Judgment rendered June 30, 2021. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 53,958-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
TARA JEFFERSON ROBINSON AND NORRENCE ROBINSON, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, S.R. Appellants
versus
DARYL MITCHELL, ET AL. Appellees *****
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 603,276
Honorable Craig Owen Marcotte, Judge
LAW OFFICE OF SUSAN E. HAMM Counsel for Appellants By: Susan E. Hamm
JEFFREY M. LANDRY Counsel for Appellee, Louisiana Attorney General State of Louisiana
DAVID H. NELSON Assistant Attorney General
McNEW, KING & LANDRY, LLP Counsel for Appellee, By: Brady D. King, II Louisiana Patient’s Compensation Fund
Before COX, STEPHENS, and ROBINSON, JJ. COX, J.
This case arises out of the First JDC, Caddo Parish, Louisiana. Tara
and Norrence Robinson filed suit individually and on behalf of their minor
child, S.R. (collectively referred to as “the Robinsons”), against Dr. Daryl
Mitchell (“Dr. Mitchell”), Louisiana Medical Mutual Insurance Company
(“LAMMICO”), Willis Knighton South Health Center (“WKS”), Willis
Knighton Health Systems (“WKHS”), Willis Knighton Health Systems
Laboratories (“WKHSL”), Dr. Daryl Mitchell and Dr. Cynthia Montgomery,
AMPC d/b/a Mitchell & Montgomery M.D.s (“Dr. Mitchell’s office”), and
Jeff Landry, Attorney General of the State of Louisiana (hereinafter
collectively referred to as “Defendants”). The Louisiana Patient’s
Compensation Fund (“LPCF”) and the Louisiana Patient Compensation
Fund Oversight Board (“LPCFOB”) were later added as defendants. In
addition to other claims not at issue in this appeal, the Robinsons filed a
wrongful life claim on S.R.’s behalf. The LPCF filed a partial exception of
no cause of action and dismissal of the wrongful life claim. The trial court
granted the partial exception of no cause of action and dismissed with
prejudice the wrongful life claim. The Robinsons now appeal that judgment.
FACTS
Dr. Mitchell confirmed Mrs. Robinson’s pregnancy through an
ultrasound on February 25, 2014. On April 17, 2014, Dr. Mitchell ordered a
Quad Screen Test, which is a blood test to determine whether an unborn
child is at risk for certain genetic conditions. Among other genetic markers,
the test screens for Down syndrome, which occurs when there is an extra
copy of the chromosome 21 in a person’s DNA. Mrs. Robinson’s blood sample was collected by WKHSL and sent to Mayo Medical Laboratories
(“Mayo”), where the Quad Screen was performed. Mayo sent the test results
to WKHSL via computer. The results, which showed a positive result for
Down syndrome, were received by WKHSL on April 21, 2014.
WKHSL then forwarded the results via facsimile to Dr. Mitchell’s
office, which Dr. Mitchell designated as the preferred method of delivery.
The Quad Screen results were retrieved by Sharon Trent, LPN and employee
of Dr. Mitchell’s office. Nurse Trent recorded the test results on Mrs.
Robinson’s medical chart as “negative,” or not at risk for Down syndrome.
The Quad Screen results were then placed in Mrs. Robinson’s chart for
review by Dr. Mitchell. Dr. Mitchell initialed the test results and informed
the Robinsons that the results were normal on her next office visit.
Subsequent ultrasounds were performed by Dr. Mitchell’s office, none of
which revealed abnormalities.1
Dr. Cynthia Montgomery delivered S.R. via Cesarean section on
September 28, 2014. At birth, S.R. was noted to have features suggestive of
Down syndrome. S.R. was admitted to the NICU, and an examination
showed that S.R. had multiple features consistent with Down syndrome. A
blood sample was collected from S.R., a chromosome analysis was
performed, and the results were consistent with Down syndrome. Dr.
Mitchell reviewed Mrs. Robinson’s file and told the Robinsons that he
previously read the Quad Screen results incorrectly. At this point, the
Robinsons were informed of the Down syndrome diagnosis.
