Flowers v. District of Columbia

478 A.2d 1073, 1984 D.C. App. LEXIS 446

• Court: District of Columbia Court of Appeals
• Decided: July 12, 1984
• Docket: 82-133
• Status: Published

Opinions

KERN, Associate Judge, Retired:

This appeal comes to the court upon an Agreed Statement in lieu of the Record on Appeal pursuant to DCCA Rule 10(k). According to the agreed statement of facts, after the birth of appellant’s third child, appellant and the father of two of her children determined that they could not afford additional children. Therefore, on May 9, 1978, appellant underwent a laparo-scopic cauterization to prevent her from becoming pregnant in the future. This surgery was performed by Dr. Marsha Berkeley, assisted by Dr. Richard Peters, both of whom were agents of the District.

In October 1980, appellant filed suit against the District of Columbia under the principle of respondeat superior, alleging that the tubal cauterization had been negligently performed and as a proximate result she had become pregnant and given birth to a healthy baby on June 30, 1980.

Appellant sought in the trial court compensation from the District of Columbia for: her medical expenses, her pain and suffering, and her lost wages, all incurred during her pregnancy;

—the wages she lost after the birth of her child until she could return to work;

—the cost of a properly performed tubal ligation she might undergo in the future; and,

—all costs of rearing her healthy baby until the child reached the age of 18.

The trial court ruled that appellant may not pursue her claim that the District, as a result of its doctors’ negligence, must pay the costs of rearing her child. Otherwise, the court permitted appellant’s other claims for relief to be presented to the jury and the jury returned a verdict in appellant’s favor in the amount of $11,000.

Appellant only challenges the trial court’s ruling in limine that her claim for child-rearing costs from the doctors might not be pursued. Appellant contends on appeal (Brief at 4), that

when she negligently failed to perform an effective tubal cauterization, Dr. Marsha Berkeley breached her duty to plaintiff Flowers [appellant]. Dr. Berkeley’s culpable conduct foreseeably resulted in the birth ... and meant that plaintiff would be required to bear the costs of maintaining, supporting, and educating a fourth child whom she had decided she could not afford_ Judge Doyle’s decision unjustifiably departed from a fundamental principal of District of Columbia law: it is the function of a jury to decide whether to compensate a plaintiff for injuries that result from a tortfeasor’s negligence.

Appellant further urges (Brief at 4-5):

[T]riers-of-fact have awarded damages for a wide range of injuries caused by a tortfeasor’s negligence.

* * * * * *

[C]ases involving negligent sterilizations should not be treated differently: a jury should be permitted to award damages for all injuries, including the net costs of raising an unplanned child.

In addition to urging this court to treat this case as a typical negligence ease to which established tort law should be applied, appellant also suggests (Brief at 6) a public policy reason for permitting a jury to award the cost of rearing a healthy child after a surgical sterilization has failed by reason of alleged negligence:

Where a physician’s negligence results in the birth of an unplanned child, a substantial interference with the fundamental rights of a parent to control family size results, with potentially catastrophic financial consequences. The policy of preserving the right of parental control of family size would be furthered by subjecting physicians to full civil liability for the cost of raising the unplanned child.

The public policy consideration appellant urges upon us as a rationale for imposing upon the District the costs of rearing appellant’s unplanned child impels us to note the comment by Judge Oberdorfer of the federal district court here in ruling upon a similar claim for damages:

[T]here is something inherently distasteful about a holding that a child is not worth what it costs to raise it, and something seemingly unjust about imposing the entire cost of raising the child on the physician, creating in the words of one court “a new category of surrogate parent.” [Hartke v. McKelway, 526 F.Supp. 97, 104 (D.D.C.1981), rev’d in part and affd in part on other grounds, Hartke v. McKelway, 707 F.2d 1544 (D.C.Cir.), cert. denied, — U.S. -, 104 S.Ct. 425, 78 L.Ed.2d 360 (1983)].

It is true that the able District Court judge went on to acknowledge that, when the parents of an unplanned child had chosen not to have more children because of the financial cost of rearing such a child, “it seems wrong” for a court to hold as a matter of law that the child “is worth the costs of raising her.” ¹ Nevertheless, the District Court’s comment points up, contrary to appellant’s urging, that the “public policy” considerations are not weighted in favor of imposing the child-rearing costs upon the physicians rather than the parents. Indeed, the weight of authority seems to disfavor the public policy appellant urges this court to adopt.²

We turn now to appellant’s contention that in effect this case is nothing more than a typical medical malpractice case, requiring merely the application of standard principles of tort law.³ If we were to accept appellant’s urging then the trial court would have been required to apply in the instant case both the well established “benefit rule” and the “avoidable consequences” doctrine.

