B.D.H. ex rel. S.K.L. v. Mickelson

Summary

The North Dakota Supreme Court affirmed summary judgment dismissing claims arising from the alleged failure to detect fetal Trisomy 21. The court held that North Dakota law bars a wrongful-life claim under N.D.C.C. § 32-03-43, including one brought on a child’s behalf by a guardian or next friend. The court further held that the parents’ potential wrongful-birth claim was barred by the two-year medical-malpractice statute of limitations and was not subject to infancy tolling.

Holdings

1. N.D.C.C. § 32-03-43 bars a child or others from maintaining a wrongful life claim on the child's behalf or receiving damages based on the assertion that, but for another's act or omission, the child would have been aborted.
2. Even assuming North Dakota law recognizes the parents' wrongful birth claim, the claim was barred as a matter of law by the two-year statute of limitations for malpractice actions because the action was not commenced until service more than two years after B.D.H.'s birth.
3. The infancy tolling provision in N.D.C.C. § 28-01-25 does not apply to the parents' wrongful birth claim because the claim belongs to the parents and is not brought by a person under eighteen years of age.

Questions Presented

1. Whether N.D.C.C. § 32-03-43 bars a wrongful life claim brought by or on behalf of a child.
2. Whether the parents' alleged wrongful birth claim was barred by the two-year statute of limitations for medical malpractice actions.
3. Whether the infancy tolling provision in N.D.C.C. § 28-01-25 applied to the parents' wrongful birth claim.

Disposition

affirmed