Blake v. Cruz , 108 Idaho 253 ( 1985 )

HUNTLEY, Justice.

This appeal presents two questions of first impression for this court: (1) whether to recognize a cause of action for “wrongful birth”, an action brought by parents against a physician whose professional negligence resulted in the birth of a child with congenital defects; and (2) whether to recognize a cause of action for “wrongful life”, where the action is brought by or on behalf of a child against a physician whose negligence caused the child’s birth.

We are also called upon to determine when the statute of limitations commences to run on a wrongful birth action. The trial court held, in granting the defendant’s motion for summary judgment, that the wrongful birth cause of action accrued, not at the time of birth, but rather at the time of the doctor’s negligent act, resulting in the action not having been timely filed. The court further held that wrongful life is not a recognized cause of action in Idaho. It is from this judgment that the plaintiffs appeal. We reverse in part and affirm in part and remand for further proceedings consistent herewith.

On November 29, 1974, Sharron Blake went to the Kamiah Clinic and was examined by Dr. Cruz. She had not been feeling well and suspected that she might be pregnant. She also thought that she might have rubella (German measles), as she had a rash on her neck and had recently been exposed to rubella when her son had the disease. She specifically requested that the doctor test her for both pregnancy and rubella.

Dr. Cruz determined that Mrs. Blake was in the early stages of pregnancy. He diagnosed the rash as roseola and told her that she did not have rubella. He did not draw any blood samples in order to run rubella titer tests to confirm his diagnosis, and he failed to advise her that it was important to have such tests done as soon as possible. (The titer test is the only available definitive diagnostic tool for rubella.) Dr. Cruz informed Mrs. Blake that he was not delivering babies and advised her to see an obstetrician. On December 8, 1974 she saw Dr. Oh who immediately took blood samples to perform the titer test on that and one later date. The results were inconclusive because it was already beyond the appropriate testing period. Dessie Amindia Blake was born on July 3, 1975. The complaint in this case was filed Tuesday, July 5, 1977.

At two weeks of age Dessie was diagnosed as a rubella baby suffering from severe congenital defects. She has nerve deafness, with a 100% hearing loss in her right ear and a 75 decibel loss in her left ear. She wears two hearing aids and her speech is extremely limited. She has visual problems caused by scarring of the retina, a condition which causes vision to be cloudy and spotty, and for which there is no means of correction. She has heart malfunctions which involve deformities of both the valves and arteries and which will eventually require open heart surgery. At the age of three months Dessie was further diagnosed as being grossly hyptonic (Hyptonia is “[a] condition of abnormally diminished tone, tension, or activity,” Dorland’s Illustrated Medical Dictionary 717 (24th ed. 1965)), with poor head control, and suffering from motor retardation.

The family was forced to move from the rural atmosphere of Kamiah, Idaho to a metropolitan area of Ohio in order to have access to the type of special education and medical attention Dessie requires, as well as to be able to earn enough money to pay for her extraordinary needs. At the time the Blakes made the move, the only special education for the deaf available in Idaho was a residential school in southern Idaho, and Mr. and Mrs. Blake did not want to send their daughter away from home at age three, to be away for the duration of her schooling. Mrs. Blake is a cosmetologist, and formerly ran a successful salon of her own on a full-time basis. Because of Dessie’s needs, she is now able to work only one day per week, despite the family’s crushing financial burdens.

Dessie requires constant therapy and must see a battery of doctors, therapists and other specialists. She has heart, eye and ear specialists, as well as an audiologist and speech therapist. She has already undergone eye surgery and will have to undergo her open heart surgery by the age of six. Her hearing aids must be replaced every two to three years at a minimum cost of $800, and she needs new ear molds and plugs every three to six months. Dessie attends special education classes for the deaf, but her learning capacity remains uncertain. Her parents have also had to attend classes and meetings themselves in order to learn how to communicate with Dessie and how to live with and rear a child with her disabilities.

Dessie’s earning capacity is greatly diminished, and she can expect to continue to incur substantial medical and hospital expenses throughout her lifetime.

