Morris v. Sanchez

746 P.2d 184, 1987 WL 4347

• Court: Supreme Court of Oklahoma
• Decided: November 17, 1987
• Docket: 63675, 63768
• Status: Published

Opinions

LAVENDER, Justice.

The United States District Courts for the Northern and Western Districts of Oklahoma certified similar questions of law to this Court under the Uniform Certification of Questions of Law Act, 20 O.S. 1981 §§ 1601 through 1612. Upon the request of the certifying courts this Court has granted a consolidation of these matters and the Federal District Courts have submitted a unified set of questions to be addressed. The parties to the actions in the federal courts have filed briefs setting forth their positions on these questions. The questions presented for consideration are:

1. In a medical malpractice action against a physician concerning a failed sterilization procedure which resulted in the birth of a healthy child, may a patient recover as an element of damages the cost of rearing the child?

2. If the answer to question No. 1 is affirmative, may the finder of fact consider the love and affection and/or benefits due to the child’s services the parents may receive from the child as factors which mitigate the loss caused by the financial burden of rearing the child?

3. In the event of a conception, do the plaintiff or plaintiffs have a duty to mitigate damages such as by obtaining a timely abortion or by attempting to place the child for adoption?

The certified facts accompanying the propounded questions indicate that the female plaintiffs in both cases sought to be sterilized through medical procedures. In the Morris case the procedure utilized was a tubal ligation in which the plaintiffs fallopian tubes were surgically cut. Plaintiff Stout sought a laparoscopic falope ring application in which the fallopian tubes are sealed by the application of a ring to block the passage to the uterus. Plaintiffs in both cases now contend that these procedures were negligently performed, and, as a result of this negligence, neither was truly sterilized. Both women subsequently became pregnant and both have given birth to healthy female children.

I.

One of the elements of the damages for which both sets of plaintiffs seek recovery is the costs of rearing the children born to them following the attempted sterilizations. The first two questions presented in this certification concern whether this element of damages is recoverable in this jurisdiction and whether, if recoverable, the costs of rearing are to be offset by the benefits to the parents from the birth of the child. Of necessity, we consider these questions together.

Although courts¹ have spoken in absolute terms of allowing the costs of raising a child as a recoverable element of damages in a medical malpractice action for negligent sterilization, we find no support for the proposition that a full recovery for such costs should be allowed without offsets for the benefits conferred.² There thus appear to be two divergent lines of authority governing recoverable damages in this type of action. As this jurisdiction has not addressed this issue previously, it is now incumbent upon us to determine the limits of this cause of action.

The right to refrain from procreation through use of contraception and thus to plan one’s family, or to abstain from having children altogether through the use of sterilization, is a right recognized to be of Constitutional dimensions.³ Where the exercise of this right is interfered with as a result of the negligent performance of a physician in an attempted sterilization procedure, it is clear that a cause of action exists to recover for the detriment⁴ resulting from such negligence. The measure of detriment flowing from the existence of the cause of action is, on the other hand, an area considerably occluded by conflicting considerations of vital importance.

A minority of jurisdictions having considered this point have stated that the question of detriment should be addressed strictly as an issue under traditional tort law.⁵ Under this view the birth of the child proximately results from the tortfeasor’s negligence and the costs of raising the child should be considered as an element of damages. These courts further allow the benefits derived from the unintentional parenthood to be considered as an offset to the detriment claimed to have been incurred.⁶

The apparent rationale for this allowance of rearing costs, with an offset for benefits received, lies in the coupling of the concept that one who is injured by the wrongful act of another should be fully compensated for the results of that wrongful act, with the principle that any benefit conferred by the wrongful act should be allowed as an offset against the recovery.⁷ This application of the offset of benefits rule, founded as it is in the Restatement (Second) of Torts,⁸ has been subject to criticism for its failure to literally comply with the provision of the rule limiting the offset to benefits conferred on the interest of the plaintiff for which he claims harm.⁹ Under this analysis only the monetary benefits flowing from the birth of the unplanned child could be used to offset the monetary detriment flowing from the costs of raising the child.¹⁰

The strict application of section 920¹¹ has been rejected, however, on the ground that the provision is essentially rooted in the concept of preventing unjust enrichment.¹² It has been reasoned that:¹³

