Wood v. University of Utah Medical Center

RUSSON, Justice,

concurring in Chief Justice DURHAM's opinion:

T871 concur in Chief Justice Durham's dissenting opinion. In my view, the central consideration in this case is the preservation of a patient's ability to make informed medical decisions and choices based on full, open, and frank information from and discussions with his or her physician. In that regard, the cause of action presented in this case should be characterized as one for simple medical malpractice negligence arising out of the hospital's alleged failure or delay in informing the patient of the results and interpretation of certain genetic tests in connection with a pregnancy.

188 Justice Wilking' analysis concerning whether Utah recognized a cause of action for wrongful birth prior to the enactment of the Utah Wrongful Life Act ("Act") is too formalistic in its insistence that a particular label (here "wrongful birth or life") attached to a cause of action must have been specifically and explicitly adopted by this court in order for that cause of action to be said to have been recognized in Utah. What is determinative in this case, and in any case, in the application of the Berry test's threshold question of whether a statute abrogates an existing cause of action is the nature of the cause of action, not the label placed on the cause of action.

€ 89 Here, plaintiffs have brought a cause of action that, while termed "wrongful birth," simply pleads a claim for medical malpractice or negligence. This case is no different than a run-of-the-mill medical malpractice suit. Prior to the enactment of the Act, a plaintiff who was negligently given incomplete or inaccurate information by a physician upon which information she relied in making an informed choice about a particular medical procedure or treatment could maintain an action against the physician for medical malpractice or negligence if the physician's negli-genee was the proximate cause of an injury to her. The same should be true in this case.

T 90 In the instant case, plaintiffs allegedly were given delayed, incomplete, or incorrect information about genetic test results related to a pregnancy. The allegedly incorrect information or lack of information influenced the couples' medical decision regarding whether to continue the pregnancy, proximately resulting in some harm to them. In any other medical context concerning any other medical condition or procedure, such cireumstances would presumably support a cause of action for medical malpractice negli-genee. The fact that this case involves the controversial issue of abortion does not and should not affect the characterization of the cause of action or the legal analysis used to arrive at that characterization.

[91 Because the cause of action stated in this case is one for simple medical malpractice negligence, a cause of action clearly recognized in Utah prior to the enactment of the Act, and because the Act abrogates totally that cause of action, the Act must pass muster under the Berry test to be constitutional.

192 I agree with Chief Justice Durham's Berry analysis and her resulting conclusion that the Utah Wrongful Life Act is an unconstitutional violation of article I, section 11 of the Utah Constitution. Therefore, I would *462hold that the Utah Wrongful Life Act does not bar Wood's complaint, the trial court's grant of judgment on the pleadings was error, and the case should be remanded for further proceedings consistent with this opinion and Chief Justice Durham's dissent.