Viccaro v. Milunsky

551 N.E.2d 8, 406 Mass. 777
CourtMassachusetts Supreme Judicial Court
DecidedMarch 1, 1990
StatusPublished
Cited by35 cases

This text of 551 N.E.2d 8 (Viccaro v. Milunsky) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Viccaro v. Milunsky, 551 N.E.2d 8, 406 Mass. 777 (Mass. 1990).

Opinions

Wilkins, J.

A judge of the United States District Court for the District of Massachusetts has certified novel questions of Massachusetts law to this court. See S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981). The judge asks whether a child who was born with a genetic defect and his parents have bases under Massachusetts law for recovery against a physician whose negligent preconception counseling led the parents to decide to conceive children.

The facts presented to us in association with the certified questions are brief. In November, 1976, not then married, the Viccaros consulted the defendant physician, a specialist in genetics, genetic disorders, and genetic counseling, concerning the possibility that Amy might have, or be a carrier of, a genetic disorder known as ectodermal dysplasia.2 The defendant concluded that Amy did not have the disease and that there should be no likelihood of her developing the disorder or of having affected children. In October, 1977, the Viccaros were married. Relying on the defendant’s assurances, they bore children. Their first child, a daughter, was born in July, 1980, apparently healthy, without manifestations of the disorder. On March 27, 1984, Adam was born severely afflicted with anhidrotic ectodermal dysplasia. He will require special medical care throughout his life and will suffer substantial physical pain and mental anguish. The Viccaros have suffered and will continue to suffer severe emotional distress and substantial physical injuries (whose nature and cause are not disclosed on the record). Their complaint seeks, in addition to emotional distress damages, recovery of the extraordinary expenses for Adam’s care, support, and education; their [779]*779loss of companionship of a normal son; and their loss of the services and earnings of a normal son.3

The Parents’ Claim

We think it preferable to consider and decide questions concerning the parents’ claim first. The first question as to them appears in the margin4 and inquires as to whether there is in Massachusetts a cause of action against a physician for negligent preconception genetic counseling. The second question, also in the margin,5 inquires about damages in specific [780]*780detail. On the damage question, we shall answer only as to those elements of damage to which the Viccaros have argued they are entitled.6

If a child is born with a congenital or genetic disorder, almost all courts have allowed the parents to recover against a negligent physician the extraordinary medical, educational, and other expenses that are associated with and are consequences of the disorder. See, e.g., Lininger v. Eisenbaum, 764 P.2d 1202, 1206-1207 (Colo. 1988) (extraordinary medical and educational expenses of congenitally blind child, recoverable, even after his majority, if he will remain a legal dependent of parents; such damages not to be offset by any benefit to parents; no opinion expressed on emotional distress damages); Haymon v. Wilkerson, 535 A.2d 880, 885-886 (D.C. App. 1987) (extraordinary medical and other expenses, recoverable; no claim made for ordinary child-rearing expenses; postmajority expenses left unresolved); Fassoulas v. Ramey, 450 So. 2d 822, 823 (Fla. 1984) (extraordinary costs of rearing defective child to majority allowed but not ordinary rearing costs); Siemieniec v. Lutheran Gen. Hosp., 117 Ill. 2d 230, 260-262 (1987) (extraordinary expenses allowed but sought only for period of child’s minority; emotional distress damages denied); Smith v. Cote, 128 N.H. 231, 242-247 (1986) (medical and educational costs and extra burden of care by parents attributable to child’s impair[781]*781ment, recoverable, including postmajority costs, but no recovery for emotional distress); Schroeder v. Perkel, 87 N.J. 53, 68-69 (1981) (recovery allowed for incremental medical costs); Jacobs v. Theimer, 519 S.W.2d 846, 849 (Tex. 1975) (expenses reasonably necessary for the care and treatment of child’s physical impairment, recoverable); Harbeson v. Parke-Davis, Inc., 98 Wash. 2d 460, All (1983) (extraordinary medical, educational, and similar expenses attributable to defective condition, recoverable; emotional distress of parents also recoverable, offset by any emotional benefits from the child’s birth); Dumer v. St. Michael’s Hosp., 69 Wis. 2d 766, 776 (1975) (additional medical and supportive expense occasioned by the child’s deformities, recoverable). The only authority to the contrary that we have discovered is in North Carolina and Missouri. See Azzolino v. Dingfelder, 315 N.C. 103, 111 (1985) (no recovery for postconception negligence allegedly leading to birth of child with Down’s syndrome), cert, denied, 479 U.S. 835 (1986) (four-to-three decision). Compare Jackson v. Bumgardner, 318 N.C. 172, 180-181 (1986) (liability to parents for preconception negligence resulting in birth of healthy child); Gallagher v. Duke Univ., 852 F.2d 773, 776 (4th Cir. 1988) (applying North Carolina law) (liability for preconception negligence resulting in birth of impaired child). See also Wilson v. Kuenzi, 751 S.W.2d 741, 745-746 (Mo.), cert, denied, 109 S. Ct. 229 (1988) (no liability for failure to advise of amniocentesis test that deprived mother of the chance to have an abortion); Shelton v. St. Anthony’s Medical Center, 781 S.W.2d 48, 50 (Mo. 1989) (liability for some consequences of negligent failure to interpret ultrasound tests properly).