The benefit rule states:

When the defendant’s tortious conduct has caused harm to the plaintiff ... and in so doing has conferred a special benefit to the interest of the plaintiff that was harmed, the value of the benefit conferred is considered in mitigation of damages, to the extent that this is equitable. [Restatement (Second) of Torts, § 920 (1979 (emphasis added).]

The application of this settled rule to the instant case would necessarily put at issue before the jury the dollar value to appellant of her child and require testimony and evidence on both economic and other advantages and disadvantages of having her in being. Thus, a parent seeking to recover for an unplanned child will be strongly tempted to denigrate the child’s value to the extent possible in order to obtain as large a recovery as possible. The Illinois Supreme Court recently commented concerning the adverse consequences of applying the benefit rule to a wrongful birth case:

It can be seen that permitting recovery then requires that the parents demonstrate not only that they did not want the child but that the child ... remains an uncherished, unwanted burden so as to minimize the offset to which the defendant is entitled. [Cockrum v. Baumgartner, 95 Ill.2d 193, 202, 69 Ill.Dec. 168, 173, 447 N.E.2d 385, 390 (1983) (emphasis added).]

We are unpersuaded by the argument that the benefit rule would have the jury consider only the economic benefits accruing to the plaintiff as offsetting the cost of rearing the unwanted child. We are dealing here with children, not widgets; it is unrealistic to assume that the trier-of-fact could parse the dollars and cents benefits to parents from accruing a healthy child and the benefits less easily described but more deeply felt by the parents as a result of the birth of a healthy child.

According to Dean Prosser, in an action for the wrongful death of a minor, “any realistic view of the prospects must mean that the cost of rearing the child will far exceed any conceivable pecuniary benefits that might ever be optimistically expected of him; and damages honestly calculated on this basis could never be anything but a minus quantity. Nevertheless, in such cases substantial verdicts have been sustained where it is very evident that the jury have taken the bull by the horns, and in reality have compensated for the prohibited sentiment aspects of the family relation, with the court benevolently winking....” Prosser, Handbook of the Law of Torts, § 127 (4th ed. 1971). It is inescapable that as a practical matter juries will consider the emotional benefits and the other intangible advantages to the parents from having a child, as well as the child’s monetary value to the parents.

The Supreme Court of New Jersey expressed considerable concern that were it to permit an award to the parents of the costs of rearing their child then the parents would retain “all the benefits inhering in the birth of the child ... while saddling defendants [the physicians] with the enormous expenses attending upon her rearing”; and, the court concluded that such an award “would be wholly disproportionate to the culpability involved.” Berman v. Allan, 80 N.J. 421, 404 A.2d 8, 14 (1979).

The New York appellate court in Sorkin v. Lee, 78 A.D.2d 180, 184, 434 N.Y.S.2d 300, 303 (1980), opined that “to hold the physician responsible for the cost of future care of a healthy normal child based upon the parent’s private decision on how to accept the unplanned pregnancy is to inflict a penalty on defendant [physician] that is out of proportion to his wrong.”

In addition, were we to accept appellant’s invitation to treat this case as we would a garden-variety medical malpractice case public policy considerations of extraordinary complexity would be raised when the trial court proceeded to apply, as it must, the rule of “avoidable consequences” to a wrongful birth case. The avoidable consequences doctrine is that “one injured by the tort of another is not entitled to recover damages for any harm that he could have avoided by the use of reasonable effort — ” See Restatement (Second) of Torts § 918 (1979). Applying such a standard rule to the wrongful birth case would mean that a plaintiff could recover for damages only if he could demonstrate to the court and jury that he could not have reasonably avoided the consequences of the physicians’ negligence; viz., the birth of a healthy child. One obvious way of avoiding the consequences of a negligently performed surgical sterilization is to avoid the resultant parenthood by abortion; and another method is to place the child for adoption by others.⁴ Thus, application of the avoidable consequences doctrine — the rule of law established in negligence cases — implicates controversial and emotionally charged issues and illustrates the unique concerns this case raises, i.e., should the doctor be required to pay for the cost of rearing a healthy but unwanted child.

