Girdley v. Coats

825 S.W.2d 295, 1992 Mo. LEXIS 15, 1992 WL 32766

• Court: Supreme Court of Missouri
• Decided: February 25, 1992
• Docket: 74029
• Status: Published

Opinions

BENTON, Judge.

Plaintiffs, Karen and Jeffrey Girdley, filed a four-count petition against Stephen H. Coats, D.O., and Stephen H. Coats, D.O., Inc., for a negligently performed bilateral tubal ligation. Count III of the Girdleys’ petition sought “the reasonable cost of raising and educating the child” because of the negligence of Dr. Coats. Count IV sought the same expenses based on a breach of contract theory. The trial court dismissed Counts III and IV and pursuant to Rule 74.01(b) determined that the order was final for purposes of appeal.

On appeal, the Court of Appeals, Southern District, reversed and remanded the decision of the trial judge with directions to deny the motion to dismiss Counts III and IV. Transfer was granted by this Court. The judgment of the trial judge dismissing Counts III and IV is affirmed.

In reviewing the dismissal, an appellate court assumes all pleaded facts to be true and makes every favorable inference in favor of plaintiffs that may reasonably be drawn from those facts; if any ground is shown that would entitle the plaintiff to relief, the dismissal is improper. Shelton v. St. Anthony’s Medical Center, 781 S.W.2d 48, 49 (Mo. banc 1989).

Plaintiffs allege they were unable to afford the expense of any more children. Mrs. Girdley thus consulted with Dr. Coats who recommended bilateral tubal ligation. On March 24, 1988, she underwent surgery and was informed by Dr. Coats that he had ligated the right fallopian tube but that her left ovary and corresponding fallopian tube were congenitally absent. After the sterilization procedure, Dr. Coats advised that she was sterile with no risk of conception. On April 29, 1989, Mrs. Girdley delivered the couple’s third child.¹

I. Cause of Action

Various causes of action arise involving the birth of a child. Although some confusion exists, a consensus has developed labeling the various actions: (1) “wrongful conception” or “wrongful pregnancy” — a medical malpractice action brought by the parents of a child born after a physician negligently performed a sterilization procedure; (2) “wrongful birth” — a claim brought by parents of a child born with defects; and (3) “wrongful life” — a claim brought by the child suffering from such defects. Wilson v. Kuenzi, 751 S.W.2d 741, 743 (Mo. banc 1988), cert. denied, 488 U.S. 893, 109 S.Ct. 229, 102 L.Ed.2d 219 (1989), declines to recognize causes of action for wrongful birth and wrongful life in this state.

In Missouri, the cause of action for the tort of wrongful conception was specifically recognized in Miller v. Duhart, 637 S.W.2d 183 (Mo.App.1982), which noted that such an action has strong support in the law and is “merely a descriptive label for a form of malpractice”. Id. at 188. Traditionally, Missouri does not analyze malpractice in terms of contract law. See Barnhoff v. Aldridge, 38 S.W.2d 1029 (Mo. 1931); Spruill v. Barnes Hospital, 750 S.W.2d 732 (Mo.App.1988); Sanders v. H. Nouri, M.D., Inc., 688 S.W.2d 24 (Mo.App.1985).

Clearly, there is a legally cognizable cause of action. However, the parties are sharply divided as to the appropriate measure of damages. The issue may be framed: If a negligently performed sterilization procedure results in the birth of a healthy child, may the plaintiff recover the expenses of raising and educating that child?

II. Theories of Recovery

Numerous courts have wrestled with this issue, advancing several theories of recovery, along with a plethora of supporting reasons.

A review of the cases establishes that there are four possibilities: (1) no recovery rule; (2) full recovery rule; (3) limited damages rule; and (4) benefits rule. An overwhelming majority of jurisdictions has adopted the limited damages rule whereby recovery of the expenses of raising and educating a child is denied as an element of damages².

Contrary to this majority position, appellants urge that Missouri adopt the full recovery rule claiming that such a rule would protect a constitutional right not to procreate and would allegedly promote sound social policies. Further, appellants assert that the full recovery rule is more in keeping with traditional tort principles. Appellants’ position enjoys support in, at most, only three jurisdictions. Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal Rptr. 463 (1967); Marciniak v. Lundborg, 153 Wis.2d 59, 450 N.W.2d 243 (1990); Lovelace Medical Center v. Mendez, 111 N.M. 336, 805 P.2d 603 (1991) (emphasizing that wrongful conception invaded the family’s financial security).

