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The Oregon Court of Appeals has ruled that Kerry and Scott Tomlinson can go forward with $11 million of a $23 million lawsuit seeking damages after they gave birth to a second son with Duchenne muscular dystrophy. The suit faults Portland-area medical staff for allegedly failing to perform genetic tests that would have identified the disorder in an older son.

(Beth Nakamura/The Oregonian/File photo)

The Oregon Court of Appeals ruled last week that the parents of a boy with muscular dystrophy can go forward with an $11 million "wrongful birth" lawsuit, which claims they never would have conceived their son had doctors told them of the genetic risks.

Kerry and Scott Tomlinson claim that their pediatrician and Legacy Emanuel Medical Center staff in Portland were negligent in failing to timely recognize that an older son had Duchenne muscular dystrophy. The serious neuromuscular disorder is characterized by weakened muscles, the loss of an ability to walk, paralysis and ultimately a premature death.

The disease primarily affects boys, who are most often diagnosed between ages 3 and 5. But the couple's older son wasn't diagnosed until he was about 7, according to the appeals court summary of the case. By then, the Tomlinsons had already given birth to their younger son, Teddy.

The Tomlinsons then learned that parents who have conceived one son with Duchenne muscular dystrophy have a 50 percent chance of having future sons with the disorder.

In 2011, the Tomlinsons filed a lawsuit that originally sought $23 million.

The Tomlinsons sought $10 million for themselves in noneconomic damages -- commonly known as "pain and suffering" -- for the "extraordinary physical demands in caring for, transporting and assisting Teddy," according to their suit. They also sought about $1 million for the medical, education and support expenses Teddy will generate up until he's an adult because of his disability.

The lawsuit also had sought $10 million for Teddy's pain and suffering -- which includes the knowledge that he will die a premature death and cause his parents grief because of that. The suit also sought another $2 million for Teddy's loss of earning capacity. The suit states that he never will be able to hold down a job.

In arguments to Multnomah County Circuit Judge Jean Maurer, the Tomlinsons' attorneys shunned the terms "wrongful birth" and "wrongful life" -- writing that any "'wrongfulness' lies not in the life, the birth, the conception, or the pregnancy, but in the negligence of the physician."

The judge threw out the lawsuit. In 2012, after the defense made several arguments -- including that the lawsuit lacked legal standing because Teddy, the younger son, hadn't been a patient of theirs -- only Manny, their older son, had been. And Manny hasn't been hurt by his relatively late diagnosis.

But the appeals court last week ruled that the lawsuit could go forward because the law allows plaintiffs to sue doctors for damages suffered even if the plaintiffs hadn't directly been patients of the doctors. The appeals court ruled that as parents, the Tomlinsons had a legitimate claim.

The appeals court, however, agreed with the lower court judge's decision to dismiss the claims of Teddy, the younger son, from the lawsuit -- based on the argument that he should be compensated for his suffering from the genetic disorder. That means his $12 million worth in claims won't go forward.

Attorneys for the defense successfully had argued that the law didn't allow Teddy to sue for damages suffered by the very fact that he is alive. The defense also contended that a dollar figure can't legally be placed on how badly their younger son -- Teddy -- has suffered by being born.

"According to defendants, Teddy alleged that he has been damaged by the fact of his existence," reads the appeals court summary of the case. "Significantly, defendants asserted that 'life' has not been recognized in Oregon as a compensable harm."

As of last week's appeals court ruling, Manny was 12. Teddy was 7.

The lawsuit lists the following people or organizations as defendants: Metropolitan Pediatrics in Northwest Portland; Legacy Emanuel Hospital & Health Center in North Portland; and Mary K. Wagner, M.D., who has since moved to the Spokane area.

Read the appeals court's opinion here. Last week's ruling was made by a three-judge panel: Rick Haselton, Erin Lagesen and David Schuman.

-- Aimee Green

503-294-5119

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