The major difficulty in applying the “benefit” rule is that comment 6 [sic] to Section 920 of the Restatement indicates that benefits to one type of interest may not offset damages to another type of interest. Nevertheless, the benefit rule is rooted in the equitable principle of unjust enrichment. See Sherlock v. Stillwater Clinic, 260 N.W.2d at 176. In a cause of action for “wrongful pregnancy,” it would be unfair and would result in unjust enrichment to strictly apply the “same interest” limitation. Since the economic burden and emotional distress of rearing an unexpected child are inextricably related to each other, I would hold that the reasonable costs of rearing a child may be offset by the value of the economic and emotional benefits conferred on the parents by a child. See Troppi ¶. Scarf SI Mich.App. at 258, 187 N.W.2d at 518. Accord, Sherlock v. Stillwater Clinic, 260 N.W.2d at 176_

The application of this approach has allowed the jurisdictions allowing the recovery of the costs of rearing an unplanned child as an item of damages in a medical malpractice action for negligent sterilization to offset that recovery by the value of the intangible benefits of parenthood.¹⁴

It is argued that this approach, allowing full recovery of all items of damages accompanying the unwanted pregnancy, in-eluding the costs of raising the unplanned child, combined with the application of the offsetting benefits rule, as tailored to meet the peculiar circumstances underlying such a cause of action as we face here, furthers the basic principle of tort law; that the tort-feasor must be held responsible for all the detriment flowing from his tortious act. Yet, as attractive as this argument seems on the surface, it remains a minority viewpoint.

The majority of jurisdictions having considered this matter have concluded that, as a matter of law, the costs of raising the unplanned child may not be recovered in a medical malpractice action for negligent sterilization.¹⁵ The reasons given for this determination have ranged from elaborate to extremely simple. Our examinations of those various reasons find them to be compelling. One thread connects the reasoning common to all these cases. That thread is the sanctity which must be placed on human life.

If, as those jurisdictions allowing recovery for costs of raising an unplanned child agree, the benefits flowing from the life of an unplanned child must be allowed as an offset to the costs of raising the child, would we not then be required to allow, as an offset to the benefits from the life of a child recoverable as damages in a wrongful death action,¹⁶ the costs of raising the child which will not be incurred because of the child’s death? Would we not then be faced with the necessity of considering the death of the child in terms of the benefit bestowed upon the parents? This, in essence, is the heart of the matter before us. To consider the costs of raising an unplanned child as an element of damages incurred, we are required to embrace the logical conclusion that the nonexistence of that child would be a benefit. This we cannot do.

For this reason, we join in the view expressed by the Supreme Court of our sister state of Kansas:¹⁷

Having considered the three views and the arguments advanced in support of each of them, we conclude that the majority rule should apply in this jurisdiction and we adopt it. In a medical malpractice action for negligent sterilization, the projected cost of rearing a normal, healthy child to majority may not be recovered.

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. Conversely, we cannot recognize actions for wrongful birth or wrongful conception of a normal, healthy child. 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.

We agree with the rationale of the New York Supreme Court, Appellate Division, as expressed in Weintraub v. Brown, 98 App.Div.2d 339, 348-49, 470 N.Y.S.2d 634 (1983):

“We have carefully considered the competing legal and ethical viewpoints expressed in this nettlesome area of the law, viewpoints which challenge the fundamental assumptions of our legal system and values. We conclude, as has the majority of the jurisdictions which have decided the issue, that denial of ordinary child rearing costs in wrongful pregnancy actions is to be preferred. As a matter of public policy we are unable to hold that the birth of an unwanted but otherwise healthy and normal child constitutes an injury to the child’s parents and is, therefore, compensable in a medical malpractice action. Such a holding would be incompatible with contemporary views concerning one of life's most precious gifts — the birth of a normal and healthy child. We are loath to adopt a rule, the primary effect of which is to encourage, indeed reward, the parents’ disparagement or outright denial of the value of their child’s life. While we attempt not to adjudicate cases which come before us on the basis of emotion, sentiment, or personal preferences, a proper respect for the value of life — a cornerstone of our legal system — does not run counter to this principle. Accordingly, we affirm that part of the order under review which dismisses so much of the second cause of action as seeks to recover ordinary child rearing costs.”