Several courts have persuasively articulated the various rationales supporting the limited damages rule — most being variations on themes of public policy. The Kansas Supreme Court concluded that a parent cannot be damaged by the birth of a healthy child:

As a matter of public policy, the birth of a normal and healthy child does not constitute a legal harm for which damages are recoverable. We recognize wrongful death actions because of the great value we place on human life.... The birth of a normal, healthy child may be one of the consequences of a negligently performed sterilization, but we hold that it is not a legal wrong for which damages should or may be awarded. Byrd v. Wesley Medical Center, 699 P.2d at 468.

The Arkansas Supreme Court reasoned:

We are persuaded for several reasons to follow those courts which have declined to grant damages for the expense of raising a child. 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. We have not become so sophisticated a society to dismiss that emotional trauma as nonsense. Wilbur v. Kerr, 628 S.W.2d at 571.

The Illinois Supreme Court analyzed the issue:

One can, of course, in mechanical logic reach a different conclusion, but only on the ground that human life and the state of parenthood are compensable losses. In a proper hierarchy of values the benefit of life should not be outweighed by the expense of supporting it. Respect for life and the rights proceeding from it are at the heart of our legal system and, broader still, our civilization. Cockrum v. Baumgartner, 69 Ill.Dec. at 172, 447 N.E.2d at 389.

Though arguing that the full recovery rule is a natural extension of general principles of tort law, appellants necessarily ignore some of those general principles. The issue of mitigation of damages demonstrates the fallacy of applying strict tort principles in cases where the alleged injury is the birth of a normal, healthy child. It is generally recognized that one injured by the tort of another is required to mitigate damages. Phegley v. Graham, 358 Mo. 551, 215 S.W.2d 499, 505 (1948). In the case of a pregnancy caused by a negligent sterilization procedure, either adoption or abortion would clearly mitigate the expense of raising the child. These options illustrate the difficulty in applying strict tort principles to damages from wrongful conception.

Yet courts recognizing this cause of action have rejected the argument that parents should choose among the various methods of mitigation — adoption, abortion, etc. — seeing the moral issues begin to make inroads into an already emotional and speculative process of determining damages. Boone v. Mullendore, 416 So.2d at 723.

Speculative results are not a proper element of damages. Wise v. Sands, 739 S.W.2d 731, 734 (Mo.App.1987). The costs of child rearing — and especially education — are necessarily speculative. Who can divine, soon after birth, whether the child will be a financial boon or burden to the parents, what level of education will be required or what unique expenses could arise? These determinations are beyond the scope of probative proof. Likewise, an attempt to quantify the expense of raising a child and offsetting that expense by the “benefits” conferred on the family is neither workable nor desirable.³

Perhaps the costs of rearing and educating the child could be determined through use of actuarial tables or similar economic information. But whether these costs are outweighed by the emotional benefits which will be conferred by that child cannot be calculated. The child may turn out to be loving, obedient and attentive, or hostile, unruly and callous. The child may grow up to be President of the United States, or to be an infamous criminal. In short, it is impossible to tell, at an early stage in the child’s life, whether its parents have sustained a net loss or net gain. McKeman v. Aasheim, 687 P.2d at 855.

Judge Turnage’s eloquent dissent proposes the “benefits rule,” offsetting the “pecuniary and non-pecuniary” benefits to parents from having the child against the costs of rearing a child. However, Restatement (Second) of Torts § 920 cmt. b (1977) provides:

Damages resulting from an invasion of one interest are not diminished by showing that another interest has been benefited.

The dissent thus demonstrates that principles of tort law cannot strictly be applied to this issue.

To the extent that general tort principles militate against application of the full recovery rule, appellants shift into a policy analysis. This Court declines the invitation to waft between strict application of tort principles and application of public policy, in order to achieve the result of shifting the responsibility of supporting a child from its parents to a third party. Cf. § 568.040 RSMo Supp.1991 (duty of parent to support minor child).

III. Types of Recoverable Damages

The question remains which specific damages are recoverable. Although the issue of damages was not directly before the court in Miller v. Duhart, the court of appeals summarized the type of damages:

As a form of malpractice, “wrongful conception” gives rise to compensatory damages that are measurable. Such damages might include prenatal and postnatal medical expenses, the mother’s pain and suffering during the pregnancy and delivery, loss of consortium, and the cost of a second, corrective sterilization procedure. Miller v. Duhart, 637 S.W.2d at 188.

