[Excerpt] “More than twenty years ago, in Smith v. Cote, the New Hampshire Supreme Court held “that New Hampshire recognizes a cause of action for wrongful birth.” After so holding, the court then discussed the damages available to a prevailing wrongful-birth plaintiff. Among other things, the court held that when parental emotional distress associated with raising a disabled child, born after the mother had received negligent pre-natal assurance of the baby‘s normal health, “results in tangible pecuniary losses, such as medical expenses or counseling fees, such losses are recoverable.” The court further held that a wrongful-birth plaintiff may not recover intangible damages for the ongoing emotional distress associated with raising a disabled child who was carried to term as a result of negligent prenatal care. However, because it was not raised on appeal, the Smith opinion did not address an alternative basis for recovering emotional-distress damages—Linda Smith‘s claim under Corso v. Merrill for the emotional distress associated with witnessing the birth of her disabled daughter after she had been assured that her daughter would be born healthy. I argue that while it seems unlikely that the New Hampshire Supreme Court would give wrongful-birth plaintiffs a Corso claim, the court, if presented with the correct legal question, could well rule that wrongful-birth plaintiffs may recover for the emotional distress they suffer as a result of witnessing the birth of an unexpectedly disabled child.
I begin with a brief discussion of the facts of Smith and the nature of a cause of action for wrongful birth. Next I examine the salient points of Corso and describe the parental-bystander doctrine the New Hampshire Supreme Court adopted in that case. In the following section, I assay the application of Corso to Smith, both as a logical matter and in terms of case law from other jurisdictions. Finally, I reframe the question from the one posed by the pleadings in Smith, i.e., whether a wrongful-birth plaintiff also has a Corso claim, and address the question that really matters: whether a wrongful-birth plaintiff in New Hampshire can recover for the emotional distress associated with witnessing the birth of an unexpectedly disabled child. Based upon both out-of-state authority and New Hampshire precedent, I conclude that a wrongful-birth plaintiff in New Hampshire should be able recover such damages even without a Corso claim.”
Parker B. Potter, Jr. , Stepping Beyond the Smith Plaintiffs‘ Reliance on Corso: An Alternative Approach to Recovering Emotional-Distress Damages in Wrongful-Birth Cases in New Hampshire, 7 Pierce L. Rev. 327 (2009), available at http://scholars.unh.edu/unh_lr/vol7/iss3/4