Payne ex rel. Payne v. Myers
In Payne ex rel. Payne v. Myers, 743 P.2d 186 (Utah 1987) the Court was presented with a wrongful birth claim, but decided the appeal without determining whether a cause of action for wrongful birth existed in Utah.
The court stated, "assuming, but not deciding, that Utah jurisprudence should recognize an action for wrongful birth, it is necessary to determine when the parents' cause of action accrued."
The court then held that plaintiffs' hypothetical claim for wrongful birth was barred in any event by governmental immunity because plaintiffs did not file a notice of claim within one year of when the alleged injury accrued. Id. at 189-90.
In Payne ex rel. Payne v. Myers, plaintiffs alleged wrongful birth and the court found that a duty existed that the doctors may have breached in providing negligent medical advice regarding potential birth defects of a fetus. Id. 743 P.2d at 189-90.
After finding a duty and a possible breach, this court concluded that the "parents had a remedy against the state defendants for injuries arising out of the negligent acts of State employees . . . ." Id.743 P.2d at 190.
Finally, the Court held that "the parents were not denied the guarantees of article I, section 11 because when their wrongful birth claim arose they still had an opportunity to seek redress in the courts." Id. . Specifically, the Payne court observed that the parents in that case "had a remedy against the . . . defendants for injuries arising out of . . . negligence," i.e., their claim for wrongful birth, but that their failure to follow procedural requirements extinguished the claim. "Had they given timely notice of claim, they might have obtained judgment . . . ." Id.
The court in Payne expressly held that a duty existed in the parental counseling context. Justice Howe, for a unanimous court, wrote:
"The increased ability of health care professionals to predict and detect the presence of fetal defects and the capacity to assess risk factors associated with unborn and even unconceived children have considerably enhanced the importance of genetic counseling . . . . Courts accordingly have recognized that physicians who perform testing and provide advice relevant to the constitutionally guaranteed procreative choice . . . have a corresponding obligation to adhere to reasonable standards of professional performance." Id.743 P.2d at 189 .