The Blakes contend that had Mrs. Blake been positively diagnosed as having rubella she would have had an abortion.

The procedural posture of this case is significant in determining this appeal. On motion for summary judgment, the facts are to be liberally construed in favor of the parties opposing the motion and those parties are to be given the benefit of all inferences which might reasonably be drawn from the evidence. Farmer’s Insurance Company of Idaho v. Brown, 97 Idaho 380, 544 P.2d 1150 (1976).

Therefore, we must assume that: (1) Mrs. Blake did have rubella at the time of her examination by Dr. Cruz; (2) had a blood sample been taken by Dr. Cruz on the date of Mrs. Blake’s visit to him, the proper tests would have established conclusively that she had rubella; (3) Dr. Cruz was negligent in his medical treatment of Mrs. Blake; and (4) had Mrs. Blake been positively diagnosed as having rubella she would have had the fetus aborted.

I. WRONGFUL BIRTH

Wrongful birth is a cause of action in the family of an infant, which imposes liability on a defendant for damages and expenses incurred by the parents of a child born with birth defects when, but for the negligence of the defendant, the child would not have been conceived or carried to term. Annot., 83 A.L.R.3d 15 (1978). Its premise is that but for the negligence of the defendant, the child would not have been born.

In this type of action the parents of a child born with birth defects assert that the physician’s negligence precluded their making an informed decision about whether to have a child, and that they would have avoided conception or terminated the pregnancy had they been properly advised of the risk of congenital impairment. E.g., Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 656 P.2d 483 (1983); Schroeder v. Perkel, 87 N.J. 53, 432 A.2d 834 (1981); Phillips v. United States, 508 F.Supp. 544 (D.S.C.1981) (Phillips II); Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979). Recovery is therefore sought for the expenses of caring for the disabled child, and for the pain and suffering of the parents. Comment, “Wrongful Life”: The Right Not To Be Bom, 54 Tul.L.Rev. 480, 484 (1980). In considering the case authorities, it is helpful to distinguish a second, related type of action, generally brought by parents of a normal, healthy, but unplanned child. E.g., Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977); Coleman v. Garrison, 349 A.2d 8 (Del.1975); Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971). Some courts and commentators have distinguished this category of cases by denominating them “wrongful conception” or “wrongful pregnancy” cases. Phillips II, supra; Recent Developments, Washington Recognizes Wrongful Birth and Wrongful Life — A Critical Analysis, 58 Wash.L.Rev. 649 (1983).

Recognition of a cause of action for wrongful birth is of relatively recent vintage. Public policy considerations (now discredited) which prevented its earlier recognition were discussed by the New Jersey Supreme Court in the landmark case of Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967), which denied liability. The first reason was based on the difficulty of measuring damages.

In order to determine [the parents’] compensatory damages a court would have to evaluate the denial to them of the intangible, unmeasurable, and complex human benefits of motherhood and fatherhood and weigh these against the alleged emotional and money injuries. Such a proposed weighing is similar to that which we have found impossible to perform ____ When the parents say their child should not have been born, they make it impossible for a court to measure their damages in being the mother and father of a defective child. 227 A.2d at 693.

The second reason given to justify denial of compensation was:

[e]ven [assuming] an abortion could [be] obtained without making its participants liable to criminal sanctions, substantial policy reasons prevent ... allowing tort damages for the denial of the opportunity to take an embryonic life. Id.

Changes in judicial attitude and the recognition of a woman’s constitutionally protected right to obtain an abortion (in the first trimester of pregnancy at least) have led to a wholesale rejection of these arguments.

Considering the difficulty of measuring damages, the New Jersey court, twelve years after its decision in Gleitman stated that “to deny [parents] redress for their injuries merely because damages cannot be measured with precise exactitude would constitute a perversion of the fundamental principles of justice.” Berman v. Allan, supra, 404 A.2d at 15 (allowing emotional damages).

Other courts have similarly found that the difficulty of measuring various damage elements is not an insurmountable obstacle. E.g., Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 656 P.2d 483 (1983); Phillips II, supra, at 549-550; Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807, 813-814 (1978); Jacobs v. Theimer, 519 S.W.2d 846, 850 (1975).

