Atlanta Obstetrics & Gynecology Group v. Abelson

• Citation: 398 S.E.2d 557,260 Ga. 711
• Decision Date: 05 December 1990
• Docket Number: No. S90G1000,S90G1000
• Court: Supreme Court of Georgia
• Parties: ATLANTA OBSTETRICS & GYNECOLOGY GROUP et al. v. ABELSON et al.

Page 557

398 S.E.2d 557

260 Ga. 711

ATLANTA OBSTETRICS & GYNECOLOGY GROUP et al. v. ABELSON et al.

No. S90G1000.

Supreme Court of Georgia.

Dec. 5, 1990.

Reconsideration Denied Dec. 20, 1990.

Judson Graves, Bryan A. Vroon and Holly B. Barnett, Alston & Bird, Robert P Constantine, Jr., Atlanta, for Atlanta Obstetrics & Gynecology Group et al.

Don C. Keenan, The Keenan Law Firm, David S. Bills, Atlanta, Abelson et al.

Taylor W. Jones, Myles E. Eastwood, Jones, Brown & Brennan, Atlanta, Reid W. Kennedy, Reid G. Kennedy, Kennedy & Kennedy, Marietta, William Q. Bird, Richard L. Greene, Medical Association of Georgia, Daryll Love, Allen S. Willingham, and Robert P. Monyak, Love & Willingham, Thomas W. Malone, Foy R. Devine, Williams & Henry, Philip C. Henry, Middleton & Anderson, Robert H. Benfield, Jr., Elizabeth J. Appley, Atlanta, for amici curiae.

FLETCHER, Justice.

After their infant daughter, Brittany, was born with a genetic chromosomal disorder called Down's Syndrome, Mr. and Mrs. Abelson (hereinafter "plaintiffs") brought suit against Dr. William Tippins and his associates, Atlanta Obstetrics & Gynecology Group, (hereinafter "defendants") who provided Mrs. Abelson with postconception obstetrical care and treatment.

Suit was filed by plaintiffs, individually and as representatives of their infant daughter, alleging that defendants failed to properly counsel Mrs. Abelson, who was 37 years of age at the time of Brittany's birth, concerning the risks of her pregnancy associated with her increased maternal age and failed to inform her concerning the availability of a postconception diagnostic test called amniocentesis. ¹ Defendants deny these allegations and assert that full information was given to plaintiffs.

Plaintiffs, individually, sought general and special damages for expenses related to: pregnancy and delivery; pain and suffering; mental and emotional anguish; lost wages; loss of consortium; and the "reasonable and necessary costs of rearing, educating and otherwise providing for Brittany including medical expenses."

In their capacity as representatives of their infant daughter, plaintiffs sought damages for Brittany's pain and suffering; her lost capacity to earn wages; as well as "reasonable and necessary costs of rearing, educating and otherwise providing for herself including medical expenses."

The defendants filed, among other things, a motion to dismiss the complaint, as well as a motion in limine to limit the scope of recoverable damages. Looking to Fulton-DeKalb Hosp. Auth. v. Graves, 252 Ga. 441, 314 S.E.2d 653 (1984), for guidance, the trial court granted the defendants' motion to dismiss as to that portion of the complaint filed by plaintiffs in their capacity as the legal representatives of Brittany, on the ground that a wrongful life action is not maintainable under Georgia law. The trial court, however, denied the defendants' motion to dismiss as to that portion of the complaint filed by plaintiffs in their individual capacities, on the ground that a wrongful birth action is maintainable under Georgia law.

In ruling on the motion in limine, the trial court held that plaintiffs may recover special and general expenses relating to pregnancy and delivery, as authorized by Graves. The trial court held that plaintiffs' claim for damages for their own mental pain and suffering was barred by the "impact rule" which requires that "there must have been actual bodily contact with plaintiff[s] as a result of defendant[s'] conduct for a claim for emotional distress to lie." Ob-Gyn Assoc. v. Littleton, 259 Ga. 663, 665, 386 S.E.2d 146 (1989).

Citing Graves and wrongful birth cases decided in other jurisdictions, the trial court held that plaintiffs may recover extraordinary child-care expenses necessitated by Brittany's special condition and, notwithstanding the general rule that a parent's legal duty to support a child terminates when the child reaches the age of majority, the trial court also held that these extraordinary expenses may be recovered beyond her age of majority if plaintiffs can prove that Brittany will be unable to maintain herself and is likely to become a public charge. ²

The trial court declined to adopt defendants' argument that plaintiffs' recovery of damages for extraordinary child-care expenses should be offset by the emotional benefits of parenthood.

