Atlanta Obstetrics & Gynecology Group, P.A. v. Abelson

• Decision Date: 16 March 1990
• Docket Number: A89A2017,Nos. A89A2016,s. A89A2016
• Citation: 392 S.E.2d 916,195 Ga.App. 274
• Parties: ATLANTA OBSTETRICS & GYNECOLOGY GROUP, P.A. et al. v. ABELSON et al. ABELSON et al. v. ATLANTA OBSTETRICS & GYNECOLOGY GROUP, P.A. et al.
• Court: Georgia Court of Appeals

Page 916

392 S.E.2d 916

195 Ga.App. 274

ATLANTA OBSTETRICS & GYNECOLOGY GROUP, P.A. et al. v. ABELSON et al.

ABELSON et al. v. ATLANTA OBSTETRICS & GYNECOLOGY GROUP, P.A. et al.

Nos. A89A2016, A89A2017.

Court of Appeals of Georgia.

March 16, 1990.

Rehearing Denied March 30, 1990.

Certiorari Granted in Case No. A89A2016, May 9, 1990.

Alston & Bird, Judson Graves, Bryan A. Vroon, Atlanta, for appellants.

Keenan Law Firm, Don C. Keenan, Savannah, David S. Bills, Atlanta, for appellees.

Jones, Brown & Brennan, Taylor W. Jones, Myles E. Eastwood, Atlanta, amici curiae.

CARLEY, Chief Judge.

The relevant facts are as follows: In March of 1985, the then 36-year-old Mrs. Jon Abelson and her husband (hereinafter referred to as Plaintiffs) discovered that Mrs. Abelson was pregnant. Throughout the pregnancy, prenatal care was provided by Dr. William Tippins and Atlanta Obstetrics & Gynecology Group, P.A. (hereinafter referred to as Defendants). In October of 1985, Plaintiffs' daughter was born with Down's Syndrome. After the birth of their daughter, Plaintiffs filed this medical malpractice action, alleging that Defendants had breached the applicable standard of care by failing to provide advice concerning the increased risks of genetic abnormalities associated with higher maternal age, and by failing to have performed an amniocentesis so as to detect whether the unborn child had Down's Syndrome. The complaint further alleged that, if an amniocentesis had been performed which showed the unborn child's Down's Syndrome, plaintiffs would have opted for an abortion.

After answering, Defendants moved to dismiss the complaint for failure to state a claim. The trial court denied this motion. Thereafter, in the context of Defendants' motion in limine, the trial court made various rulings as to the damages that Plaintiffs would be entitled to seek. The trial court certified for immediate review its order on the motion in limine and Defendants applied for an interlocutory appeal. The application was granted and, in Case No. A89A2016, Defendants appeal from the trial court's order on their motion in limine. In Case No. A89A2017, Plaintiffs cross-appeal.

CASE NO. A89A2016

1. Defendants enumerate as error the denial of their motion to dismiss the complaint for failure to state a claim.

The complaint purports to state a claim for "wrongful birth." As distinguished from a "wrongful pregnancy" claim, a "wrongful birth" claim is asserted by plaintiffs who wished to become parents, but who were not apprised that their child would be born with a foreseeable birth defect or other congenital ailment. See Fulton-DeKalb Hosp. Auth. v. Graves, 252 Ga. 441, 314 S.E.2d 653 (1984). In those states wherein the legislature has not acted, "most courts ... have been more receptive to the parents' wrongful birth claims, after the Supreme Court's legalization of abortion in 1973, and there is by now quite general agreement that the parents should be permitted to recover at least their pecuniary losses...." Prosser & Keeton on Torts, § 55, p. 371 (5th ed. 1984). The judicial recognition of the viability of a "wrongful birth" claim has not, however, been universal. See Azzolino v. Dingfelder, 315 N.C. 103, 337 S.E.2d 528 (1985); Wilson v. Kuenzi, 751 S.W.2d 741 (Mo.1988). Georgia has previously recognized the viability of a "wrongful pregnancy" claim. Fulton-DeKalb Hosp. Auth. v. Graves, supra. However, neither the legislature nor the appellate courts of this State has previously addressed the issue of the viability of a "wrongful birth" claim. Accordingly, the determination of whether the trial court correctly denied Defendants' motion to dismiss the complaint for failure to state a claim presents an issue of first impression, and we must decide whether or not Georgia subscribes to the "general agreement" that a "wrongful birth" claim is viable.

