Harbeson v. Parke-Davis, Inc.

• Citation: 98 Wn.2d 460,656 P.2d 483
• Decision Date: 06 January 1983
• Docket Number: INC,PARKE-DAVI,No. 48331-1,48331-1
• Parties: Leonard Harbeson, Guardian ad Litem for Christine Harbeson and Elizabeth Harbeson, Minors, Plaintiffs, v., and the United States of America, Defendants. Supreme Court of Washington, En Banc
• Court: United States State Supreme Court of Washington

Page 460

98 Wn.2d 460

656 P.2d 483

Certification From the United States District Court for the Western District of Washington in Leonard HARBESON and Jean Harbeson, husband and wife Leonard Harbeson, Guardian ad Litem for Christine Harbeson and Elizabeth Harbeson, Minors Plaintiffs, v. PARKE-DAVIS, INC., and the United States of America, Defendants.

No. 48331-1.

Supreme Court of Washington En Banc.

Jan. 6, 1983.

Mann, King, Bingham, Scraggin, Manger & Pemberton, Samuel H. Pemberton, Jr., Tacoma, for plaintiffs.

M. Faith Burton, Torts Branch Civ. Div., Dept. of Justice, Washington, D.C., for defendants.

Bryan P. Harnetiaux, Spokane, Winston & Cashatt, Robert Whaley, Spokane, for amicus curiae Washington Trial Lawyers Assn.

Williams, Lanza, Kastner & Gibbs, John Rosendahl, Jeffrey P. Smith, Washington State Medical Assn., Seattle, for amicus curiae Washington Medical Assn PEARSON, Justice.

This case requires us to decide whether to recognize two new causes of action: "wrongful birth" and "wrongful life." We hold that, subject to the limitations set forth in this opinion, such actions may be brought in this state.

Plaintiffs brought against the United States an action for medical malpractice and failure to inform of the material risks of treatment. The action was based upon medical care that plaintiff Jean Harbeson received from physicians employed by the United States at Madigan Army Medical Center in 1972 and 1973. The case was tried during the week of November 30, 1981, in the United States District Court for the Western District of Washington, pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2674-2680, § 1346(b), and § 2402 (1976). After hearing all the evidence and before giving judgment, the District Court, on its own motion, certified to this court questions of law pursuant to RCW 2.60.020 and RAP 16.16. The District Court formulated from the evidence presented at trial a number of findings of fact and conclusions of law. These findings and conclusions comprise the record upon which we must resolve the issues certified.

The District Court found as follows. Plaintiff Leonard Harbeson has at all material times been a member of the United States Air Force. In 1970, while Mr. Harbeson was stationed at Malstrom Air Force Base, his wife Jean conceived their first child. In December 1970, Mrs. Harbeson learned, after suffering a grand mal seizure, that she was an epileptic. To control Mrs. Harbeson's seizures, physicians at the Air Force Base prescribed Dilantin, an anticonvulsant drug, which was the first choice of doctors in the treatment of epilepsy. Mrs. Harbeson took Dilantin during the remainder of her pregnancy and in March 1971 gave birth to Michael, a healthy and intelligent child.

After Michael's birth, Mr. Harbeson was transferred to McChord Air Force Base, near Tacoma. The medical facility serving the base was Madigan Army Medical Center. In May 1972, Mrs. Harbeson went to Madigan for evaluation Elizabeth and Christine are the minor plaintiffs in this action, and are represented by Leonard Harbeson, as guardian ad litem. Elizabeth and Christine have been diagnosed as suffering from "fetal hydantoin syndrome." They suffer from mild to moderate growth deficiencies, mild to moderate developmental retardation, wide-set eyes, lateral ptosis (drooping eyelids), hypoplasia of the fingers, small nails, low-set hairline, broad nasal ridge, and other physical and developmental defects. Had Mr. and Mrs. Harbeson been informed of the potential birth defects associated with the use of Dilantin during pregnancy, they would not have had any other children.

                and treatment of her epilepsy.   A neurologist at Madigan prescribed Dilantin to control her seizures.   Between November 1972 and July 1973, the Harbesons informed three doctors at Madigan that they were considering having other children, and inquired about the risks of Mrs. Harbeson's taking Dilantin during pregnancy.   Each of the three doctors responded that Dilantin could cause cleft palate and temporary hirsutism.   None of the doctors conducted literature searches or consulted other sources for specific information regarding the correlation between Dilantin and birth defects.   The Harbesons relied on the assurances of the Madigan doctors and thereafter Mrs. Harbeson became pregnant twice, giving birth to Elizabeth in April 1974, and Christine in May 1975.   Throughout these pregnancies, Mrs. Harbeson continued to take Dilantin as prescribed by the Madigan doctors
                

The District Court's conclusions of law include the following.