On interlocutory appeal of the issues involving the "wrongful birth" action, the Court of Appeals also held that, under the authority of Graves and wrongful birth cases decided in other jurisdictions, such an action is indeed maintainable under Georgia law. Atlanta Obstetrics & Gynecology Group v. Abelson, 195 Ga.App. 274, 274-278(1), 392 S.E.2d 916 (1990). The Court of Appeals further agreed with the trial court that extraordinary child-care expenses are recoverable by plaintiffs in a wrongful birth action. Id. at 278-279(2), 392 S.E.2d 916.

The Court of Appeals, however, reversed the trial court's ruling that would have potentially allowed a recovery of extraordinary child-care expenses for Brittany's entire life. The Court of Appeals fashioned a novel set of criteria under which plaintiffs in a "wrongful birth" action may recover these extraordinary expenses "to the extent that the life expectancy of the child coincides with the life expectancies of [the plaintiffs]." 195 Ga.App. at 279(3), 392 S.E.2d 916. In so holding, the Court of Appeals agreed with the trial court that the plaintiffs here may recover post-majority child-care expenses even though the reasoning used by the Court of Appeals differed from that of the trial court. ³

The Court of Appeals also affirmed the rulings of the trial court that the "impact rule" barred the "wrongful birth" plaintiffs' recovery of damages for their own mental pain and suffering and that the extraordinary child-care expenses should not be offset under the "emotional benefits" rule. Id. at 280-281(7) and at 279-280(4, 5), 392 S.E.2d 916.

At the outset, it is necessary to distinguish between a "wrongful birth" action, a "wrongful life" action and a "wrongful pregnancy" action. A "wrongful pregnancy" action is typically brought by the parents of a child whose conception or birth is due to a physician's negligent performance of a sterilization or of an abortion. In Graves, 252 Ga. at 443, 314 S.E.2d 653 (1984), this court aligned itself with the vast majority of other jurisdictions in holding that such an action may be brought as "no more than a species of malpractice." The recovery of the plaintiff/parents in Graves, however, was limited to the general and special damages incurred during the pregnancy of the mother and the delivery of the child. The lion's share of damages sought by the plaintiff/parents, those related to the ordinary cost of raising the child, were not allowed. As we said in Graves: "[i]n evaluating a claim for the cost of rearing a child we must consider the value which our society places upon human life in general and on the lives of children in particular. We instinctively recoil from the notion that parents may suffer a compensable injury on the birth of a child." Graves, 252 Ga. at 443, 314 S.E.2d 653.

"Wrongful birth" and "wrongful life" actions are both species of malpractice claims wherein relief is sought for allegedly negligent or intentional treatment or advice that has deprived the parents of the opportunity to abort a fetus and thereby avoid the birth of an impaired child. An action for "wrongful life" is brought on behalf of an impaired child and alleges basically that, but for the treatment or advice provided by the defendant to its parents, the child would never have been born. An action for "wrongful birth" is brought by the parents of an impaired child and alleges basically that, but for the treatment or advice provided by the defendant, the parents would have aborted the fetus, thereby preventing the birth of the child.

Virtually all courts that have been presented with the question of whether or not to recognize a "wrongful life" action have answered in the negative. ⁴ However, in answer to the question of whether or not to recognize a "wrongful birth" action, the majority of courts that have addressed the question have answered in the affirmative. See generally, Annotation, Tort Liability for Wrongfully Causing One to Be Born, 83 A.L.R.3d 15 (1978). In spite of the widespread recognition and, in fact, because of that recognition and the confusion which has followed in its wake, we hold that "wrongful birth" actions shall not be recognized in Georgia absent a clear mandate for such recognition by the legislature. ⁵

An analysis of traditional tort law principles, even as applied in an age of ever advancing medical technology, simply does not authorize a finding that a physician, who has provided postconception prenatal care to an expectant mother, should be held liable, even to a limited extent, for an impairment which the child unquestionably inherited from her parents and an impairment which was already in existence when the parents first came into contact with the physician.

The first two prongs of the four pronged traditional tort analysis ⁶, those of duty and breach, do not present so great a problem in that a physician has been recognized to have a generalized duty to impart relevant information to a patient concerning his or her medical condition, see Goldberg v. Ruskin, 128 Ill.App.3d 1029, 84 Ill.Dec. 1, 8, 471 N.E.2d 530, 537(7) (Ill.App. 1st Dist.1984); 61 Am.Jur.2d 358, Physicians, Surgeons, and Other Healers § 229 (1981), and a woman has been recognized, under Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), to have a constitutional right to "make an informed decision regarding the procreative options available to her." Smith v. Cote, 128 N.H. 231, 513 A.2d 341, 346(3) (1986).

Where the traditional tort analysis begins to break down is with the third prong, that of injury. In order to satisfy...