## Facts

- Before marriage in 1976, Amy Viccaro and her future husband consulted Dr. Aubrey Milunsky, a physician specializing in genetics and genetic counseling, due to Amy’s family history of ectodermal dysplasia.
- Dr. Milunsky advised that Amy neither had the disorder nor was likely to have an affected child.
- Relying on that advice, the couple married and decided to have children.
- Their first child (born 1980) was healthy.
- Their second child, Adam (born 1984), was born with severe anhidrotic ectodermal dysplasia, requiring lifelong special medical care and causing substantial pain and suffering.
- The parents sought damages including emotional distress and extraordinary expenses for Adam’s care, support, and education, and also claimed losses framed as the loss of companionship, services, and earnings of a “normal” child.
- In federal litigation, the district court certified questions of Massachusetts law to the Massachusetts Supreme Judicial Court regarding the parents’ and child’s potential claims and recoverable damages.

## Issues

1. Whether Massachusetts recognizes a parental cause of action against a physician for negligent preconception genetic counseling that foreseeably leads to the birth of a child with genetic impairments.
2. If so, what damages are recoverable by the parents, including whether extraordinary disability-related expenses are recoverable and whether damages based on comparison to a hypothetical “normal” child are permitted.
3. Whether Massachusetts recognizes an impaired child’s independent “wrongful life” claim based on the theory that, absent negligent preconception counseling, the child would not have been born.

## Decision

- The court recognized a cause of action by the parents for negligent preconception genetic counseling when the physician owed a duty of reasonable care and foreseeable harm resulted.
- The court held the parents may seek recovery for emotional distress (subject to ordinary proof requirements) and extraordinary expenses attributable to the child’s disability, including care, support, and education.
- The court rejected parental damages premised on valuing the loss of a hypothetical “normal” child, including loss of companionship, services, and earnings of a “normal” child.
- The court rejected the child’s independent wrongful life claim.

## Legal Principles

- A physician providing preconception genetic counseling owes the prospective parents a duty to exercise reasonable professional care, and negligence principles apply when foreseeable injury results.
- In negligent genetic-counseling cases, parents may recover extraordinary, disability-related costs proximately caused by the negligence and may seek emotional distress damages consistent with general tort standards.
- Damages requiring comparison between the actual child and a hypothetical “normal” child are not recoverable because they depend on speculative and conceptually problematic valuation.
- Massachusetts does not recognize wrongful life claims because determining damages would require comparing life with impairments to nonexistence, a measure not cognizable in tort.

## Conclusion

Massachusetts recognized a parental negligence claim based on preconception genetic counseling and permitted recovery of emotional distress and extraordinary disability-related expenses, but barred “normal child” comparison damages and refused to recognize the impaired child’s wrongful life cause of action.


Viccaro v. Milunsky, 551 N.E.2d 8 (Mass. 1990)