120 S.W.3d 682 (Ky. 2003), 2001-SC-0563, Grubbs v. Barbourville Family Health Center, P.S.C.

Docket Nº2001-SC-0563-DG, 2001-SC-0961-DG, 2001-SC-0571-DG, 2001-SC-0959-DG.
Citation120 S.W.3d 682
Opinion JudgeLAMBERT, Chief Justice .
Party NameCarlei Nacole GRUBBS By and Through Her Next Friend, Kimberly Suzane GRUBBS, et al, Movants/Cross Respondents, v. BARBOURVILLE FAMILY HEALTH CENTER, P.S.C., et al., Respondents/Cross Movants, and Nathan Robert Bogan By and Through His Next Friends, Gretchen Bogan and Daniel Bogan, et al., Movants/Cross Respondents, v. Altman & McGuire, P.S.C., et a
AttorneyGeoffrey R. Surtees, Francis J. Manion, Center for Law & Justice, New Hope, Robert C. Cetrulo, President, Northern Kentucky Right to Life, Covington, Counsel for Amici Curiae, Catholics United for Life, Northern Kentucky Right to Life, Kentucky Coalition for Life, and American Center for Law Just...
Judge PanelCOOPER, GRAVES, and JOHNSTONE, JJ., concur.
Case DateAugust 21, 2003
CourtUnited States State Supreme Court (Kentucky)

Page 682

120 S.W.3d 682 (Ky. 2003)

Carlei Nacole GRUBBS By and Through Her Next Friend, Kimberly Suzane GRUBBS, et al, Movants/Cross Respondents,

v.

BARBOURVILLE FAMILY HEALTH CENTER, P.S.C., et al., Respondents/Cross Movants,

and

Nathan Robert Bogan By and Through His Next Friends, Gretchen Bogan and Daniel Bogan, et al., Movants/Cross Respondents,

v.

Altman & McGuire, P.S.C., et al., Respondents/Cross Movants.

Nos. 2001-SC-0563-DG, 2001-SC-0961-DG, 2001-SC-0571-DG, 2001-SC-0959-DG.

Supreme Court of Kentucky

August 21, 2003

As Amended Aug. 27, 2003.

Rehearing Denied Dec. 18, 2003.

Page 683

[Copyrighted Material Omitted]

Page 684

Barbara Elliott Yeager, P.S.C., Barbourville, Counsel for Movants/Cross Respondents, Carlie Nacole Grubbs, by and Through Her Next Friend, Kimberly Suzane Grubbs; Suzane Grubbs; and Kenneth Charles Grubbs.

Mark E. Nichols, Melanie S. Marrs, Lynn, Fulkerson, Nichols & Kinkel, PLLC, Lexington, Counsel for Respondents/Cross Movants, Barbourville Family Health Center, P.S.C.; and B.R. Jung, M.D.

Wayne F. Collier, Kinkead & Stilz, P.S.C., Lexington, Counsel for Movants/ Cross Respondents, Nathan Robert Bogan by and Through His Next Friends, Gretchen Bogan and Daniel Bogan; Nathan Robert Bogan; Gretchen Bogan, and Daniel Bogan.

Margaret M. Pisacano, Lynn Rikhoff Kolokowsky, Jenkins Pisacano Robinson & Bailey, Lexington, Counsel for Respondents/Cross Movants, Altman, Mcguire & Pigg, P.S.C.; Altman, Mcguire & Mcclellan, P.S.C.; Altman, Mcguire, Pigg & Mcclellan, P.S.C.; Harry E. Altman; James R. Pigg; Rick A. Mcclellan, and Tom O. Mcguire.

George Edward Overbey, Jr., Monica Mary McFarlin, Kentucky Cabinet for Health Services, Department for Medicaid Services, Frankfort, Counsel for Kentucky Cabinet Health Services, Dept. for Medicaid Services.

Geoffrey R. Surtees, Francis J. Manion, Center for Law & Justice, New Hope, Robert C. Cetrulo, President, Northern Kentucky Right to Life, Covington, Counsel for Amici Curiae, Catholics United for Life, Northern Kentucky Right to Life, Kentucky Coalition for Life, and American Center for Law Justice-Midwest.

OPINION

LAMBERT, Chief Justice .

This Court granted discretionary review to consider two issues of first impression in this Commonwealth. The first is whether the parents of a child born with incurable and profound birth defects have a cause of action against a physician for failing to correctly diagnose and/or inform them of the fetal medical condition in time for an abortion. The second issue is whether the child has a claim for the same medical errors or omissions. 1 To decide these issues, we must focus on three areas of inquiry: (1) whether these are new causes of action requiring legislative authorization, or whether they are conventional negligence cases; (2) if we determine that they are traditional negligence actions, whether, as a matter of law, the elements of negligence can be proven; and (3) whether there are public policy considerations that affect the analysis. Both cases were decided upon summary judgment, and thus we are called upon to review the case to determine if it should proceed to trial. 2

THE GRUBBS CASE

In both cases, the plaintiffs allege that early diagnostic procedures revealed the birth defects, but that the physicians failed

