Justice Stegall denounces Kansas Supreme Court’s refusal to overrule ‘black mark’ decision

Divided court stops at affirming law forbidding wrongful birth lawsuits

By: - May 1, 2021 12:43 pm
Kansas Supreme Court Justice K.J. Wall, second from right in the middle row, authored the unanimous opinion allowing Kansas prosecutors to count DUI convictions from Missouri when deciding whether to charge someone in Kansas as a repeat felony offender. (Screen capture/Kansas Reflector)

Kansas Supreme Court Justice K.J. Wall, second from right in the middle row, authored the unanimous opinion allowing Kansas prosecutors to count DUI convictions from Missouri when deciding whether to charge someone in Kansas as a repeat felony offender. (Screen capture/Kansas Reflector)

TOPEKA — Kansas Supreme Court Justice Caleb Stegall argued the state’s highest court correctly affirmed constitutionality of a ban on wrongful birth lawsuits but should have gone further to erase a dark moment in court history by overruling a decision allowing discrimination against fetuses with severe disabilities.

Stegall, who was chief counsel to Gov. Sam Brownback when the 2013 law in question was signed, said upholding that statute was insufficient to remove the “unrepudiated black mark in our jurisprudential past.” He expressed dismay the Supreme Court refused to also spike the 1990 Supreme Court decision in Arche v. United States recognizing a theory of negligence that allowed a woman to seek damages against a health care provider when asserting she would have had an abortion if told of undesirable physical traits of the fetus.

The Kansas Supreme Court unanimously reversed a lower court ruling that found a 2013 state worker compensation law to be unconstitutional. Members of the court, seated from left: Justice Eric Rosen; Chief Justice Marla Luckert; Justice Dan Biles. Standing from left: Justice Caleb Stegall; Justice Evelyn Wilson; Justice K.J. Wall. Not pictured: Melissa Taylor Standridge, who was recently appointed to the court. (Kansas Supreme Court/Kansas Reflector)
Kansas Supreme Court Justice Caleb Stegall, back left, joined the majority to affirm a 2013 law blocking wrongful birth lawsuits, but argued the court also should overrule a 1990 decision allowing discrimination against disabled fetuses. (Kansas Supreme Court/Kansas Reflector).

“This case should be resolved by overruling one of the worst decisions in our court’s history,” said Stegall, Brownback’s lone appointee to the Supreme Court. “In Arche, the Kansas Supreme Court said quite loudly that under Kansas law, some lives are worth more than others.

“And worse, that the lost opportunity to end some lives is actually worth money in a civil lawsuit,” he wrote in a concurring opinion issued Friday. “Who gets to decide which traits count as undesirable enough for the law to recognize the lost chance to abort as a true injury?”

The legal dispute emerged from a lawsuit filed in Riley County by a couple who sued because they weren’t informed by a prenatal doctor of the severe brain abnormality observable from a January 2014 ultrasound of the fetus. The couple claimed they would have sought an abortion if not for the physician’s negligence. Subsequent testing led to disclosure of profound disabilities shortly before birth of a girl in May 2014.

An attorney for Alysia Tillman and Storm Fleetwood asserted his clients had a common law right to sue because Kansas’ Bill of Rights outlined a right to jury trial. The couple sought to recover costs of a lifetime of medical treatment, attendant care and therapy for a child with permanent neurological, cognitive and physical impairments. Plaintiffs argued physician Katherine Goodpasture engaged in medical malpractice for failing to timely report the fetus had an “irregularly shaped fluid-filled space in the brain” diagnosed as a rare birth defect known as schizencephaly.

In response, Goodpasture’s counsel argued the damage claim was prohibited by the 2013 law blocking wrongful birth lawsuits.

Kansas Supreme Court Justice Eric Rosen authored a dissent raising concern a 2013 state law immunized medical professionals from liability in cases of alleged medical malpractice in prenatal care and genetic counseling. (Sherman Smith/Kansas Reflector)

The Riley County District Court dismissed the suit and the Kansas Court of Appeals affirmed that action. A divided Supreme Court agreed with the lower courts.