1 This recount of the medical events is derived from the MRP opinion.
2 The Robinsons first presented their claim to a medical review panel
(“MRP”). The MRP found that the evidence did not support a finding that
WKHS, WKHSL, or WKS failed to meet the applicable standard of care. It
found that the evidence supported a finding that Dr. Mitchell and his office
failed to meet the applicable standard of care. However, due to conflicting
evidence, the members of the panel were unable to determine whether this
conduct was a factor of the resultant damages alleged by the Robinsons.
The MRP stated that LPN Trent misread the lab results on April 22,
2014, and failed to advise Dr. Mitchell that the Down syndrome result was
positive. Although Dr. Mitchell initialed the report, he failed to note that
the result was positive. The MRP found that both LPN Trent and Dr.
Mitchell failed to meet the applicable standard of care, and noted that it is
the physician’s responsibility to review the test results.
As to damages, the MRP opinion stated that when Dr. Mitchell
informed the Robinsons of the Down syndrome diagnosis, “they told him
that they would not have really changed anything and that they would still
love their child.” The MRP noted that the parents stated in their submission
to the panel that had they known the lab result was positive for Down
syndrome, they would have terminated the pregnancy. This conflicting
evidence prevented the MRP from determining whether the complained of
conduct was a factor of the resultant damages, which the parents contend is
the birth of a child with Down syndrome.
The Robinsons filed their petition for damages against Defendants in
district court on September 1, 2017. The Robinsons alleged that WKS,
WKHS, WKHSL, and Dr. Mitchell’s office are vicariously liable for the
3 medical negligence committed by their employees in the course and scope of
their employment. LAMMICO is the insurer for Dr. Mitchell’s office.
In their petition, the Robinsons stated, “Given the extraordinary
suffering experienced by S.R. as a result of being born with Down
syndrome, never being born is and always will be preferred to being born
with Down syndrome.” They stated that had they known the Quad Screen
revealed a risk of giving birth to a child with Down syndrome, they would
have terminated the pregnancy. They alleged the following damages:
1) Past, present and future loss of love, affection, society, nurturing, guidance, and companionship suffered by [the Robinsons]; 2) Past, present and future mental and emotional anguish suffered by [the Robinsons]; 3) Past, present and future pain and suffering; 4) Past, present and future extraordinary medical and counseling expenses and related benefits of S.R., including but not limited to custodial care of S.R.; 5) Loss of enjoyment of life; 6) Lost wages and support and/or loss of potential income; 7) Lost income; 8) Loss of earning capacity; 9) Wrongful life; 10) Extraordinary financial loss and/or expenses as a result of the negligence of defendants; 11) Past, present and future medical care and treatment and related benefits of S.R.; 12) Past, present and future custodial care of S.R.
They stated the following in their petition regarding S.R.:
The infant, S.R., is and always will be physically, developmentally, mentally, intellectually and emotionally delayed as expected of and consistent with a person with Down syndrome. This condition is a chromosomal abnormality and is permanent. S.R. will live her whole life with physical, developmental, mental, intellectual and emotional delays and abnormalities requiring extraordinary medical care and treatment that a normal healthy baby, child and/or adult would not experience. Consequently, S.R. has and will continue to have extraordinary challenges, responsibilities, and financial burdens as well as extraordinary mental and emotional trauma for the rest of her life. The responsibilities and financial
4 burdens will likely continue even after the death of the parents and caretakers of S.R., Tara Robinson and Norrence Robinson, as people with Down syndrome now live into their 60s and even 70s with appropriate medical and psychological care and treatment. The Robinsons listed 13 issues and/or conditions that S.R. could
potentially face, and of those 13 conditions, S.R. currently shows signs of or
is treated for hypotonia and ligament laxity, gastrointestinal issues, Celiac
disease, pulmonary issues, low thyroid, and emotional issues.
The Robinsons stated that the doctrine of res ipsa loquitur applies
because the events in this case could not reasonably have occurred absent
the negligence of Defendants. They argued that the Medical Malpractice
Act and the Liability for State Services Act, including the cap on recovery,
are unconstitutional in that they violate Art. 1, Sec. 2- Due Process; Art. 1,
Sec. 3- Equal Protection; Art. 1 Sec. 4- Right to Property; and, Art. 1, Sec.
22- Access to Courts. The Robinsons also requested a jury trial.