Page 685

to accurately interpret and/or report the results. In late 1995, Kimberly Grubbs sought prenatal care from Dr. B.R. Jung at the Barbourville Family Health Center. On April 19, 1996, when Ms. Grubbs was approximately 24 weeks pregnant, Dr. Jung performed a prenatal screening ultrasound. Ms. Grubbs and her husband were informed that the results showed that the pregnancy was progressing normally. Approximately two months later, a second ultrasound was performed. Thereafter, Dr. Jung first informed the parents that the fetus might have birth defects. Dr. Jung referred Ms. Grubbs to the University of Kentucky Medical Center for further evaluation. On June 24, 1996, in the eighth month of pregnancy, a level II ultrasound was performed by Maternal/Fetal Medicine Specialist Dr. Douglas Milligan, and he determined that the fetus had spina bifida and hydrocephalus. On July 22, 1996, Carlei Nacole Grubbs was born with the diagnosed birth defects. She is also paralyzed from the waist down, has poor vision and misshapen kidneys.

The Grubbs's brought a negligence action against Dr. Jung and the Barbourville Family Health Center. The Grubbs's alleged that the defendants negligently failed to interpret the April 19, 1996 ultrasound correctly, that they failed to inform the Grubbs's that the ultrasound revealed the presence of profound birth defects, and that they failed to inform the Grubbs's of other prenatal diagnostic tests for spina bifida and hydrocephalus. The Grubbs's alleged that if they had been informed of the correct diagnosis at the time of the April ultrasound, they would have terminated the pregnancy; and therefore, the defendants' failure to timely notify them of the defects prevented them from making an informed decision to continue or terminate the pregnancy.

The defendants moved for summary judgment, claiming that Kentucky does not recognize causes of action for wrongful birth and wrongful life. The trial court ruled that it would follow the perceived majority rule and allow the wrongful birth action to proceed. The claim was not a new cause of action, the trial court stated, but a traditional medical negligence claim requiring the elements of duty, breach, causation and injury to be proven for the plaintiffs to prevail.

However, the trial court refused to recognize the wrongful life claim, stating that as a matter of law there was no injury, and thus the elements of negligence could not be proven. The trial court's reasoning was that the alleged injury was the child's life itself, and that it was against public policy to weigh a human life, albeit imperfect, against no life at all.

The defendants subsequently filed a second motion for summary judgment based upon the statute of limitations. The trial court granted this motion, stating that the proper time to file suit was within one year from discovery of the condition rather than one year from the child's birth. A final judgment of dismissal was entered.

THE BOGAN CASE

The facts of the Bogan case are similar. In late 1992, Gretchen Bogan learned that she was pregnant and sought prenatal care from the obstetricians of Altman, McGuire & Pigg, P.S.C., in Pike County. In December 1992, when the fetal gestational age was estimated to be twenty-two weeks, a pre-natal screening ultrasound was performed by an ultrasound technician. According to Dr. Altman's deposition, the ultrasound was administered to "confirm the dates and rule out obvious anomalies." Dr. Altman interpreted the ultrasound as normal and so advised Ms. Bogan. On March 31, 1993, Nathan Robert Bogan was born several weeks prematurely by caesarean section. The caesarian was necessary because a cyst had enlarged Nathan's

Page 686

head. As the cyst occupied most of his cranium, he has no eyes and no brain, although he has an underdeveloped brain stem that supports minimal autonomic functioning. He has a cleft palate and cannot speak. He must be strapped into a wheelchair to sit, and he has no control of his bowels. The Bogans point out in their brief that Nathan "cannot do anything but exist."

In their complaint, the Bogans maintained that the defect was visible in the ultrasound films. They sued the defendants, alleging numerous theories of recovery including medical malpractice, wrongful birth, and wrongful life. The gravamen of the complaint was that the failure to interpret the ultrasound correctly and to perform an amniocentesis test prevented the Bogans from making an informed decision about continuation or termination of the pregnancy. The Kentucky Cabinet for Health Services, Department for Medicaid Services, intervened to recover sums it had paid on behalf of Nathan Bogan. The obstetricians sought summary judgment, and the trial court held that the Bogans could not recover for wrongful life or wrongful birth. However, the trial court allowed the Bogans' claim for damages for pain and suffering and permanent scarring suffered in connection with the caesarean delivery to proceed. That claim remains pending in the Pike Circuit Court. Otherwise, the summary judgment was made final and this appeal proceeded.

In summary, both trial courts denied the child's claim. As to the parents' claims, the trial court in the Bogan case held that limited damages could be awarded to the mother due to the caesarian. The trial court in the Grubbs case authorized the parents' claim to the full extent of damages (although the case was ultimately dismissed upon statute of limitation grounds).