Many other reasons for the adoption of the majority rule are stated in the cited cases, but we need not base our opinion upon them. We hold simply that under the public policy of this state, a parent cannot be said to be damaged by the birth of a normal, healthy child, and the parent may not recover damages because of the birth of such a child.

II.

The third question presented to us in this certification queries whether the plaintiff parents in a medical malpractice action for negligent sterilization have a duty to mitigate their damages through resort to abortion, or through putting the unplanned child up for adoption. As we have held as a matter of public policy that the costs associated with the life of the child are not an element of damages recoverable in such an action, we need not reach this question as there would be no cognizable harm coming from the life of that child which would necessarily require mitigation.¹⁸

We also note that, under Oklahoma law, one is only required to take reasonable actions in mitigation of damages.¹⁹ In this regard we concur with those jurisdictions which have reached the question as a necessary concomitant of allowing the costs of raising an unplanned child as an element of damages, and have held that the concept of requiring abortion or adoption under these circumstances is, as a matter of law, unreasonable.²⁰

III.

Our answers to the questions presented by the United States District Courts for the Northern and Western Districts of Oklahoma are thus:

1. A plaintiff or plaintiffs in a medical malpractice action for negligent sterilization may not recover the costs of raising a healthy normal, but unplanned child as an element of damages.

2. As the answer to the first question is negative we need not specifically address the second question.

3. As we have found that the plaintiff parents in a medical malpractice action for negligent sterilization suffer no legally cognizable harm as a result of the life of the unplanned child, they are under no legal obligation to dispose of that life. Further, the concept of disposal of that life would be, as a matter of law, unreasonable as an action in mitigation of damages in this context.

DOOLIN, C.J., HARGRAVE, V.C.J., and LAVENDER, ALMA WILSON and SUMMERS, JJ., concur. HODGES, J., joined by SIMMS, J., concurs in part, dissents in part. OPALA, J., joined by KAUGER, J., concurs in part, dissents in part.

1 . E.g. Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463 (1967); Bowman v. Davis, 48 Ohio St.2d 41, 356 N.E.2d 496 (1976).

2 . Stills v. Gratton, 55 Cal.App.3d 698, 127 Cal. Rptr. 652 (1976), states that Custodio, supra note 1, stands for the proposition that costs of raising a child are recoverable, but that offsets for benefits conferred may also be proven.

Bowman v. Davis, supra note 1, states in footnote one of the opinion that the issue of damages was not before the court and not decided in the opinion.

3 .See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).

4 . 23 O.S. 1981 § 61, provides:

For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this chapter, is the amount which will compensate for all detriment proximately caused thereby, whether it could have been anticipated or not.

5 . University of Arizona v. Superior Court, 136 Ariz. 579, 667 P.2d 1294 (1983); Stills v. Gratton, supra note 3; Ochs v. Borrelli, 187 Conn. 253, 445 A.2d 883 (1982); Jones v. Malinowski, 299 Md. 257, 473 A.2d 429 (1984); Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn. 1977).

6 . Univ. of Ariz. v. Superior Court, supra note 7, Stills v. Gratton, supra note 3, and Troppi v. Scarf, supra note 7, indicate that the benefits derived from the unplanned birth should be considered as offsetting all the items of damages claimed in the action. Ochs v. Borrelli, supra note 7, Jones v. Malinowski, supra note 7, and Sherlock v. Stillwater Clinic, supra note 7, indicate that the offset of benefits from the birth of the unplanned child should only be applied against the costs of raising the child.

7 . RESTATEMENT (SECOND) OF TORTS § 920 (1977), states:

When the defendant's tortious conduct has caused harm to the plaintiff or to his property 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.

8 . Id.

9 . See, e.g., Comment, Liability for Failure of Birth Control Methods, 76 Colum L.Rev. 1187 (1976); Note, Wrongful Conception: Who Pays for Bringing Up Baby?, 47 Fordham L.Rev. 418 (1978); Note, Recovery for Wrongful Conception: Who Gets the Benefit — The Parents or the Public?, 14 New Eng.L.Rev. 784 (1979); Holt, Wrongful Pregnancy, 33 S.Caro.L.Rev. 759 (1982); Note, Judicial Limitations on Damages Recoverable for the Wrongful Birth of a Healthy Infant, 68 Va.L.Rev. 1311 (1982).

