What Impact Rule Is Applicable to the Tort of Wrongful Birth ?
In Kush v. Lloyd, 616 So. 2d 415, 423 n.5 (Fla. 1992), the parents of a child born with a genetic impairment initiated an action for wrongful birth against the hospital and physicians who had informed them prior to the mother's becoming pregnant that neither parent carried a genetic abnormality. See Kush, 616 So. 2d at 417. the parents sought recovery for both the expenses incurred in caring for their child as well as damages for mental anguish. See id.
This Court held the impact rule inapplicable to wrongful birth actions, and in so doing, expressed doubt that the impact rule was ever intended to embrace the tort of wrongful birth "where emotional damages are an additional 'parasitic' consequence of conduct that itself is a freestanding tort apart from any emotional injury." Id. at 422 (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts 54, at 361-65 (5th ed. 1984)).
The Court further reasoned that to the extent the impact rule does not apply to recognized torts such as defamation and invasion of privacy, which result in predominantly emotional damages, it should not preclude recovery for the mental anguish flowing from a wrongful birth, where such harm is equally foreseeable and certainly more grievous. See id. at 422 (citing Miami Herald Publ'g, 66 So. 2d at 681, and Cason, 20 So. 2d at 243).
In the words of the Kush Court:
There can be little doubt that emotional injury is more likely to occur when negligent medical advice leads parents to give birth to a severely impaired child than if someone wrongfully calls them liars, accuses them of unchastity, or subjects them to any other similar defamation.
A defamation may have little effect, may not be believed, might be ignored, or could be reversed by trial publicity.
But the fact of a child's serious congenital deformity may have a profound effect, cannot be ignored, and at least in this case is irreversible. Id. at 422-23.