Regarding the argument founded on the perceived public policy against abortion, the United States Supreme Court ruling in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), established that public policy now supports, rather than militates against, the proposition that a woman not be impermissibly denied a meaningful opportunity to make the decision whether to have an abortion. Berman, supra, 404 A.2d at 14. Clearly, the arguments once found persuasive in denying wrongful birth actions have lost their potency. Furthermore, we note at least two policy considerations which have been advanced in favor of recognizing the cause of action.

The first is based upon the expanding ability of medical technology to predict and detect birth defects before conception or birth. Imposing liability on individual physicians vindicates the societal interest in reducing the incidence of genetic defects.¹

The other consideration flows from general tort principles. A physician whose negligence has deprived a woman of the opportunity to make an informed decision whether her fetus should be aborted should be required to compensate her for the damage he has proximately caused. “Any other ruling would in effect immunize from liability those in the medical field providing inadequate guidance to persons who would choose to exercise their constitutional right to abort fetuses which, if born, would suffer from genetic defects.” Berman, supra, 404 A.2d at 14.

That society has a vested interest in reducing and preventing birth defects, and in requiring that wrongdoers redress the natural and probable consequences of every substantial breach of the applicable duty of care has led to unanimous acceptance by the courts of wrongful birth as a claim for relief. It has ultimately been recognized by all of the thirteen jurisdictions that have considered it.² See e.g., Fassoulas v. Ramey, 450 So.2d 822 (S.Ct.Fla.1984); Harbeson v. Parke-Davis, supra (Washington); Turpin v. Sortini, 31 Cal.3d 220, 182 Cal.Rptr. 337, 643 P.2d 954 (1982); Robak v. United States, 658 F.2d 471 (7th Cir.1981) (construing Alabama law); Phillips II, supra, (construing South Carolina law); Speck v. Finegold, 497 Pa. 77, 439 A.2d 110 (1981); Troppi v. Scarf, supra, (Michigan); Berman v. Allan, supra, (New Jersey); Becker v. Schwartz, supra, (New York); Sherlock v. Stillwater Clinic, supra, (Minnesota); Bowman v. Davis, 48 Ohio St.2d 41, 2 Ohio Op.3d 133, 356 N.E.2d 496 (1976); Jacobs v. Theimer, supra, (Texas); Dumer v. St. Michael’s Hospital, 69 Wis.2d 766, 233 N.W.2d 372 (1975). We approve of this trend and hold that negligence resulting in the birth of a deformed or defective child is actionable.

Determination of the rights and duties of parties to a wrongful birth action involves analysis of the concepts fundamental to any negligence action: duty, breach, proximate cause and damages.³

The right of parents to decide whether to prevent the birth or conception of a child has been definitively established within the last decade. See, e.g., Roe v. Wade, supra; Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). Correlative to this right is the duty of the health care provider to not deprive the parents of the opportunity to make a decision that is meaningful and informed. See, e.g., Harbeson, supra, 98 Wash.2d at 49, 656 P.2d 483; Schroeder v. Perkel, supra, 87 N.J. at 63, 432 A.2d at 834 (1981); Speck v. Finegold, supra. For although

“[t]he availability of means to determine in many cases the risk that genetically defective children will be born adds a new dimension to parental decisions regarding childbearing, ... [prospective parents ... cannot be expected to obtain this knowledge on their own; the risk must be detected by medical experts and effectively communicated to the prospective parents.” Note, Father and Mother Know Best: Defining the Liability of Physicians for Inadequate Genetic Counseling, 87 Yale L.J. 1488, 1494 (1978).

Consequently, the negligent failure of a physician to perform a procedure, the results of which would have yielded information material to the parents’ decision whether to abort the fetus, constitutes a breach of that duty.

The injury in a wrongful birth claim is the birth of the child. This is the “inevitable consequence of recognizing the parents’ right to avoid the birth of a defective child.” Harbeson, supra, 656 P.2d at 492. With this in mind the element of proximate cause does not present an obstacle to the wrongful birth analysis, assuming that the parents allege and show that, but for the physician’s negligence, they would have terminated the pregnancy or avoided conception, and therefore no child would have been born.