The State, through the Louisiana Attorney General, intervened in the
suit and requested the trial on the merits be bifurcated from the trial on the
constitutional issues raised. The trial court bifurcated the case and stated the
trial on the constitutional issues would not be scheduled until a ruling on the
merits is entered.
WKHS, WKS, and WKHSL filed their answer on October 27, 2017.
They denied that they, or anyone for whom they are responsible, are guilty
of any fault, negligence, or breach of a medical standard of care. They
highlighted that the MRP unanimously found that they did not fail to meet
the appropriate standard of care.
5 Dr. Mitchell, his office, and LAMMICO answered the Robinsons’
petition on November 8, 2017. They also denied the allegations and
liability. They stated that this case falls under the Louisiana Medical
Malpractice Act (“MMA”) and in the alternative, pled an act of God.
The Robinsons amended their petition on April 24, 2018, and added
the following damages:
13) Wrongful Birth; 14) Ordinary and usual financial burden, loss and/or expenses of raising a child.
WKHS, WKS, and WKHSL, answered the amended petition and filed
a motion for summary judgment (“MSJ”). They asserted that “there is no
genuine issue of material fact that there was no deviation from the standard
of care on their part in the treatment provided to [Mrs. Robinson], the
alleged conduct of these defendants did not cause additional injury, the
plaintiffs do not have any expert witness to satisfy their burden of proving a
deviation from the standard of care on the part of these defendants caused
additional injury that would not otherwise have occurred[.]” They stated
that the Robinsons have not responded to interrogatories and have not
revealed any expert witness to support a deviation from the standard of care.
The Robinsons stated they did not intend to produce any expert
testimony regarding the standard of care applicable to WKHS, WKS, and
WKHSL. The Robinsons did not oppose the dismissal of these defendants
from the suit. The trial court granted the MSJ on behalf of WKHS, WKS,
and WKHSL, and dismissed them from the suit with prejudice.
The Robinsons filed a petition for authorization to settle medical
malpractice claim with reservation of rights on June 11, 2019. The
6 settlement was between the Robinsons and Dr. Mitchell and his office. The
Robinsons agreed to $2,500 from Dr. Mitchell and $100,000 from his office,
in addition to an agreement to keep these two defendants listed in name only
for the purposes of requesting additional damages against the LPCF and the
LPCFOB. The Robinsons stated that they received the money, but it was not
enough to cover damages. They agreed to release Dr. Mitchell and his office
from any other claims or damages arising in this suit. The only remaining
defendants are the LPCF and LPCFOB.2
The LPCF responded to the settlement petition and asserted its right to
a $100,000 credit against any future judgment in the matter by virtue of the
settlement. It reserved the right to assert the affirmative defenses of waiver,
estoppel, set off, and/or failure to mitigate damages and reserved the right to
contest that the claims asserted are covered by the MMA.
The LPCF did not agree with the proposed settlement judgment. It
argued that although the $100,000 settlement does establish the liability of
the settling healthcare provider, the Robinsons still have the burden of
proving that the admitted medical malpractice caused damages in excess of
$100,000. Their second argument concerned whether the Robinsons have a
cause or right of action to prosecute a wrongful birth or wrongful life claim.
The trial court signed a judgment concerning the settlement, but reserved to
the LPCF the right to contest causation and damages, as well as whether the
Robinsons may assert a cause of action for wrongful birth or wrongful life.
The LPCF filed a partial exception of no cause of action and dismissal
of the wrongful life claim. It stated that the Robinsons have brought a
2 The State of Louisiana remains a party on the constitutional issues.
7 wrongful birth claim on their own behalf and a wrongful life claim on behalf
of S.R. In this exception, the LPCF is only arguing the wrongful life claim
should be dismissed at this time. It highlighted that the petition for approval
of settlement stated that S.R.’s chromosomal condition and alleged physical
and mental disabilities were not caused by the healthcare providers. It stated
that the petition does not allege acts or omissions which either caused the
Down syndrome or allowed the pregnancy of S.R.
