Azzolino v. Dingfelder

337 S.E.2d 528, 315 N.C. 103, 1985 N.C. LEXIS 2169
Supreme Court of North Carolina·Decided December 10, 1985·No. 718PA84·Published·Cited by 97 cases

Opinions

MITCHELL, Justice.

This appeal arises from a medical malpractice action brought by a child and his parents and siblings alleging that the defendants’ negligent failure to advise the parents properly of the availability of amniocentesis and genetic counseling and negligent prenatal care of the mother prevented the termination of the mother’s pregnancy by abortion and thereby resulted in the child’s birth. The child is afflicted with Down’s Syndrome, a genetic disorder characterized by mental retardation and physical abnormalities. We conclude that neither the parents’ claim for relief for “wrongful birth,” the child’s claim for “wrongful life” nor the siblings’ claim presents a claim upon which relief can be granted.

The plaintiffs brought this action seeking to recover for injuries allegedly arising from the birth of the plaintiff Michael L. Azzolino, the son of the plaintiffs Louis and Jane Azzolino and the half-brother of the plaintiffs Regina Gallagher and David Azzolino. The defendants named in the complaint are Orange-Chatham Comprehensive Health Services, Inc. (hereinafter “OCCHS”), Dr. [105] James R. Dingfelder, a specialist in obstetrics and gynecology who at all pertinent times was a professor in the University of North Carolina School of Medicine, and Jean Dowdy, a registered nurse and family nurse practitioner employed by OCCHS at the Haywood-Moncure Clinic (hereinafter “Clinic”) operated by OCCHS in Chatham County.

The plaintiffs allege that Mrs. Azzolino received prenatal care at the Clinic during her pregnancy. While at the Clinic, she was under the care of the defendants Jean Dowdy and Dr. Dingfelder. As a result of a contract between the University of North Carolina and OCCHS, Dr. Dingfelder spent one-half day per week at the Clinic supervising the work of the family nurse practitioners and providing gynecological and obstetrical services to patients.

By the first claim for relief, the plaintiffs seek damages on behalf of the parents for the “wrongful birth” of Michael. The plaintiffs allege that the defendants were negligent in their prenatal care of Mrs. Azzolino in that they failed to advise the parents properly and incorrectly advised them with respect to the availability of amniocentesis and genetic counseling. Had the parents been properly advised, they allege that they would have had amniocentesis performed which would have shown that Mrs. Azzolino’s pregnancy would result in a child with Down’s Syndrome if allowed to go to term. Had she known that Michael would be afflicted with Down’s Syndrome, the plaintiffs allege that Mrs. Azzolino would have terminated her pregnancy by an abortion.

By the second claim for relief, Michael Azzolino, through his parents as guardians, seeks to recover damages resulting from his “wrongful life.” The plaintiffs allege that Michael has suffered compensable damages by virtue of his very existence afflicted with Down’s Syndrome. The plaintiffs further allege that but for the defendants’ negligence, Michael would not have suffered such damages because he would have been aborted while still a fetus.

In the third claim for relief, Michael’s older siblings, Regina and David, allege that their brother’s birth and life has forced them to endure family financial and emotional hardships associated with having a child with Down’s Syndrome in the family and also has deprived them of the full measure of the society, [106] comfort, care and protection of their parents. They allege that their injuries in this regard were proximately caused by the defendants’ negligence.

The plaintiffs allege that Dr. Dingfelder is liable for the negligence of the defendant Jean Dowdy under the doctrine of respondeat superior. They further allege that the defendant OCCHS is liable for the negligence of the other defendants by reason of the same doctrine.

By orders dated December 14, 1982 and filed on December 28, 1982, Judge Giles R. Clark granted motions of the defendants under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure to dismiss the claim for relief for wrongful life brought on behalf of Michael and the claim for relief on behalf of Michael’s siblings. The case came on for trial of the claim for relief on behalf of the parents for wrongful birth. At the close of the plaintiffs’ evidence at trial, Judge Henry V. Barnette, Jr. allowed the defendants’ motions under Rule 50 of the North Carolina Rules of Civil Procedure for directed verdicts in their favor on the wrongful birth claim. On May 24, 1983 Judge Barnette entered judgment finally terminating the action. The plaintiffs appealed to the Court of Appeals.