We agree with the general rule that the Viccaros are entitled to recover the extraordinary medical and educational expenses and other extraordinary costs associated with caring for Adam. If the Viccaros prove that, when Adam attains his majority, they will remain liable for Adam’s support, they will be entitled to recover for the extraordinary expenses they will incur during Adam’s majority. In Massachusetts, a parent is liable for the support of an adult child if the child is [782]*782physically or mentally impaired and incapable of supporting himself. Feinberg v. Diamant, 378 Mass. 131, 134 (1979). The emotional distress the Viccaros sustain as a result of the defendant’s negligence and any physical harm caused by that emotional distress are also recoverable. See Burke v. Rivo, supra at 768.

The Viccaros’ claim for the loss of Adam’s society and companionship as a normal child lacks merit. The defendant is not responsible for the fact that Adam is afflicted with a substantial genetic disease. Although the defendant may be liable for certain damages because, had he not been negligent, according to the complaint, the Viccaros would not have conceived a child, the defendant cannot be liable for the Viccaros’ loss of the companionship of a normal child.

We summarize our conclusions as to the parents’ claims. Question 3, concerning the existence of a cause of action in the parents, we answer in the affirmative. There is one.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Pacheco v. United States
Washington Supreme Court, 2022
Tillman v. Goodpasture
485 P.3d 656 (Supreme Court of Kansas, 2021)
Tomlinson v. Metropolitan Pediatrics, LLC
366 P.3d 370 (Court of Appeals of Oregon, 2015)
Yanjun Li v. Davidson
33 Mass. L. Rptr. 394 (Massachusetts Superior Court, 2015)
Clark v. Children's Memorial Hosp.
2011 IL 108656 (Illinois Supreme Court, 2011)
Clark v. Children's Memorial Hospital
2011 IL 108656 (Illinois Supreme Court, 2011)
Laboratory Corp. of America v. Hood
911 A.2d 841 (Court of Appeals of Maryland, 2006)
Willis Ex Rel. Willis v. Wu
607 S.E.2d 63 (Supreme Court of South Carolina, 2004)
Grubbs Ex Rel. Grubbs v. Barbourville Family Health Center, P.S.C.
120 S.W.3d 682 (Kentucky Supreme Court, 2003)
Albert v. Bunnell
15 Mass. L. Rptr. 137 (Massachusetts Superior Court, 2002)
Kassama v. Magat
792 A.2d 1102 (Court of Appeals of Maryland, 2002)
Kassama v. Magat
767 A.2d 348 (Court of Special Appeals of Maryland, 2001)
Doolan v. IVF America (MA), Inc.
12 Mass. L. Rptr. 482 (Massachusetts Superior Court, 2000)
Bader v. Johnson
675 N.E.2d 1119 (Indiana Court of Appeals, 1997)
Liddington v. Burns
916 F. Supp. 1127 (W.D. Oklahoma, 1996)
Mohr v. Commonwealth
421 Mass. 147 (Massachusetts Supreme Judicial Court, 1995)
Greco v. United States
893 P.2d 345 (Nevada Supreme Court, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
551 N.E.2d 8, 406 Mass. 777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/viccaro-v-milunsky-mass-1990.