dissenting.
{¶ 75} Regardless of the label used in this case, I respectfully dissent, believing that traditional negligence concepts fit poorly and that the legislature should decide these controversial and major public-policy issues.
{¶ 76} I do not believe that the elements of causation and damages are adequately discussed or that the boundaries of the new tort are well defined. In the typical medical-malpractice case, a doctor who fails to meet the appropriate medical standard of care and directly causes injury to a patient will be liable for a full range of damages. As recognized by the lead opinion, liability, albeit limited, may arise for medical providers when a breach does not directly lead to an “injury,” as that term is generally understood. In the matter before us, the harm claimed by appellants includes the financial cost of caring for their disabled child. The lead opinion nonetheless limits damages that may be recovered in holding that parents of an unhealthy child may claim that their right to reproductive choice is affected when they were not informed or appropriately counseled about the fetus’s defect.
{¶ 77} In its discussion on damages, which appears before the discussion on proximate cause, the lead opinion relies on dicta in Hester v. Dwivedi (2000), 89 Ohio St.3d 575, 733 N.E.2d 1161, a case rejecting wrongful life as a cause of action. Although the parents did not present a claim themselves, Hester noted certain “financial obligations associated with parenthood.” Id. at 582, 733 N.E.2d 1161. It further characterized the parents’ potential injury as the deprivation of “the choice to avoid those expenses by terminating the pregnancy.” (Emphasis added.) Id. However, rather than allow for potential compensation for the financial obligations of parenthood, the lead opinion uses the “limited damages” *513rule established in Johnson v. Univ. Hosps. of Cleveland (1989), 44 Ohio St.3d 49, 540 N.E.2d 1370. Potential damages for the new tort are cut off because there is no proximate cause between the appellees’ alleged breach of duty and the child’s preexisting and untreatable condition.
{¶ 78} The lead opinion frankly acknowledges that appellees “did nothing to cause [Matthew’s] condition and could not have prevented it by treating either Matthew or his mother.” Because the malpractice is appellees’ failure to present information that could have led to the pregnancy’s termination, the lead opinion concludes that appellees proximately caused a continued pregnancy and birth and, as a consequence, may be liable for “pregnancy- and birth-related costs.”
{¶ 79} Yet even if we assume that a breach of duty legally affected the exercise of a protected reproductive right, the birth that ensues is not the only consequence of the breach. The harm that appellants allege in this case includes the financial costs in caring for their disabled child. As did the appellate court in this case, most states that recognize actions of this type allow recovery of at least economic damages. Arche v. United States Dept. of the Army (1990), 247 Kan. 276, 282, 798 P.2d 477. These usually include the extraordinary medical, educational, and other expenses that are associated with and are consequences of the disorder. See, e.g., id. at 292, 798 P.2d 477 (extraordinary medical expenses and other pecuniary losses until age of majority); Haymon v. Wilkerson (D.C.App.1987), 535 A.2d 880, 885-886 (extraordinary medical costs); Smith v. Cote (1986), 128 N.H. 231, 242-246, 513 A.2d 341 (medical and educational costs and extra burden of care attributable to child’s impairment); Jacobs v. Theimer (Tex.1975), 519 S.W.2d 846, 849 (expenses reasonably necessary for treating and caring for child’s physical impairment); Dumer v. St. Michael’s Hosp. (1975), 69 Wis.2d 766, 776, 233 N.W.2d 372 (additional medical and supportive expense occasioned by the child’s deformities).
{¶ 80} The lead opinion’s artificial limitation on damages illustrates that this is not a typical “claim sounding in medical malpractice rather than wrongful life or wrongful birth,” as asserted in the lead opinion. I believe that the action for lost opportunity to terminate a pregnancy is an unwarranted judicial creation.
{¶ 81} The lead opinion says that the court is not deciding whether abortion should be considered a proper course of treatment during prenatal care. Broadly read, however, the action now legally cognizable means that a health-care provider who does not fully inform a pregnant woman of her fetus’s defective condition (diagnosis) in time for an abortion (treatment) may be held liable for obstetrical costs. Specifically, a woman who seeks prenatal care and intends to continue her pregnancy only with a healthy fetus has a cause of action for an impeded abortion if she is told incorrectly that the fetus is healthy. Assuming that the mother can prove she would have aborted rather than deliver an *514unhealthy child, those who misdiagnose or fail to inform her of a fetal defect or disease are now liable on a malpractice theory. Among the unintended consequences of such a theory is that doctors in this field may respond by overstating negative findings in situations with ambiguous genetic or other data to avoid defending a suit for a lost chance of abortion.
{¶ 82} It seems incongruous that while Hester holds that a child may not be compensated for its physical birth defects through a wrongful-life action, parents may be compensated for the expenses of pregnancy and birth if they do not receive accurate prenatal information about a preexisting and untreatable defect. Even if the cause of action is not called wrongful birth, the reason supporting the action still is the fetus’s continued existence and the birth of an unhealthy child. Unless the child born is unhealthy, there is no cause of action for a woman who asserts that she would have terminated her pregnancy upon receipt of additional medical information. And unless a woman asserts that she would have terminated her pregnancy had she known of the fetus’s condition, there is no claim for a woman surprised by the birth of an unhealthy child.
{¶ 83} The syllabus does limit this newly cognizable action. Nevertheless, since a woman has the right to terminate a pregnancy for any reason within the time legally permitted, Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, why should the cause of action for a lost opportunity be confined to situations in which an unhealthy child is delivered? Any inaccurate medical information can be said to affect “the opportunity for an informed decision-making process” if a woman contends after giving birth that she would otherwise have chosen this option. Might parents eventually claim that if they had accurately known the sex of the fetus in time, there would have been no birth? Might they then recover obstetrical costs?
{¶ 84} Public policy may demand that the Ohio legislature enact a statute defining the scope of liability for those physicians and health-care providers who negligently fail to provide adequate guidance to parents about potential genetic or other defects either through prepregnancy counseling or prenatal care. On the other hand, Ohio’s public policy may also favor barring recovery of even obstetrical costs when the claim is based merely on the mother’s statement, after a birth, that she would have terminated the pregnancy had she known of undisclosed information. I disagree with the view that these choices are for judges to make. A full discussion of the competing principles and controversial issues should be left to the General Assembly, the body best equipped to allocate foreseeable risks and potential liability.
{¶ 85} Because I believe that adopting this new cause of action is unwise and cannot be justified by traditional tort concepts of causation and damage, I would leave the matter for the legislature to determine.
Lundberg Stratton and O’Donnell, JJ., J., concur in the foregoing opinion. Mark B. Smith Co., L.P.A., and Mark B. Smith; and Sandra L. Steele, for appellants and cross-appellees. Adkinson & Assoc., L.L.C., and Patrick K. Adkinson; Arnold, Todaro & Welch and Karen L. Clouse, for appellees and cross-appellants Kevin Fitzgerald, M.D. and Mt. Auburn Obstetrics & Gynecologic Associates, Inc. Dinsmore & Shohl, L.L.P., Frank C. Woodside III, Jeffrey R. Schaefer, and Robert A. Carpenter, for appellees and cross-appellants Children’s Hospital Medical Center and Martha Walker, M.S. Rendigs, Fry, Keily & Dennis, Paul W. McCartney, and Megan K. Roach, for appellee and cross-appellant Howard Saal, M.D. Davis & Young, Jan L. Roller, and Richard M. Garner, urging reversal for amicus curiae, University Hospitals of Cleveland.