10 . RESTATEMENT (SECOND) OF TORTS § 920 (1977), Comment b, states:

Damages resulting from an invasion of one interest are not diminished by showing that another interest has been benefited. Thus one who has harmed another’s reputation by defamatory statements cannot show in mitigation of damages that the other has been financially benefited from their publication (see Illustration 4), unless damages are claimed for harm to pecuniary interests. (See Illustration 5). Damages for pain and suffering are not diminished by showing that the earning capacity of the plaintiff has bveen increased by the defendant’s act. (See Illustration 6). Damages to a husband for loss of consortium are not diminished by the fact that the husband is no longer under the expense of supporting the wife.

11 . Supra note 9.

12 . Univ. of Ariz. v. Superior Court, 667 P.2d at 1299 (footnote four of the opinion).

13 . Boone v. Mullendore, 416 So.2d 718, 726 (Ala. 1982) (Faulkner, J., specially concurring opinion).

14 . Univ. of Ariz. v. Superior Court, 667 P.2d at 1299; Ochs v. Borrelli, 445 A.2d at 886; Jones v. Malinowski, 473 A.2d at 436, 437; Troppi v. Scarf, 187 N.W.2d at 518; Sherlock v. Stillwater Clinic, 260 N.W.2d at 176.

15 . Boone v. Mullendore, 416 So.2d 718, 726 (Ala. 1982); Wilbur v. Kerr, 275 Ark. 239, 628 S.W.2d 568 (1982); Coleman v. Garrison, 349 A.2d 8 (Del.1975); Flowers v. District of Columbia, 478 A.2d 1073 (D.C.1984); Fassoulas v. Ramey, 450 So.2d 822 (Fla.1984); Fulton-Dealb 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), cert. den. 464 U.S. 846, 104 S.Ct. 149, 78 L.Ed.2d 139; 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); Kingsbury v. Smith, 122 N.H. 237, 442 A.2d 1003 (1982); O’Toole v. Greenberg, 64 N.Y.2d 427, 488 N.Y.S.2d 143, 477 N.E.2d 445 (1985); Weintraub v. Brown, 98 A.D.2d 339, 470 N.Y.S.2d 634 (1983); Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 453 A.2d 974 (1982); Terrell v. Garcia, 496 S.W.2d 124 (Tex.Civ.App. 1973), cert. den. 425 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484; Rieck v. Medical Protective Co., 64 Wis.2d 514, 219 N.W.2d 242 (1974); Beardsley v. Wierdsma, 650 P.2d 288 (Wyo.1982).

16 .12 O.S. 1981 § 1055, provides:

In all actions hereinafter brought to recover damages for the death of an unmarried, un-emancipated minor child, the damages recoverable shall include medical and burial expense, loss of anticipated services and support, loss of companionship and love of the child, destruction of parent-child relationship and loss of monies expended by parents or guardian in support, maintenance and education of such minor child, in such amount as, under all circumstances of the case, may be just.

17 . Byrd v. Wesley Medical Center, 699 P.2d at 467, 468 (1985).

18 . O'Toole v. Greenberg, 477 N.E.2d at 448 (footnote six of that opinion).

19 . See Smith-Horton Drilling Co. v. Brooks, 199 Okla. 63, 182 P.2d 499 (1947); Sackett v. Rose, 55 Okla. 398, 154 P. 1177 (1916).

20 . Univ. of Ariz v. Superior Court, supra note 7; Jones v. Malinowski, supra note 7; Troppi v. Scarf, supra note 7; Sherlock v. Stillwater Clinic, supra note 7. And see Flowers v. Dist. of Columbia, supra note 17 (Ferren, J., dissenting opinion); Fassoulas v. Ramey, supra note 17 (Erlich, J., dissenting). And see also Ziemba v. Sternberg, 45 A.D.2d 230, 357 N.Y.S.2d 265, 269 (1974), ‘‘The right to have an abortion may not be automatically converted into an obligation to have one."