Nature of the Case
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Facts
P became pregnant and was under the care of Ds. On April 8, 1979, P complained of nausea, abdominal pain and a late menstrual period. Ds prescribed Keflex and recommended that P undergo a pregnancy test if her menstrual period did not begin. Two days later, P again consulted Ds, complaining of an itchy rash and a slight fever. Ds diagnosed Linda's condition as an allergic reaction to Keflex. Sometime thereafter, Ds determined that she was pregnant. On August 3, 1979, P underwent a rubella titre test. P had been exposed to rubella. P was in the second trimester of pregnancy. On January 1, 1980, she gave birth to a daughter, Heather, who is also a plaintiff in this action. Heather was born a victim of congenital rubella syndrome. Heather suffers from bilateral cataracts, multiple congenital heart defects, motor retardation, and significant hearing impairment. She is legally blind and has undergone surgery for her cataracts and heart condition. Ps sued Ds claiming Ds negligently failed to test for and discover in a timely manner her exposure to the disease. Ps claim that Ds negligently failed to advise P of the potential for birth defects in a fetus exposed to rubella, thereby depriving her of the knowledge necessary to an informed decision as to whether to give birth to a potentially impaired child. Ps contend that if P had known of the risks involved she would have obtained a eugenic abortion. P seeks damages for her emotional distress, for the extraordinary maternal care that she must provide and for the extraordinary medical and educational costs she has sustained and will sustain in rearing her daughter. P seeks damages, under the parental bystander doctrine for the emotional injury, including depression, attributable to the impact of her observation of Heather's defects at and after Heather's birth. Heather seeks damages for her birth with defects, for the extraordinary medical and educational costs she will sustain, and for the impairment of her childhood attributable to her mother's diminished capacity to nurture her and cope with her problems. Ds moved to dismiss. The Superior Court certified four questions of law: Does New Hampshire recognize a wrongful birth cause of action; if so, does New Hampshire allow recovery for emotional distress, extraordinary maternal child care, and the extraordinary medical, institutional and other special rearing expenses necessary to treat the child's impairments; Does New Hampshire law recognize a cause of action for wrongful life; if so what general and specific damages may the child recover in such an action?
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