4. Dilantin was a proximate cause of the defects and anomalies suffered by Elizabeth and Christine Harbeson.

5. The physicians at Madigan were the agents of the Defendant United States of America, and said Defendant is responsible for the acts and omissions of the Madigan physicians.

6. Plaintiff, Leonard Harbeson, is the duly appointed guardian ad litem for the minor plaintiffs herein, Elizabeth and Christine Harbeson, and is authorized to bring 7. The physicians at Madigan failed to conduct a literature search or to consult other sources in regard to the effects of Dilantin during pregnancy, even though the plaintiffs Leonard and Jean Harbeson specifically asked all three Madigan physicians of possible birth defects associated with the mother's consumption of Dilantin during pregnancy. Said acts of the Madigan physicians:

the present action on their behalf.

a. breached the standard of care for the average physician acting under the same or similar circumstances, and the physicians were thereby negligent;

b. were not reasonably prudent, and therefore, were neglient.

8. An adequate literature search, or consulting other sources, would have yielded such information of material risks associated with Dilantin in pregnancy that reasonably prudent persons in the position of the Harbesons would attach significance to such risks in deciding whether to have further children.

9. Each of the four Harbeson Plaintiffs has sustained permanent and severe damages and injuries past, present and future, as a direct and proximate result of the negligence of the Madigan physicians.

10. Plaintiffs are entitled to recover damages from the Defendant United States of America.

The District Court has certified to us the following issues:

1. May Plaintiff parents Leonard and Jean Harbeson maintain a "wrongful birth" action?

2. If the answer to question number one is "yes",

a. Are the claims of Leonard and Jean Harbeson controlled by RCW 4.24.010 and/or RCW 4.24.290?

b. May Leonard and Jean Harbeson recover damages?

3. May Plaintiff children Elizabeth and Christine Harbeson maintain a "wrongful life" claim?

4. If the answer to question number three is "yes",

a. Are the claims of Elizabeth and Christine Harbeson controlled by RCW 4.24.290?

b. May Elizabeth and Christine Harbeson recover damages?

We will consider in turn wrongful birth and wrongful life actions.

WRONGFUL BIRTH

The epithet wrongful birth has been used to describe several fundamentally different types of action. See Annot., Tort Liability For Wrongfully Causing One To Be Born, 83 A.L.R.3d 15 (1978). Many of the actions once entitled wrongful birth are now referred to as wrongful conception and wrongful pregnancy actions. Phillips v. United States, 508 F.Supp. 544, 545 n. 1 (D.S.C.1981); Rogers, Wrongful Life and Wrongful Birth: Medical Malpractice In Genetic Counseling and Prenatal Testing, 33 S.C.L.Rev. 713, 739-41 (1982). A recent definition of a wrongful birth action is an action brought by parents against

a physician [who] failed to inform [them] of the increased possibility that the mother would give birth to a child suffering from birth defects ... [thereby precluding] an informed decision about whether to have the child.

(Footnotes omitted.) Comment, Berman v. Allan, 8 Hofstra L.Rev. 257, 258 (1979), cited in Phillips, at 545 n. 1.

Such an action was recognized by the New Jersey Supreme Court in Schroeder v. Perkel, 87 N.J. 53, 432 A.2d 834 (1981). Mr. and Mrs. Schroeder had two children, both of whom suffered from cystic fibrosis, a fatal genetic disorder. It was not until Mrs. Schroeder was 8 months pregnant with their second child that the Schroeders learned they were carriers of the recessive gene which causes the disorder. They claimed that defendant pediatricians were negligent in failing to make an earlier diagnosis of cystic fibrosis in their first child. Had they known earlier of the condition, the Schroeders would have either avoided the conception of their second child, or terminated the pregnancy. The basis of their claim, therefore, was that "they were deprived of an informed choice of whether to assume the risk of a second child." 87 N.J. at 57, 432 A.2d 834. The New Jersey Supreme Court recognized the cause of action and held that the parents could recover extraordinary medical expenses of raising the second child.

Schroeder is a paradigm wrongful birth case. The parents Although the definition we refer to above comprehends the Schroeder action, it excludes the cause of action recognized in a similar case, Speck v. Finegold, 497 Pa. 77, 439 A.2d 110 (1981). Mr. Speck suffered from neurofibromatosis, a disorder caused by a genetic defect. After having two children who suffered from the disorder, Mr. Speck decided to undergo a vasectomy. The vasectomy was unsuccessful, and Mrs. Speck became pregnant. Mr. and Mrs. Speck decided to terminate the pregnancy. The abortion was unsuccessful, and Mrs. Speck gave birth to a daughter who suffered from neurofibromatosis.

                brought an action for the birth of a defective child.   They claimed that defendant physicians had breached a duty to inform them of the risk of the child's being born defective.   They claimed that had they known of this risk they would have prevented the birth of the child by contraception or abortion.   They claimed that defendants' failure to inform was a proximate

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