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On February 8, 2018, the Oregon Supreme Court issued its opinion in Tomlinson v. Metropolitan Pediatrics, LLC et al. Plaintiffs Kerry and Scott Tomlinson (“parents”) had two children, M and T, born with Duchenne’s muscular dystrophy in 2003 and 2008. M’s physician failed to diagnose this developmental abnormality until October 2010. The parents brought suit based on the physician’s alleged negligence in failing to diagnose this condition, claiming that if defendants had timely diagnosed they would not have produced another child suffering from Duchenne’s muscular dystrophy. Plaintiffs also brought suit on behalf of their second child, T, for his “wrongful life,” arguing that if defendants were not negligent, T would not have been born. The Oregon Court of Appeals found that the parents could bring a negligence claim but their child could not and dismissed the child’s claims.

The Oregon Supreme Court held that the parents alleged facts that were sufficient to bring a claim for negligence against defendants. The Court ruled that non-patients may have a relationship to physicians because of their status as biological parents and primary caregivers. This relationship gives rise to legal protection of the parents’ interests separate, and in addition to, the patient’s interests. When Defendants provided medical care to M, Plaintiff’s first son, this “subjected [Defendants] to a standard of care requiring the exercise of reasonable professional skill and care,” including to “diagnose M’s genetic disorder and communicate that diagnosis to the parents.” By failing to diagnose the condition, Defendants failed to protect both the patient’s and parents’ separate interests.

In addition, the Court ruled that the parents should be allowed to seek noneconomic damages even as non-patients because of their relationship with M and the physician. As for T’s claim, the Court ruled that a “wrongful life” claim is not subject to legal protection against negligent conduct because the claim is based on a comparison between an impaired life (the “injury”) and nonexistence.

Link to opinion.