In This Issue

• Legislature Trims Prejudgment Interest Statute
• Eighth District Court of Appeals Rejects Claim for "Wrongful Life"

Legislature Trims Prejudgment Interest Statute

By Stuart W. Harris

For many years, according to ORC Section 1343.03, Ohio has provided prejudgment interest on contract and tort claims at the rather generous rate of ten percent per annum. Through a post-judgment motion, the winning party at trial requests that the court consider awarding prejudgment interest. Typically, the trial court will calculate the interest post-verdict rather than submitting this issue to the jury because it is an entitlement as a matter of law.

Recently, the Ohio General Assembly passed a bill (Sub. H.B. 212) which became effective as law June 6, 2004, substantially reducing that ten percent per annum to a rate determined by the Tax Commissioner based upon the federal short-term rate (which is much lower). The statute does provide, however, that the parties can set a different rate of interest in a written contract. Furthermore, the effective date of the statute is very important. Claims pending as of the effective date will have the 10% rate applicable to their claim up to June 6, 2004 and the lower rate after that date. For example, if a plaintiff prevailed in a breach of contract case in a trial today and the date the contract was breached was January 1, 2004 -- all damages associated with the breach are recoverable at the 10% rate to June 6, 2004, but at the lower rate after that date. The catch is that your lawsuit must have been filed before the effective date of the statute. Overall, this will result in much smaller interest recoveries on claims and provide much less incentive to timely resolve those claims.

The Ohio General Assembly made additional changes affecting personal injury or tort claims. Specifically, for judgments based on tortious conduct, the plaintiff must file a motion and the court must hold a hearing to determine whether the defendant failed to make a good faith effort to settle the case and that the plaintiff did not fail to make such a good faith effort. A party will be deemed to have made a good faith effort to settle if the party (1) fully cooperated in discovery; (2) rationally evaluated his or her risks and potential liability; (3) did not attempt to unnecessarily delay the proceedings; and (4) made a good faith monetary settlement offer or responded in good faith to an offer from the other party.

Depending on the outcome of this decision, the interest shall be calculated using the longer of the following periods: from the date the plaintiff first gave notice of the claim to the date of judgment, provided the plaintiff made a reasonable attempt to determine if the defendant had insurance coverage and gave written notice in person or by certified mail to both the defendant and any identified insurer that the cause of action has accrued; or from the date of filing of the complaint to the date of judgment. A longer period is utilized when the defendant's actions are not in good faith. If the defendant admitted liability in the defendant's answer or another pleading, the interest will be calculated from the date the cause of action accrued. If the defendant engaged in the conduct resulting in liability with the deliberate purpose of causing harm to the plaintiff, the interest will be calculated from the date the cause of action accrued.

Finally, with regard to tort claims, the act "precludes any court from awarding interest on future damages that are found by the trier of fact." See Sub. H.B.212 Bill Analysis (Legislative Service Commission website). Additionally, the act provides that its prejudgment interest provisions do not apply to a judgment rendered in a civil action based on tortious conduct if a different period for computing interest on it is specified by law. Finally, the provisions do not apply if the decision is rendered in an action against the state in the Court of Claims, or in an action under the Workers' Compensation Act. For the full text of the bill consult www.legislature.state.oh.us, or visit www.lsc.state.oh.us. for an analysis of the bill.

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Eighth District Court of Appeals Rejects Claim for "Wrongful Life"

By Jennifer L. Mackanos
(Second-year law student Sean Culley contributed to this article.)

Would it be better for some people to have never been born? In a recent decision by the Court of Appeals of Ohio for the Eighth District, the Court effectively said "no." Coleman v. Dogra (2004), 157 Ohio App.3d 530, (Ohio App. 8 Dist.) involved a mother whose physician failed to diagnose a genetic disease in the fetus Coleman was carrying. The physician who examined the images of the fetus was unable to detect the disorder due to the inability of the ultrasound device to get a clear picture of the fetus' head.