Application of both the benefit rule and the avoidable consequences doctrine to a negligence action of this sort illustrates not only that there are grave moral issues in the litigation of a wrongful birth action seeking recovery from the physician for the cost of rearing the child to majority, but also necessarily probe into a parent’s beliefs about abortion, adoption and the value of a child’s companionship — all highly personal matters that seem particularly unsuited for the traditional adversarial process of a negligence action in a court of law.

We note that the District of Columbia Council has announced a public policy which emphasizes the importance of a stable home environment and a secure family relationship for children. See D.C.Code § 16-4501 (1983 Supp.). Permitting parents to initiate litigation to force a third person to rear financially their child has a potentially destabilizing effect on families in the District, thereby implicating the Council’s policy.⁵ Our view is that to rule that a plaintiff may recover the cost of rearing her healthy but unplanned child is a matter best left to measured legislative action rather than to judicial fiat. Accordingly, the trial court’s judgment must be and is

Affirmed.

1 . The court concluded in that particular case that "to allow her [the plaintiff] to recover the costs of raising this child would be to give her a windfall,” relying upon the facts (1) that the plaintiff "greatly cherished” her child, and "chose not to have an abortion,” and (2) that plaintiff had not been motivated by economic reasons when choosing sterilization. Id. at 104-OS.

2 . Thus, the trial court’s ruling that the cost of rearing an unplanned child is not recoverable is in accord with recent decisions by the highest courts in Alabama, Arkansas, Delaware, Florida, Illinois, Iowa, Kentucky, New Hampshire, Pennsylvania, Wisconsin and Wyoming. See Boone v. Mullendore, 416 So.2d 718 (Ala.1982); Wilbur v. Kerr, 275 Ark. 239, 628 S.W.2d 568 (1982); Coleman v. Garrison, 349 A.2d 8 (Del.1975); Fassoulas v. Ramey, 450 So.2d 822 (Fla.1984); Cockrum v. Baumgartner, 95 Ill.2d 193, 69 Ill.Dec. 168, 447 N.E.2d 385 (1983), cert. denied, — U.S. -, 104 S.Ct. 149, 78 L.Ed.2d 139 (1984); Schork v. Huber, 648 S.W.2d 861 (Ky.1983); Nanke v. Napier, 346 N.W.2d 520 (Iowa 1984); Kingsbury v. Smith, 122 N.H. 237, 442 A.2d 1003 (1982); Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 453 A.2d 974 (1982); Rieck v. Medical Protective Co., 64 Wis.2d 514, 219 N.W.2d 242 (1974); Beardsley v. Wierdsma, 650 P.2d 288 (Wyo.1982). See also Terrell v. Garcia, 496 S.W.2d 124 (Tex.Civ.App.1973), cert. denied, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974); P. v. Portadin, 179 N.J.Super. 465, 432 A.2d 556 (1981); Sorkin v. Lee, 78 A.D.2d 180, 434 N.Y.S.2d 300 (1980). See generally, Annot., 83 A.L.R.3d 15 (1978); Annot., 27 A.L. R.3d 906 (1969).

3 . We are not here concerned with the foreseeability of the possible birth of a child with defects and we do not consider the measure of damages in such a case. See Fassoulas v. Ramez, supra, 450 So.2d 822 (Fla. 1984) (no policy argument against parents being recompensed for the cost of extraordinary care in rearing a deformed child to majority).

4 . We do not conclude that a court or jury would necessarily find abortion or adoption to be a reasonable method of avoiding the consequences of having to raise an unwanted child. We merely point out that a court or jury would necessarily be called upon to consider this alternative as an exercise of choice by the parent before having the child.

5 . The Supreme Court of Arkansas, in Wilbur v. Kerr, 275 Ark. 239, 628 S.W.2d 568, 571 (1982), observed:

It is a question which meddles with the concept of life and the stability of the family unit. Litigation cannot answer every question; every question cannot be answered in terms of dollars and cents. We are also convinced that the damage to the child will be significant; that being an unwanted or "emotional bastard,” who will some day learn that its parents did not want it, and in fact, went to court to force someone else to pay for its raising, will be harmful to that child. It will undermine society’s need for a strong and healthy family relationship....