The LPCF detailed the difference between wrongful birth (a claim
brought by the parents claiming they would have avoided conception or
terminated the pregnancy if they had been informed of the risk of birth
defects), wrongful life (claim brought on behalf of the child and seeks to
recover damages for having to endure life in an afflicted condition), and
wrongful pregnancy/conception (claim brought by the parents of a healthy
child alleging the negligent performance of a sterilization procedure and
seeks to recover damages resulting from the unintended conception and
birth). It argued that Pitre v. Opelousas General Hospital, 530 So. 2d 1151
(La. 9/12/1988), and subsequent cases on the issue of wrongful life have
held that wrongful life is not an action in Louisiana.
It cited Davis v. Board of Supervisors of La. State Univ. & Agr. &
Mech. Coll., 97-0382 (La. App. 4 Cir. 3/18/1998), 709 So. 2d 1030, as
stating that the healthcare providers did not act or fail to act in any way that
contributed to the child’s genetic condition, which is the same issue in the
case at hand. The Fourth Circuit stated, “We are troubled by the
philosophical conundrum flowing from [the claimant’s] suggestion that
8 somehow she would have been advantaged had she not been born. This
begs the question of how a person who never existed is advantaged[.]”
The LPCF argued that although the claim is brought by the
Robinsons, it is S.R.’s claim. Essentially, her options were life with Down
syndrome “or death by abortion.” It questioned whether under our law,
there is an option for S.R. in the first place and notes that Louisiana law
prohibits anyone from assisting someone in a suicide. Finally, it stated, “As
a Wrongful Life claim is based solely upon the legal fiction that an unborn
child would have chosen being aborted rather than life with an afflicted
condition, a Wrongful Life claim, if recognized in Louisiana, would have to
completely ignore the widely recognized presumption that all human beings
have an innate and compelling instinct for self-preservation and be based
solely upon rank speculations, i.e. what option would the unborn child
choose?”
The Robinsons opposed the exception of no cause of action, arguing
that Louisiana law does recognize the need for compensation for damages
suffered by a child resulting from birth. They argued that the Pitre case is
distinguishable because Pitre dealt with a case of albinism, which was not
reasonably foreseeable, and their case deals with Down syndrome, which is
reasonably foreseeable via testing. They also pointed out that the Davis
court declined to address whether or not Louisiana recognizes an action for
wrongful life and the LPCF’s quotes from Davis are dicta.
On August 24, 2020, the trial court heard argument regarding the
partial exception of no cause of action regarding S.R.’s wrongful life claim.
At the hearing, the Robinsons argued that Dr. Mitchell caused S.R. to have
9 to live with Down syndrome and that is no different than causing the Down
syndrome. The LPCF argued that Dr. Mitchell did not cause S.R. to have
Down syndrome, and Louisiana has never considered “life” to be a damage.
The Robinsons countered by stating that the damage is S.R.’s life of pain
and suffering from living with Down syndrome. At the hearing, the trial
court disagreed with the Robinsons’ arguments and granted the no cause of
action for wrongful life. On August 28, 2020, the trial court rendered its
judgment on the partial exception of no cause of action. It granted the
exception of no cause of action regarding S.R.’s wrongful life claim and
dismissed that cause of action with full prejudice. The Robinsons now
appeal that judgment.
DISCUSSION
The Robinsons’ arguments are all closely connected. In their first two
assignments of error, they argue the trial court erred in granting the no cause
of action and dismissing S.R.’s claim for wrongful life. The remaining
arguments deal with the issues of causation and damages, which are required
elements for a tort claim. For this reason, their arguments will be addressed
together. The primary question we must address is whether the State of
Louisiana acknowledges a claim for wrongful life. The Robinsons argue
that jurisprudence has left the door open for a wrongful life claim and that
but for the negligence of Defendants, S.R. would not have been born with
Down syndrome. The LPCF argues that there is no action for wrongful life
in our civil code or statutory provisions and it is the prerogative of the
legislature, not the courts, to change that. The LPCF highlights that the
10 Defendants could not have caused or prevented S.R.’s Down syndrome
because it is a genetic condition.
An exception of no cause of action raises a question of law. Billiot v.
Billiot, 52,391 (La. App. 2 Cir. 11/14/18), 262 So. 3d 401. The standard of
review for an appeal of a no cause of action ruling is de novo. Larkin Dev.
N., L.L.C. v. City of Shreveport, 53,374 (La. App. 2 Cir. 3/4/20), 297 So. 3d
980, writ denied, 2020-01026 (La. 12/22/20), 307 So. 3d 1039.
