Etkind v. Suarez

519 S.E.2d 210, 271 Ga. 352
CourtSupreme Court of Georgia
DecidedJuly 6, 1999
DocketS98G1978
StatusPublished
Cited by72 cases

This text of 519 S.E.2d 210 (Etkind v. Suarez) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Etkind v. Suarez, 519 S.E.2d 210, 271 Ga. 352 (Ga. 1999).

Opinions

Carley, Justice.

Throughout her pregnancy, Dr. Jennifer Etkind was a patient of Dr. Ramon Suarez. After giving birth to a child with Down’s Syndrome, she and her husband filed suit against Dr. Suarez and his partnership, asserting a “wrongful birth” claim. Such a claim “is brought by the parents of an impaired child and alleges basically that, but for the treatment or advice provided by the defendant, the parents would have aborted the fetus, thereby preventing the birth of the child.” Atlanta Obstetrics & Gynecology Group v. Abelson, 260 Ga. 711, 713 (398 SE2d 557) (1990), rev’g 195 Ga. App. 274 (392 SE2d 916) (1990). The trial court granted the defendants’ motion for judgment on the pleadings. The Court of Appeals affirmed, concluding that Atlanta Obstetrics & Gynecology Group v. Abelson, supra, remains controlling precedent for the proposition that, unless and until it is authorized by the General Assembly, a cause of action for wrongful birth will not be recognized in Georgia. Etkind v. Suarez, 234 Ga. App. 108 (505 SE2d 831) (1998). We granted certiorari to review this holding of the Court of Appeals. In accordance with the fundamental principles of separation of powers and stare decisis, we are compelled to adhere to Abelson and, therefore, to affirm the Court of Appeals.

1. Although a plurality of the Court of Appeals recognized the viability of a wrongful birth claim in Abelson, this Court granted certiorari and held “that ‘wrongful birth’ actions shall not be recognized in Georgia absent a clear mandate for such recognition by the legislature.” Abelson, supra at 714. Thus, Abelson established that the then-existing medical malpractice statute did not authorize a wrongful [353]*353birth cause of action, and that additional legislation was necessary because

this is an area more properly suited to legislative action as the legislature offers a forum wherein all of the issues, policy considerations and long range consequences involved in recognition of the novel concept of a “wrongful birth” cause of action can be thoroughly and openly debated and ultimately decided.

Abelson, supra at 718-719. Because the General Assembly has not enacted any legislation authorizing a recovery for the wrongful birth of a child, Dr. Etkind and her husband have no viable claim unless Abelson can be distinguished or is overruled.

Initially, the Etkinds contend that Abelson is factually distinguishable due to the medical advancements in the area of prenatal care which have occurred since that case was decided. However, Abelson, supra at 718, anticipated these developments and indicated that “with the continued advances in medical science which are occurring daily, the problems presented by the concept of ‘wrongful birth’ actions can only become increasingly more numerous and more complex.” Abelson, supra at 718. Thus, the rapid pace at which medicine has indeed moved in the interim validates, rather than distinguishes, Abelson’s ultimate conclusion that a cause of action for wrongful birth can be created only through the legislative process.

More importantly, the doctrine of separation of powers is an immutable constitutional principle which must be strictly enforced. McCutcheon v. Smith, 199 Ga. 685, 691 (2) (35 SE2d 144) (1945). Under that doctrine, statutory “ ‘ “construction belongs to the courts, legislation to the legislature. We can not add a line to the law, nor can the legislature enlarge or diminish a law by construction.”’ [Cits.]” Modern Homes Constr. Co. v. Burke, 219 Ga. 710, 715 (135 SE2d 383) (1964). According to Abelson, the judiciary cannot recognize a cause of action for wrongful birth, and the authority of the courts extends only to construction of the provisions of whatever statute the General Assembly may choose to enact in that regard. Despite ensuing medical advancements, no legislation amending the malpractice statute so as to permit a recovery for wrongful birth has been enacted. If, under the constitutional mandate of separation of powers, authorization of a wrongful birth claim was exclusively a legislative function when Abelson was decided, it does not now become a judicial function simply because the parameters of the medical knowledge relevant to assessing the defendant’s liability for such a claim may have changed. To the contrary, the lack of a legislative response indicates that the General Assembly has not been per[354]*354suaded by any reason, including subsequent medical advances, to exercise its constitutional power to amend the malpractice act so as to permit a recovery for wrongful birth claims. See Abernathy v. City of Albany, 269 Ga. 88, 90 (495 SE2d 13) (1998). Thus, Abelson cannot be distinguished factually as controlling authority for the invalidity of the Etkinds’ claim.

2. In the alternative, Dr. and Mr. Etkind assert that Abelson is distinguishable on legal grounds, because it conflicts with the subsequent decision in Planned Parenthood of Southeastern Penn. v. Casey, 505 U. S. 833 (112 SC 2791, 120 LE2d 674) (1992). In Casey, supra at 846 (I), the Supreme Court of the United States reaffirmed “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State.” Here, however, the Etkinds do not contend that the State of Georgia itself unduly interfered with Dr. Etkind’s original abortion choice. Instead, the Etkinds challenge this Court’s construction of the tort law of Georgia in Abelson as barring their subsequent recovery of damages from Dr. Suarez based upon his alleged interference with that choice.

Nothing in Casey holds that the Federal Constitution compels the states to recognize a woman’s right to bring a civil suit against her obstetrician for the negligent failure to assist her in making an informed abortion decision. The narrow holding in Abelson is that, absent legislation, parents in Georgia cannot recover damages for the wrongful birth of their child. This holding does not violate the constitutional rights of the parents of an impaired child, because the refusal to recognize a wrongful birth claim absent authorizing legislation does not constitute undue interference by Georgia in the exercise of the right to elect to have an abortion.

Georgia has not commanded doctors to interfere with a woman’s constitutional rights. Georgia’s reluctance to interject itself into the private relations of its citizens cannot be construed as affirming or encouraging private conduct for purposes of the Fourteenth Amendment. To find state action whenever a state has not acted would broaden state action to encompass practically all private conduct.

Campbell v. United States, 962 F2d 1579, 1583 (11th Cir. 1992). Abelson did not leave parents of impaired children with no possibility of obtaining a civil remedy, but held only that a cause of action for wrongful birth must be created by the legislative, rather than the judicial, branch of this state’s government. Although Georgia itself cannot unduly interfere with a woman’s constitutional right to obtain an abortion, this Court retains the exclusive power to determine whether parents of a child have a viable claim against an obstetri[355]*355cian under the tort law of this state.

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519 S.E.2d 210, 271 Ga. 352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/etkind-v-suarez-ga-1999.