The problematic area in the tort of wrongful birth is the issue of damages. “[T]he question of damages has presented a difficult and troublesome problem to the courts ... engendering widely divergent approaches____” Phillips II, supra, 508 F.Supp. at 551. Generally, courts allow the extraordinary expenses relating to the defect that must be borne by the parents, and some courts have compensated for the parents’ pain and suffering and mental anguish. Rogers, Wrongful Life and Wrongful Birth: Medical Malpractice in Genetic Counseling and Prenatal Testing, 33 S.C.L.Rev. supra, 713, 751. One court has allowed all expenses incident to the care of the child, without discounting for expenses of child rearing not due to the defect. Id.

We find guidance for determining allowable elements of damage in that Idaho law which deals with recovery by parents in the case of the injury or death of a child. Generally, damages may be given as are “just” under all the circumstances of the case. Idaho Code § 5-311. Specifically, damages have been allowed to compensate for the costs of medical and hospital care, Hayward v. Yost, 72 Idaho 415, 242 P.2d 971 (1952), and for emotional distress, Hatfield v. Max Rouse & Sons Northwest, 100 Idaho 840, 606 P.2d 944 (1980). Grief and anguish are not allowable elements of recovery. Volk v. Baldazo, 103 Idaho 570, 651 P.2d 11 (1982); Packard v. Joint School District No. 171, 104 Idaho 604, 661 P.2d 770 (App.1983). Although the recovery allowed in these cases is based on physical injury or death of the child, as opposed to the birth of the child being the injury, these cases reflect a policy of compensating parents for both pecuniary loss and emotional injury. We find that same policy persuasive in the context of a cause of action for wrongful birth. In determining damages for emotional injury, countervailing emotional benefits attributable to the birth of the child should also be considered and the award adjusted accordingly. Restatement (Second) of Torts § 920 (1977); Rogers, supra, 752.

In Phillips v. United States, 575 F.Supp. 1309 (D.S.C.1983) (Phillips IV),⁴ the court had under consideration a case where, as here, the birth defects were such as would render the child relatively helpless and dependent upon its parents for the duration of its life. In Phillips IV, the court, while rejecting a cause of action in the child for wrongful life, held that extraordinary expenses, medical, custodial and otherwise, necessitated by the child’s condition from birth to an estimated life expectancy of forty years, were recoverable in the parents’ cause of action for wrongful birth.⁵ In Lieberman v. Lieberman, 517 S.W.2d 478 (Mo.1974) the court, having under consideration a similar circumstance, stated:

The plaintiff, by his petition, asserts the parental obligation to provide support and seeks benefits as an adult child. Absent special circumstances, a parent is under no duty to support an adult child. 67 C.J.S. Parent and Child § 17, p. 704. This general rule found application in State ex rel. Kramer v. Carroll, supra, at 659 [9], as follows:

“Ordinarily, however, in the absence of constitutional or statutory provisions or contractual relations to the contrary, the obligation of the parent to support a child ceases when the child reaches his majority ... The law regards the normal child as capable of supporting himself at the age of twenty-one years.”

A recognized exception occurs where the adult child is unmarried, unemancipated and insolvent and physically or mentally incapacitated from supporting himself. Fower v. Fower Estate, 448 S.W.2d 585 (Mo.1970). The parental duty of support in such cases may continue past chronological majority when, because of physical or mental infirmity, the child is unable to provide for his support and undertake the responsibilities normally associated with his age. The duty on the parent to provide post-majority support arises not from the nature of the support or benefits sought, but from the condition of the child seeking the benefit. 517 S.W.2d at 480.

In Idaho, the duty of parents to maintain a child unable to maintain himself or herself is established by Idaho Code § 82-1002 which reads in part as follows:

32-1002. Reciprocal duties of support. — It is the duty of the father, the mother and the child or children of any poor person who is unable to maintain himself or herself by work, to maintain such poor person to the extent of his or her ability.

