## Facts

- Medical providers treated the Tomlinsons’ older child (M) and allegedly failed to timely diagnose and disclose Duchenne muscular dystrophy (DMD), an X-linked genetic disorder, over a period ending with diagnosis in 2010.
- Before M’s diagnosis, the parents conceived and had a second child (T), who was later diagnosed with DMD.
- The parents alleged that timely diagnosis and disclosure of M’s condition would have changed their reproductive decisions and avoided conceiving another child with DMD.
- The parents sought damages for their own emotional distress and related harms based on deprivation of information material to reproductive decisionmaking.
- T, through a guardian ad litem, sought damages for distress and other harms from being born with DMD, premised on the theory that he had an interest in not being born (or not being born with the impairment).
- The trial court dismissed all claims for failure to state a claim; the court of appeals reinstated the parents’ claims but affirmed dismissal of T’s claim; the Oregon Supreme Court granted review.

## Issues

1. Whether non-patient parents may state a negligence claim against medical providers based on failure to diagnose and communicate a child’s genetic disorder when the asserted injury is deprivation of information affecting reproductive choice.
2. Whether a later-born child may state a negligence claim based on being born with a genetic impairment when the theory depends on a legally protected interest in not being born (or not being born impaired).

## Decision

- The Oregon Supreme Court held the parents stated a cognizable negligence claim and allowed their claims to proceed.
- The Court held T did not plead a legally cognizable injury under Oregon negligence law and affirmed dismissal of his claim.
- The Court affirmed in part and reversed in part and remanded for further proceedings on the parents’ claims.

## Legal Principles

- In Oregon negligence law, liability is not categorically limited to formal professional relationships; the focus is whether a defendant unreasonably created a foreseeable risk of harm to a plaintiff’s legally protected interests.
- A parent’s legally protected interest in informed reproductive decisionmaking can support a negligence claim when a provider’s diagnostic and informational failures foreseeably deprive the parent of material information.
- At the pleading stage, the question is whether a cognizable injury is alleged; the ultimate scope and measure of damages are addressed later.
- A child’s negligence claim fails where it depends on an asserted legal interest in nonexistence and where the alleged negligence did not cause the child’s genetic condition or any physical harm distinct from the fact of being born.

## Conclusion

The court permitted parents to pursue negligence claims framed as loss of information affecting reproductive choices, but it rejected a later-born child’s claim because Oregon negligence law does not recognize an injury premised on a right not to be born and the providers’ conduct did not cause the child’s genetic impairment.


Tomlinson v. Metro. Pediatrics, LLC, 362 Or. 431, 412 P.3d 133 (Or. 2018)