The Court of Appeals affirmed the trial court’s dismissal of the claim for relief on behalf of Regina Mary Gallagher and David John Azzolino, the minor siblings of Michael Azzolino. It also affirmed the trial court’s directed verdict in favor of the defendant Jean Dowdy on the plaintiff parents’ claim against her for wrongful birth. The Court of Appeals reversed the directed verdicts against the parents on their wrongful birth claim against the defendants Dr. James Dingfelder and OCCHS and also reversed the trial court’s dismissal of Michael Azzolino’s claim for wrongful life.

The Court of Appeals also addressed the measure of damages to be applied should Michael and his parents prevail at trial. The Court of Appeals concluded that Michael’s wrongful life claim would not justify general damages for being born impaired “because of the impossibility of assessing such damages in any fair, nonspeculative manner.” 71 N.C. App. at 300, 322 S.E. 2d at 576. It allowed recovery of special damages for the extraordinary expenses to be incurred during Michael’s lifetime as a result of [107] his impairment. The Court of Appeals held that these damages were recoverable by the child with his parents being entitled to disbursements from the child’s recovery for reasonable expenses for special care subject to the approval of the clerk of superior court. The Court of Appeals further concluded that it was appropriate to allow the parents to recover damages only for their mental anguish resulting from the existence of the impaired child, since they would be indirectly compensated for the child’s extraordinary expenses from the damages he would recover under his wrongful life claim.

On February 28, 1985, we allowed the defendants’ petition for discretionary review and the plaintiffs’ cross-petition for discretionary review of additional issues. As we conclude that neither wrongful birth nor wrongful life claims are cognizable under the law of this jurisdiction, we affirm in part and reverse in part the decision of the Court of Appeals.

Free access — add to your briefcase to read the full text and ask questions with AI

Azzolino v. Dingfelder, 337 S.E.2d 528, 315 N.C. 103, 1985 N.C. LEXIS 2169 (N.C. 1985).

337 S.E.2d 528 (Azzolino v. Dingfelder) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Wendy Norman v. Xytex Corporation
830 S.E.2d 267 (Court of Appeals of Georgia, 2019)
Hardin v. Obstetrical & Gynecological Associates P.A.
527 S.W.3d 424 (Court of Appeals of Texas, 2017)
Willis Ex Rel. Willis v. Wu
607 S.E.2d 63 (Supreme Court of South Carolina, 2004)
Eastway Wrecker Service, Inc. v. City of Charlotte
599 S.E.2d 410 (Court of Appeals of North Carolina, 2004)
Travelers Indemnity Co. v. Miller Building Corp.
97 F. App'x 431 (Fourth Circuit, 2004)
Grubbs Ex Rel. Grubbs v. Barbourville Family Health Center, P.S.C.
120 S.W.3d 682 (Kentucky Supreme Court, 2003)
Kassama v. Magat
767 A.2d 348 (Court of Special Appeals of Maryland, 2001)
Hester v. Dwivedi
2000 Ohio 230 (Ohio Supreme Court, 2000)
Bader v. Johnson
732 N.E.2d 1212 (Indiana Supreme Court, 2000)
McAllister v. Ha
496 S.E.2d 577 (Supreme Court of North Carolina, 1998)
Bader v. Johnson
675 N.E.2d 1119 (Indiana Court of Appeals, 1997)
Liddington v. Burns
916 F. Supp. 1127 (W.D. Oklahoma, 1996)
Greco v. United States
893 P.2d 345 (Nevada Supreme Court, 1995)
Reed v. Campagnolo
630 A.2d 1145 (Court of Appeals of Maryland, 1993)
Flanagan v. Williams
623 N.E.2d 185 (Ohio Court of Appeals, 1993)
Cauman v. George Washington University
630 A.2d 1104 (District of Columbia Court of Appeals, 1993)