We likewise hold that the expenses for the support and maintenance of Dessie Blake beyond the age of majority are recoverable in the parents’ action for wrongful birth to the extent such expenses will be reasonably established through competent evidence at trial. Additionally, as in Phillips IV, the economic award will be placed in trust for the use and benefit of the child.

II WRONGFUL LIFE

Wrongful life as a tort is comprised of “those causes of action brought by the infant alleging that, due to the negligence of the defendant, birth occurred....” Curlender v. Bio Science Laboratories, 106 Cal.App.3d 811, 817, 165 Cal.Rptr. 477, 481 (1980) (emphasis in the original). With the exception of two jurisdictions, the courts have almost universally refused to recognize the tort, even in the most sympathetic of cases — those involving children born with birth defects. E.g., Speck v. Finegold, 497 Pa. 76, 439 A.2d 110 (1981); Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979); Elliot v. Brown, 361 So.2d 546 (Ala. 1978); Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978); Jacobs v. Theimer, 519 S.W.2d 846 (Tx.1975); Burner v. St. Michael’s Hospital, 69 Wis.2d 766, 233 N.W.2d 372 (1975); c.f. Curlender, supra; Harbeson v. Parke-Bavis, Inc., 99 Wash.2d 460, 656 P.2d 483 (1983) (recognizing the cause of action). This judicial reticence stems partially from the fact that the theory amounts to a repudiation of the value of human life. The contention of wrongful life plaintiffs is not that they should not have been born without defects, but rather, that they should not have been born at all. Gleitman, supra, 227 A.2d at 692. The essence of such claims is that the child’s very life is “wrongful”. Berman v. Allan, supra, 404 A.2d at 11.

We also decline to adopt the doctrine which would recognize such a cause of action. Basic to our culture is the precept that life is precious. As a society, therefore, our laws have as their driving force the purpose of protecting, preserving and improving the quality of human existence. To recognize wrongful life as a tort would do violence to that purpose and is completely contradictory to the belief that life is precious. The fact that Dessie Blake will live in a severely disabled condition is unquestionably a tragedy; nevertheless, we agree with the New Jersey Supreme Court in that “life — whether experienced with or without a major physical handicap — is more precious than non-life.” Berman, supra, at 404 A.2d at 12. Thus, because Dessie Blake has suffered no legally cognizable wrong by being born, she has no cause of action.

Even if we were to hold that wrongful life were a legally cognizable injury in Idaho, the impossibility of measuring damages would in any event preclude recognition of the cause of action.

As the court noted in Berman, supra: The primary purpose of tort law is that of compensating plaintiffs for the injuries they have suffered wrongfully at the hands of others. As such, damages are ordinarily computed by “comparing the condition plaintiff would have been in, had the defendants not been negligent, with plaintiffs impaired condition as a result of the negligence.” Id. [49 N.J.] at 28, 227 A.2d at 692; see generally, W. Prosser, supra, § 55 at 335-338; Note, “Wrongful Life and A Fundamental Right to be Born Healthy,” 27 Buffalo L.Rev. 537, 555-559 (1978). In the case of a claim predicated upon wrongful life, such a computation would require the trier of fact to measure the difference in value between life in an impaired condition and the “utter void of nonexistence.” Gleitman, supra, 49 N.J. at 28, 227 A.2d 689. Such an endeavor, however, is literally impossible. As Chief Justice Weintraub noted, man, “who knows nothing of death or nothingness,” simply cannot affix a price tag to non-life. Id. at 63 [227 A.2d 689] (Weintraub, C.J., concurring & dissenting).

Accordingly, we hold that the trial court did not err in entering summary judgment disallowing a cause of action for “wrongful life”.

III. STATUTE OF LIMITATIONS

The statute of limitations applicable to the parent’s cause of action is set forth in Idaho Code § 5-219(4) which governs, inter alia, medical malpractice. Under § 5-219(4) an action must be brought within two years of the “occurrence, act or omission complained of.” Respondent asserts that the Blakes are therefore barred, since the negligent medical treatment occurred in November of 1974, approximately two years and seven months before the complaint was filed on July 5, 1977. Such an interpretation is incorrect however.

