## Facts

- Patricia Shull contracted cytomegalovirus (CMV) during the first trimester of pregnancy.
- The parents alleged physicians and a medical center failed to diagnose the CMV infection and failed to inform them of fetal risks.
- The parents did not allege defendants caused the CMV exposure or could have treated the infection.
- The parents alleged that, if informed of CMV and its risks, they would have terminated the pregnancy.
- Their son was born with CMV and severe, permanent disabilities requiring extensive care.
- The parents sued for medical malpractice under a wrongful-birth theory, seeking damages tied to the alleged failure to diagnose and disclose.
- The district court granted partial summary judgment limiting damages to pregnancy-related medical costs (offset by the cost of termination) and certified the ruling for interlocutory review.
- The Oklahoma Supreme Court accepted review and applied de novo review to the summary-judgment ruling.

## Issues

1. In a wrongful-birth medical malpractice action involving the birth of a severely disabled child, what categories of damages are recoverable: only pregnancy-related costs, or also extraordinary disability-related expenses and other losses?
2. May parents recover non-economic damages such as emotional distress or loss of consortium in this wrongful-birth context?
3. If extraordinary expenses are recoverable, what is the permissible time period for such recovery?

## Decision

- The Supreme Court reversed the certified interlocutory partial summary judgment and remanded.
- The Court held that recoverable damages are limited to extraordinary medical expenses and other pecuniary losses proximately caused by the negligence, not the ordinary costs of raising a healthy child.
- The Court rejected limiting damages to only the costs of continuing the pregnancy (with an abortion-cost offset).
- The Court held parents may not recover for emotional distress or loss of consortium in this setting.
- The Court limited extraordinary-expense recovery to the shorter of the child’s life expectancy or the age of majority.

## Legal Principles

- Wrongful-birth claims based on negligent diagnosis or disclosure may support damages for pecuniary losses attributable to the lost opportunity to make an informed decision about continuing the pregnancy.
- Damages are confined to extraordinary, disability-related medical and associated pecuniary expenses proximately caused by the malpractice; ordinary and foreseeable child-rearing expenses for a healthy child are not recoverable.
- Proximate cause limits recovery to losses fairly tied to the negligent failure to diagnose and inform, rather than to the mere fact of the child’s existence.
- Parents cannot recover non-economic damages for emotional distress or loss of consortium in this wrongful-birth framework.
- Extraordinary-expense damages are capped temporally at the shorter of the child’s life expectancy or the age of majority.

## Conclusion

The Oklahoma Supreme Court set the measure of damages for wrongful birth involving a disabled child: parents may recover only extraordinary disability-related pecuniary losses proximately caused by malpractice, within a defined time limit, and may not recover ordinary child-rearing costs or non-economic damages such as emotional distress or loss of consortium.


Shull v. Reid, 258 P.3d 521 (Okla. 2011)