In addressing the issue of the viability of a "wrongful pregnancy" claim, our Supreme Court noted that "[t]he United States Supreme Court ... has recognized that a woman has the right to plan the size of her family.... It has been suggested that recognition of a ['wrongful pregnancy'] cause of action would open the door to fraudulent claims, that the injury is remote from the negligence, that recovery would be out of proportion to the defendant's culpability. But these same arguments have been made in connection with countless other tort claims, and the problems presented have been dealt with in the course of traditional tort litigation. [Cit.]" Fulton-DeKalb Hosp. Auth. v. Graves, supra 252 Ga. at 442-443 (1), 314 S.E.2d 653. In addressing the issue of the viability of a "wrongful birth" claim, at least one court has suggested that the problems presented by such a claim cannot be dealt with in the course of traditional tort litigation. See Azzolino v. Dingfelder, supra. Therefore, we perceive the resolution of the issue to be dependent upon whether a "wrongful birth" claim can be said to be within the parameters of traditional Georgia tort principles, as is true with a "wrongful pregnancy" claim, or whether a "wrongful birth" claim, unlike a "wrongful pregnancy" claim, falls outside the parameters of those traditional principles.

The traditional tort elements of duty and breach present no difficulties. As in any malpractice action, the standard of care owed by a physician to prospective parents and a deviation therefrom must be established by medical experts. Accordingly recognizing the viability of a "wrongful birth" claim will "not require a physician to identify and disclose every chance, no matter how remote, of the occurrence of every possible birth 'defect,' no matter how insignificant. [Cit.]" Smith v. Cote, 128 N.H. 231, 513 A.2d 341, 347 (1986). It is presumed that medical services have been performed in an ordinarily skillful manner but, if expert medical testimony can be adduced to establish that it is a deviation from the standard of care and skill ordinarily employed by the medical profession generally to fail to test for, diagnose, and disclose to prospective parents the possible existence of a specific birth defect in their child, then malpractice as defined by OCGA § 51-1-27 would have been shown. Indeed, a refusal to recognize the existence of an actionable breach of a physician's duty in the face of such medical evidence would itself constitute a deviation from traditional tort principles. Any further contention that the instant "wrongful birth" claim is premised upon Defendants' alleged breach of a duty merely to secure the Plaintiffs' informed consent, which duty was not imposed upon physicians under Georgia law at the times relevant to this case, is without merit. Defendants' non-disclosure "did not relate to any affirmative treatment, but rather to the condition of pregnancy itself." Karlsons v. Guerinot, 57 A.D.2d 73, 394 N.Y.S.2d 933, 939 (N.Y.App.Div.1977). Had Defendants actually performed an amniocentesis without disclosing to Plaintiffs the specific risks, if any, of undergoing that procedure, that non-disclosure might have constituted Defendants' non-actionable failure to have secured Plaintiffs' informed consent. However, Defendants' failure to have disclosed the risks of not undergoing amniocentesis as an element of prenatal care afforded to Plaintiffs, if otherwise shown to have been negligent under the existing circumstances, would constitute actionable malpractice under OCGA § 51-1-27.

Defendants urge that a "wrongful birth" claim is outside the parameters of traditional tort principles because the birth of a child is not a legally cognizable "injury." See Azzolino v. Dingfelder, supra. The birth of Plaintiffs' daughter is clearly not, in and of itself, an injury to them. See Fulton-DeKalb Hosp. Auth. v. Graves, supra. Indeed, it would be anomalous to hold that the birth of a child would not constitute an injury to parents who had undertaken to prevent conception, but that it would constitute an injury to parents who were desirous of having a child. However, the mother in Graves could allege that she had been economically injured by the unplanned birth only to the extent of incurring those ordinary child-raising expenses which would be incurred by any parent. Plaintiffs, on the other hand, allege no injury by virtue of incurring the ordinary expenses of rearing their planned child but, rather, an economic injury to the extent of incurring the extraordinary child-rearing expenses resulting from her foreseeable birth defect. Thus, unlike the mother in Graves, Plaintiffs do not allege that the birth of their child is, in and of itself, an economic injury to them. They "allege, at a minimum, that but for [Defendants'] negligence they would not be burdened by extraordinary medical and education expenses associated with the treatment of [Down's Syndrome]. That monetary burden is no different from medical or rehabilitation expenses associated with any personal injury, and, contrary to Azzolino's suggestion, we need not find that 'life, even life with severe defects,' constitutes a legal injury in order to recognize [Plaintiffs'] claim for relief." Lininger v. Eisenbaum, 764 P.2d 1202, 1206 (Colo.1988).

Defendants further urge that the traditional element of causation cannot be proven because it cannot be shown that they either caused or prevented the cure of Down's Syndrome in Plaintiffs' child. See Wilson v. Kuenzi, supra. However, it is not alleged that Defendants negligently caused Down's Syndrome in Plaintiffs' child. It is alleged that Defendants negligently failed to disclose to Plaintiffs the risks of not undergoing amniocentesis so as to diagnose Down's Syndrome in the unborn child and that, but for that negligent failure, Plaintiffs would not have been injured by incurring the extraordinary expenses of rearing a Down's Syndrome child. It is true that, notwithstanding Defendants' alleged negligence, Plaintiffs would still have incurred those...