As we have said, “[t]he gist of a malpractice action is negligence.” Umphrey v. Sprinkel, 83 I.S.C.R. 1497, 106 Idaho 700, 682 P.2d 1247 (1983); Trimming v. Howard, 52 Idaho 412, 416, 16 P.2d 661, 662 (1932). “It is axiomatic that in order to recover under a theory of negligence, the plaintiff must prove actual damage. As a general rule ‘the statute of limitations does not begin to run against a negligence action until some damage has occurred.’ ” Stephens v. Stearns, 106 Idaho 249, 254, 678 P.2d 41, 46 (1984). Since under the cause of action for wrongful birth, there is no defective child until and unless the birth occurs, logic dictates that the statute of limitations cannot begin to run until the date of birth, which was July 3, 1975. Although the complaint was not actually filed until July 5, 1977, it is not barred as July 3 was a Sunday and July 4 was a legal holiday. Accordingly, the Blakes’ case was timely instituted.

The judgment of the lower court is affirmed in part and reversed in part and the cause remanded for further proceedings. Each party to bear their respective costs and attorney fees.

DONALDSON, C.J., and SHEPARD, J., concurring. BISTLINE, J., concurring in Parts I and III and dissenting as to Part II. BAKES, J., concurring in part as to Part I, concurring in Part II, and dissenting in Part III.

1 . For a thorough discussion of this issue, see Note, Father and Mother Know Best: Defining the Liability of Physicians for Inadequate Genetic Counseling, 87 Yale LJ. 1488. (1978).

2 . Several courts have rejected claims based on the birth of normal healthy children, however no court has rejected claims involving children with birth defects.

3 . "The unanimity of the jurisdictions that have considered wrongful birth cases [involving birth defects] demonstrates that the claim satisfies the traditional requirements for a negligence action: duty, breach, proximate cause, and damages." Rogers, Wrongful Life and Wrongful Birth: Medical Malpractice in Genetic Counseling and Prenatal Testing 33 S.C.L.Rev. 713, 749 (1982).

4 . Phillips IV addresses the question of damages in a wrongful birth claim. Up to this point our discussion of the Phillips case has focused on the earlier Phillips II decision, 508 F.Supp. 544 (D.S.C.1981), wherein the court recognized the wrongful birth cause of action.

5 . The court in Phillips IV, supra, analyzed the permissible damage award as follows:

Dr. Wood established the present value of the economic costs subsequent to trial with several different scenarios, as reflected in Plaintiffs Exhibit 13 ... These calculations incorporated three different care proposals: home care with private sitter, institutional care at the Coastal Center (Ladson), and institutional care in a residential group home. After a careful and circumspect review of all the evidence, this court finds that Randy's condition will necessitate that he remain at home and receive attendant care there until he reaches age 18.42, this being fourteen years from the date of trial. The present economic value of this element of damages is Four Hundred Fifty Thousand, Two Hundred Two and no/100 ($450,202.00) Dollars. This element must be reduced by the cost of raising a "normal” child until the same age. This cost is calculated to be Sixty-Two Thousand, Five Hundred and no/100 ($62,500.00) Dollars. Thus, the net allowable economic loss from birth to age 18.42 is Five Hundred Twelve Thousand, Three Hundred Seventy-One and no/100 ($512,371.00) Dollars.

Having found that Randy Phillips will need attendant care at home until age 18.42 years and that he has a prospective life expectancy of forty years, this court finds that his condition will necessitate his transfer to a residential group home, where he will remain from age 18.42 years to age forty years. Dr. Wood calculated the present value of this element of damages to be Seven Hundred Seventy-One Thousand, Three Hundred Ninety-Four and no/100 ($771,394.00) Dollars. Thus, the total economic damages from Randy’s birth to his life expectancy of forty years is One Million, Two Hundred Eighty-Three Thousand, Seven Hundred Sixty-Five and no/100 ($1,283,765.00) Dollars. Phillips IV, at 1317.