In the majority opinion written by Justice Dan Biles, the Supreme Court said the constitutional right to a jury trial and to seek a remedy didn’t prevent the Kansas Legislature from eliminating the 1990 right to sue in the wrongful-birth category of medical malpractice.

Chief Justice Marla Luckert authored a dissent that found unconstitutional the 2013 law blocking wrongful birth lawsuits because it infringed on the inviolate right to trial.

“The essence of their claim rests on whether Tillman’s physician had a duty to tell her the truth about the test results so she could make an informed decision about her medical treatment,” Luckert said. “This is the essence of a medical malpractice action based on the theory of a duty to ensure a patient’s informed consent.”

Attorney General Derek Schmidt, a candidate for the 2022 Republican nomination for governor, praised the Kansas Supreme Court’s decision upholding a statute abolishing wrongful-birth lawsuits because births were cause for celebration not litigation. (Tim Carpenter/Kansas Reflector)

In a separate dissent, Justice Eric Rosen said the court’s majority and Stegall would immunize medical professionals from liability for malpractice related to prenatal care and genetic counseling.

“Not only this,” Rosen wrote, “they would immunize those who would willingly withhold information from a pregnant woman in an effort to prevent the patient from choosing abortion. I cannot reconcile these positions with the Kansas Constitution’s protection of personal autonomy, which grants all individuals the right to make decisions regarding their body, health, family formation and family life that can include whether to continue a pregnancy.”

Attorney General Derek Schmidt, who is a Republican candidate for governor, said he appreciated the Supreme Court’s decision in Tillman and Fleetwood v. Goodpasture to preserve state statute preventing wrongful-birth claims. The attorney general’s office entered the dispute to defend the constitutionality of the 2013 law.

“I am pleased we have successfully defended this important statute enacted by the Legislature,” Schmidt said. “In Kansas, the birth of a child should be cause for celebration, not for the law to award damages because the child was ‘wrongfully’ born.”

In 2013, Brownback signed a bill that also declared life began at fertilization, banned sex-selection abortions, prohibited tax breaks or deductions for abortion services, blocked abortion providers from participating in public school sex education classes and required doctors to tell women abortions could raise their risk of breast cancer.

Republican Sam Brownback was Kansas governor in 2013 when he signed an anti-abortion bill inspired by a belief “all life is sacred” and that civil suits claiming damages for wrongful births should be prohibited. (Screen capture/Kansas Reflector)

“All human life is sacred. It’s beautiful,” Brownback said at the bill-signing ceremony at the Capitol. An Associated Press photograph of the event showed a piece of paper on the governor’s desk with a handwritten note that said “JESUS + Mary.”

During the September oral argument before the Supreme Court, the attorney representing the Riley County parents said justices should allow to stand the 1990 Supreme Court precedent recognizing wrongful birth as a feature of medical malpractice law.

Kansas City-area attorney Lynn Johnson said his clients should be given the opportunity at trial to recover monetary damages because a physician deprived them of a right to make informed health decisions. He argued Kansans shouldn’t be locked out from holding a doctor accountable for negligence just because the Legislature “doesn’t like abortion.”

On the contrary, Salina attorney Jacob Peterson said, it would be “somewhat crass and somewhat wrong” if the court declared birth of “this child, this living being” sufficient reason to advance a medical malpractice lawsuit. He said a trial in this case would recognize one life was more valuable than another in Kansas.

“That is a value judgment that is simply foreign to a traditional negligence-type analysis,” Peterson said.

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Tim Carpenter
Tim Carpenter

Tim Carpenter has reported on Kansas for 35 years. He covered the Capitol for 16 years at the Topeka Capital-Journal and previously worked for the Lawrence Journal-World and United Press International. He has been recognized for investigative reporting on Kansas government and politics. He won the Kansas Press Association's Victor Murdock Award six times. The William Allen White Foundation honored him four times with its Burton Marvin News Enterprise Award. The Kansas City Press Club twice presented him its Journalist of the Year Award and more recently its Lifetime Achievement Award. He earned an agriculture degree at Kansas State University and grew up on a small dairy and beef cattle farm in Missouri. He is an amateur woodworker and drives Studebaker cars.