THE COURT OF APPEALS

The Court of Appeals consolidated the two cases to consider whether Kentucky law recognizes so-called 'birth-related torts,' i.e., wrongful conception or pregnancy, wrongful birth, and wrongful life. As a starting point, the Court of Appeals considered this Court's decision in Schork v. Huber, 3 a medical malpractice case involving a couple who had a healthy child despite having undergone a surgical sterilization procedure. In Schork, this Court refused to recognize the wrongful conception claim, stating that "parents cannot recover damages based upon the costs of raising a healthy but unexpected child from a doctor following an unsuccessful sterilization procedure." 4 Critical to the Court's holding was that damages were highly speculative, as any recovery would be offset by the benefit to the parents of having a normal, healthy child. The Court concluded that causes of action for not only wrongful conception but all birth-related torts were matters within the exclusive purview of the legislature. 5

The Court of Appeals declined to follow the Schork majority, considering the conclusion...

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57 practice notes
  • Pauly v. Chang, 121115 KYCA, 2014-CA-000404-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • 11 Diciembre 2015
    ...of a competent practitioner of the same class and under similar circumstances." Grubbs v. Barbourville Family Health Center, P.S.C, 120 S.W.3d 682, 687 (Ky. 2003). In a medical negligence case, the plaintiff is required to provide expert testimony to prove that the treatment at issue f......
  • 802 N.E.2d 723 (Ohio App. 1 Dist. 2003), C-030034, Schirmer v. Mt. Auburn Obstetrics & Gynecologic Assoc.
    • United States
    • Ohio United States Court of Appeals (Ohio)
    • 30 Diciembre 2003
    ...birth). At least eight states have judicially barred these claims. See Grubbs v. Barbourville Family Health Ctr., P.S.C. (Ky.2003), 120 S.W.3d 682 (Kentucky Supreme Court noting that the decision is not yet final and is not to be cited as authority in Kentucky). {¶ 19} At least five states ......
  • Tillman v. Goodpasture, 043021 KSSC, 117, 439
    • United States
    • Kansas United States State Supreme Court of Kansas
    • 30 Abril 2021
    ...boy rather than a girl? What if she did not want a child with Down's syndrome? See Grubbs v. Barbourville Family Health Etc., 120 S.W.3d 682, 690 (Ky. 2003) ("'When will parents be allowed to decide that their child is so "defective" that given a chance th......
  • Brown v. Trover, 010816 KYCA, 2012-CA-001880-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • 8 Enero 2016
    ...restraint in recognizing such new and complex causes of action." Grubbs ex rel. Grubbs v. Barbourville Family Health Center, P.S.C., 120 S.W.3d 682, 691 (Ky. 2003). Whether to recognize the tort of negligent credentialing, we believe, is a decision better left to our Supreme Court. In ......
  • Request a trial to view additional results
56 cases
  • Pauly v. Chang, 121115 KYCA, 2014-CA-000404-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • 11 Diciembre 2015
    ...of a competent practitioner of the same class and under similar circumstances." Grubbs v. Barbourville Family Health Center, P.S.C, 120 S.W.3d 682, 687 (Ky. 2003). In a medical negligence case, the plaintiff is required to provide expert testimony to prove that the treatment at issue f......
  • 802 N.E.2d 723 (Ohio App. 1 Dist. 2003), C-030034, Schirmer v. Mt. Auburn Obstetrics & Gynecologic Assoc.
    • United States
    • Ohio United States Court of Appeals (Ohio)
    • 30 Diciembre 2003
    ...birth). At least eight states have judicially barred these claims. See Grubbs v. Barbourville Family Health Ctr., P.S.C. (Ky.2003), 120 S.W.3d 682 (Kentucky Supreme Court noting that the decision is not yet final and is not to be cited as authority in Kentucky). {¶ 19} At least five states ......
  • Tillman v. Goodpasture, 043021 KSSC, 117, 439
    • United States
    • Kansas United States State Supreme Court of Kansas
    • 30 Abril 2021
    ...boy rather than a girl? What if she did not want a child with Down's syndrome? See Grubbs v. Barbourville Family Health Etc., 120 S.W.3d 682, 690 (Ky. 2003) ("'When will parents be allowed to decide that their child is so "defective" that given a chance th......
  • Brown v. Trover, 010816 KYCA, 2012-CA-001880-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • 8 Enero 2016
    ...restraint in recognizing such new and complex causes of action." Grubbs ex rel. Grubbs v. Barbourville Family Health Center, P.S.C., 120 S.W.3d 682, 691 (Ky. 2003). Whether to recognize the tort of negligent credentialing, we believe, is a decision better left to our Supreme Court. In ......
  • Request a trial to view additional results
1 books & journal articles
  • What's Unconstitutional About Wrongful Life Claims? Ask Jane Roe ....
    • United States
    • Defense Counsel Journal Vol. 87 Nbr. 3, July 2020
    • 1 Julio 2020
    ...Inc., 575 N.E.2d 630 (Ind. 1991); Bruggeman v. Schimke, 718 P.2d 635 (Kan. 1986); Grubbs v. Barbourville Family Health Ctr., P.S.C., 120 S.W.3d 682, 690 (Ky. 2003); Pitre v. Opelousas Gen. Hosp., 517 So. 2d 1019 (La. Ct. App. 1987), aff'd in part and rev'd in part on other grounds, 530 So. ......

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