Believing she was carrying a normal, healthy fetus, Coleman took no action to terminate the pregnancy. Five months after the ultrasound, Coleman delivered San'Tara Coleman. The symptoms of the disorder were immediately observable – San'Tara was born with facial deformities and irregular breathing. After the birth, Coleman was told by genetic doctors that the disease, holoprosencephaly, should have been detected by a regular ultrasound. They also notified her that, even had the disease been detected prior to the birth, modern medicine provided no remedy for the infant's condition. San'Tara died seven months later.

Coleman filed a medical malpractice suit against Dr. Dogra. However, Coleman's claims weren't typical medical malpractice claims. Rather, they were specialized claims known generally as "prenatal torts." There are three generally recognized prenatal torts: wrongful conception, wrongful birth, and wrongful life. These claims do not fall under Ohio's wrongful death statute, and so are treated as hybrid medical malpractice claims. Coleman filed a claim for wrongful birth, and filed a claim on behalf of San'Tara for wrongful life.

Wrongful conception involves a claim by the parents of a child that, but for the physician's negligence in performing a sterilization procedure, the child would not have been conceived. Generally, these claims seek monetary damages for the expenses associated with the pregnancy and delivery of the child, as well as compensation for expenses incurred by the parents in raising the child to the age of majority. These claims are valid under Ohio law, and generally courts allow the parents to recover money they spent on medical care during pregnancy and birth, and even allow the parents to recover for loss of consortium and lost wages during pregnancy. See Johnson v. Univ. Hosps. Of Cleveland (1989), 44 Ohio St.3d 49. However, courts refuse to allow parents to recover for the expenses involved in raising the child. Ohio courts have held that the birth of a normal, healthy child is not an injury, and so they permit parents to recover only to the extent that they expended money and effort during the pregnancy and delivery of the child. Id. at 58.

Wrongful birth claims are brought by the parents of a child and allege that, because of a physician's failure to promptly diagnose a serious birth defect, the parents were not given an opportunity to exercise their right to terminate the pregnancy. Generally, in these suits parents seek damages for the extraordinary costs associated with caring for a seriously disabled child not only for the term of the child's minority, but into the age of adulthood as well. Jurisdictions throughout the country are split as to whether such claims are viable. More than 20 states have recognized these claims, but eight states have judicially rejected them, and five states have passed statutes denying recovery for them. Coleman, 157 Ohio App.3d at ¶ 26. Wrongful birth claims have not been specifically approved by the Ohio Supreme Court or the Ohio General Assembly. But in Coleman, the Eight District Court of Appeals joined the First and Fourth Districts in finding that such claims are valid. Coleman, 157 Ohio App.3d at ¶ 27.

Wrongful life claims are brought by the child or the estate of a deceased child. Similar to a parent's wrongful birth claim, in a wrongful life claim the child alleges that the physician's failure to diagnose her disease resulted in the parents' failure to terminate the pregnancy, and, as a result, the child is forced to live a life of pain and suffering that she would otherwise not have lived. Essentially, the child seeks relief under a claim that she would have been better off if she had never been born. Courts widely reject these claims, saying that determinations as to whether any person would have been better off if she had never been born are best left to theologians and philosophers. Essentially, however, courts are simply unwilling to say that anyone's life, no matter how horrible, should never have begun. In Coleman, the court concluded that "the status of being alive simply does not constitute injury." Coleman, 157 Ohio App.3d at ¶ 23, citing Hester v. Dwivedi, 89 Ohio St.3d 575, 588 (2000).

While the court was unwilling to grant relief to the estate of San'Tara Coleman based on the wrongful life claim, the case was remanded to trial to determine if Lois Coleman had demonstrated facts entitling her to damages on account of her own emotional distress suffered because of Dogra's failure to properly diagnose the pregnancy and afford her an opportunity to terminate it. Additionally, the court affirmed Coleman's claim for wrongful birth, remanding the issue to the trial court for further proceedings. Nevertheless, the Court's conclusion that the claim for wrongful life should be dismissed indicates that, at least for the time being, claims for wrongful life are not likely to be recognized by Ohio courts.

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