The measure of damages in a wrongful conception case shall not include the expenses of raising and educating a healthy, normal child. However, in addition to the damages listed in Miller v. Duhart, plaintiffs are entitled to recover, subject to appropriate proof, emotional distress, loss of wages, pain and suffering associated with the second corrective procedure, and any permanent impairment suffered by the parents as a result of the pregnancy, the delivery, or the second corrective procedure.

The judgment of the trial court is affirmed.

ROBERTSON, C.J., and COVINGTON, BLACKMAR, and THOMAS, JJ., concur. WILLIAM E. TURNAGE, Special Judge, concurs in part and dissents in part in separate opinion filed. RENDLEN, J., concurs in opinion of WILLIAM E. TURNAGE, Special Judge. HOLSTEIN, J., not sitting.

1 . Although not specifically pleaded, counsel indicated at oral argument that the child was normal and healthy.

2 . 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) (overruled on other grounds but apparently still valid authority. See, Russell G. Donaldson, Annotation, Recoverability of Cost of Raising Normal, Healthy Child Born as a Result of Physician Negligence or Breach of Contract or Warranty, 89 A.L.R. 4th 632, 641 (1991)); Flowers v. District of Columbia, 478 A.2d 1073 (D.C.App.1984); Fassoulas v. Ramey, 450 So.2d 822 (Fla.1984); Public Health Trust v. Brown, 388 So.2d 1084 (Fla. Dist. Ct.App.1980); Fulton-De Kalb Hospital Authority v. Graves, 252 Ga. 441, 314 S.E.2d 653 (1984); Cockrum v. Baumgartner, 95 Ill.2d 193, 69 Ill.Dec. 168, 447 N.E.2d 385 (1983); Garrison v. Foy, 486 N.E.2d 5 (Ind. App.1985); Nanke v. Napier, 346 N.W.2d 520 (Iowa 1984); Byrd v. Wesley Medical Center, 237 Kan. 215, 699 P.2d 459 (1985); Schork v. Huber, 648 S.W.2d 861 (Ky.1983); Pitre v. Opelousas General Hospital, 530 So.2d 1151 (La.1988); Macomber v. Dillman, 505 A.2d 810 (Me.1986); Rinard v. Biczak, 177 Mich.App. 287, 441 N.W.2d 441 (1989) (though Michigan’s position is unclear, See, Russell G. Donaldson, Annotation, Recoverability of Cost of Raising Normal, Healthy Child Born as a Result of Physician Negligence or Breach of Contract or Warranty, 89 A.L.R. 4th 632, 658-660 (1991)); Kingsbury v. Smith, 122 N.H. 237, 442 A.2d 1003 (1982); P. v. Portadin, 179 N.J.Super. 465, 432 A.2d 556 (App.1981); O'Toole v. Greenberg, 64 N.Y.2d 427, 488 N.Y.S.2d 143, 477 N.E.2d 445 (1985); Jackson v. Bumgardner, 318 N.C. 172, 347 S.E.2d 743 (1986); Johnson v. University Hospitals of Cleveland, 44 Ohio St.3d 49, 540 N.E.2d 1370 (1989); Morris v. Sanchez, 746 P.2d 184 (Okla.1987); Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 453 A.2d 974 (1982); Smith v. Gore, 728 S.W.2d 738 (Tenn.1987); Terrell v. Garcia, 496 S.W.2d 124 (Tex.Civ.App.1973); C.S. v. Nielson, 767 P.2d 504 (Utah 1988); Miller v. Johnson, 231 Va. 177, 343 S.E.2d 301 (1986); McKeman v. Aasheim, 102 Wash.2d 411, 687 P.2d 850 (1984); James G. v. Caserta, 175 W.Va. 406, 332 S.E.2d 872 (1985); Beardsley v. Wierdsma, 650 P.2d 288 (Wyo.1982).

3 . The benefits rule has been adopted in six jurisdictions. University of Arizona Health Sciences Center v. Superior Court, 136 Ariz. 579, 667 P.2d 1294 (1983); Morris v. Frudenfeld, 135 Cal.App.3d 23, 185 Cal.Rptr. 76 (1982); Ochs v. Borrelli, 187 Conn. 253, 445 A.2d 883 (1982); Jones v. Malinowski, 299 Md. 257, 473 A.2d 429 (1984); Burke v. Rivo, 406 Mass. 764, 551 N.E.2d 1 (1990); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977) (though Minnesota’s position is unclear, See, Russell G. Donaldson, Annotation, Recoverability of Cost of Raising Normal, Healthy Child Born as a Result of Physician Negligence or Breach of Contract or Warranty, 89 A.L.R. 4th 632, 660-662 (1991)).