A wrongful life action is brought by or on behalf of the child for
having to endure life in the afflicted conditions. Pitre, supra. It is alleged
that the physician’s negligent practice or failure to properly advise the
parents has led to the birth of a child in the afflicted condition. Id.
In Davis, the Fourth Circuit stated that because of the facts of that
case, it did not need to address whether Louisiana recognizes a wrongful life
claim. However, the issue has been squarely presented to us in the case
before us. Before determining whether S.R.’s action meets the required
elements of a tort claim, we must first determine if wrongful life is a valid
claim in Louisiana. The Louisiana legislature has been silent on whether
Louisiana will recognize a wrongful life claim. For the reasons outlined
below, we do not find this wrongful life claim to be valid in Louisiana.
In Pitre, the Louisiana Supreme Court first addressed a wrongful life
claim. It found that the doctor did not owe a duty to the unconceived child
to protect her from the risk of being born with albinism. Although it seems
that the Louisiana Supreme Court left the door open for future wrongful life
claims, Louisiana courts have found wrongful life claims to be invalid for
various reasons. In Henry v. Taco-Tio, Inc., 614 So. 2d 772 (La. App. 2 Cir.
11 1993), this Court stated, “Louisiana law has never recognized a cause of
action for wrongful life which is based solely on illegitimacy.” See Latullas
v. State, 94-2049 (La. App. 1 Cir. 6/23/95), 658 So. 2d 800; Lloyd v.
Howard, 566 So. 2d 424 (La. App. 3 Cir. 1990); Doe v. Cronan, 487 So. 2d
461 (La. App. 5 Cir. 1986). Cerebral palsy was not found to be a reasonably
foreseeable defect that would arise from a botched tubal ligation. Conner v.
Stelly, 2002-549 (La. App. 3 Cir. 10/30/02), 830 So. 2d 1102, writs denied,
2003-0129 (La. 3/21/03), 840 So. 2d 540, and 2003-0039 (La. 3/21/03), 840
So. 2d 551. This begs the question of when, if ever, a wrongful life claim
could be a valid cause of action in Louisiana.
The Louisiana First Circuit in Pines v. Dr. Carlos D. Moreno, Inc.,
569 So. 2d 203 (La. App. 1 Cir. 1990) concluded that each plaintiff had
stated a cause of action, of which wrongful life was pled by the plaintiffs,
even though they did not specify what cause of action had been stated.
Wrongful life was not specifically recognized in this case by the First
Circuit. The First Circuit does not recognize partial no causes of action like
the Second Circuit does. As such, we are not sure what cause of action
survived the no cause of action motion.
We are not bound by the decisions of other courts of appeal.
Additionally, we find that Pines is distinguishable from the facts of the case
before us. The Pines case does not indicate that the existence versus non-
existence argument was at the core of the claim. Instead, the mother argued
that the misdiagnosis and subsequent prescription aggravated an existing
condition of the unborn child. The claim label of wrongful life seems to
have come from the court of appeal in its analysis. The trial court stated
12 there was no claim under Pitre, which covers much more than just wrongful
life.
The State of Louisiana historically and presently values the life of the
unborn, as indicated by our legislature, which determines which causes of
action will be available under our law as they are responsible for passing
laws that affect the people of this State. An unborn child shall be considered
as a natural person for whatever relates to its interests from the moment of
conception. La. C.C. art. 26. Under La. C.C. art. 1474, unborn children
have the capacity to receive donations. Under La. C.C. art. 2315.2, both
parents and siblings have recovered for the wrongful death of an unborn
child. See In re Air Crash Disaster at New Orleans, La., 795 F. 2d 1230
(5th Cir. 1986); Danos v. St. Pierre, 402 So. 2d 633 (La. 1981).
Additionally, an unborn child, conceived at the time of the mother’s
accident, and subsequently born alive, would have a cause of action for loss
of consortium. Mason v. Luther, 2005-25 (La. App. 3 Cir. 6/1/05), 903 So.
2d 1145.
Succession law also protects the interest of the unborn. An unborn
child conceived at the death of the decedent and thereafter born alive shall
be considered to exist at the death of the decedent. La. C.C. art. 940. An
unborn child’s rights may be preserved after the death of her father by
appointment of a curator. La. C.C. art. 252. Allowing a claim on behalf of
the child that states the child would be better off having not been born is in
opposition to our laws recognizing and protecting the rights of the unborn.
The wrongful life claim is brought by the parents on behalf of the
child because the child is too young or does not have the capacity to bring
13 the claim herself. The parents are speaking on behalf of the child; the child
is not speaking for herself. Regardless of the outcome, a public record
would always exist to remind the child that her parents, and possibly a jury,
determined that she would have been better off had she not been born. 3 If
this argument was allowed to move forward, the courts would be placed in a
position of determining which conditions or disabilities render a life not
worth living. People with similar conditions or disabilities would then be
grouped with the plaintiff and said to have “wrongful” lives. The courts
have no business declaring that among the living there are groups of people
who should have never been born.4
In the case before us, the Robinsons argue on behalf of their child that
it would have been better if she had not been born rather than to be born
with Down syndrome. We disagree that this is a legally recognizable
argument in Louisiana, regardless of how it is captioned. In addition to the
considerations set forth above, this argument sets up a philosophical and
theological debate as to whether a child’s request for abortion is akin to
requesting assistance in suicide. Our jurisprudence recognizes that the first
law of nature is that of self-preservation. A person is conclusively presumed
to act in such a manner as will not unnecessarily expose himself to physical
harm. Lipscomb v. News Star World Pub. Corp., 5 So. 2d 41 (La. App. 2
Cir. 1941); see also Carter v. City Par. Gov’t of E. Baton Rouge, 423 So. 2d
1080 (La. 1982). Additionally, Louisiana criminalizes the assistance of
suicide. La. R.S. 14:32.12.
3 Kathleen Gallagher, Comment, Wrongful Life: Should the Action Be Allowed?, 47 La. L. Rev. 1319 (1987). 4 Id.
14 The Robinsons raise the issue of abortion in this case by stating they
would have aborted within the time limits allowed by law if they would have
known of the defect. The laws of this country, whether agreed upon or not,
give the mother the right to choose abortion within certain guidelines, not
the unborn child. Given that an unborn child cannot choose an abortion of
herself, it follows that a child cannot sue her doctor, or even parents, for not
having been aborted.
Additionally, in their petition, the Robinsons further stated, “Given
the extraordinary suffering experienced by S.R. as a result of being born
with Down syndrome, never being born is and always will be preferred to
being born with Down syndrome.” We cannot agree that a life with Down
syndrome is not worth living. Down syndrome is the most commonly
occurring chromosomal condition. Approximately one in every 700 babies
in the U.S. is born with Down syndrome—around 600 births per year.5 We
have made great societal and medical strides in understanding and treating
children born with Down syndrome. During the first half of the 20 th century,
the majority of children with Down syndrome were placed in institutions.6
The families were convinced, often by members of the medical community,
that the child was less than human and their needs would be so great that the
families would not be able to raise them.7 Now, people with Down
syndrome are active participants in educational, social, and recreational
5 Down Syndrome Myths & Truths, National Down Syndrome Society (last visited June 4, 2021), https://www.ndss.org/wp-content/uploads/2017/08/NDSS-Myths-and- Truths-2015.pdf. 6 History of NADS, National Association for Down Syndrome (last visited June 4, 2021), https://www.nads.org/about-us/history-of-nads. 7 Id.
15 activities.8 They are included in the typical education system, participate in
sports, music, art programs, and other activities in their communities.
Increasingly, individuals with Down syndrome graduate from high school
with diplomas, and participate in postsecondary academic and college
programs.9 People with Down syndrome are valued members of their
families and communities, and make meaningful contributions to society. 10
We refuse to regress back to the early 20th century way of thinking
about children with Down syndrome. A life with Down syndrome, although
difficult, does not equate to a life not worth living.
CONCLUSION
For the reasons stated above, we affirm the trial court’s judgment
granting the LPCF’s partial exception of no cause of action and dismissal of
S.R.’s wrongful life claim. Costs associated with this appeal are assigned to
the Robinsons.
AFFIRMED.
8 Down Syndrome Myths & Truths, supra. 9 Id. 10 Id.