Azzolino v. Dingfelder

• Decision Date: 20 November 1984
• Docket Number: No. 8315SC1292,8315SC1292
• Citation: 71 N.C.App. 289,322 S.E.2d 567
• Court: North Carolina Court of Appeals
• Parties: Jane A. AZZOLINO; Louis Azzolino; Michael Lawrence Azzolino, By his General Guardians, Jane A. Azzolino and Louis Azzolino; Regina Mary Gallagher, by her General Guardian, Jane A. Azzolino; and David John Azzolino, by his General Guardian, Louis Azzolino, Plaintiffs, v. James R. DINGFELDER; Jean Dowdy; and Orange-Chatham Comprehensive Health Services, Inc., d/b/a Haywood-Moncure Community Health Center, Defendants.

Page 567

322 S.E.2d 567

71 N.C.App. 289

Jane A. AZZOLINO; Louis Azzolino; Michael Lawrence

Azzolino, By his General Guardians, Jane A. Azzolino and

Louis Azzolino; Regina Mary Gallagher, by her General

Guardian, Jane A. Azzolino; and David John Azzolino, by his

General Guardian, Louis Azzolino, Plaintiffs, v. James R. DINGFELDER; Jean Dowdy; and Orange-Chatham

Comprehensive Health Services, Inc., d/b/a

Haywood-Moncure Community Health Center,

Defendants.

No. 8315SC1292.

Court of Appeals of North Carolina.

Nov. 20, 1984.

Tim Hubbard, Pittsboro, for plaintiffs-appellants.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by C. Ernest Simons, Jr. and Steven M. Sartorio, Raleigh, and Coleman, Bernholz, Dickerson, Bernholz, Gledhill & Hargrave by Roger B. Bernholz, Chapel Hill, for defendants-appellees.

HILL, Judge.

I

The threshold question we must address is whether the appeals taken by Michael Azzolino and his siblings were timely made. Defendants contend the court's orders of 14 December 1982 dismissing the children's claims constituted a final adjudication of those claims because they were separate and distinct from the claims of the parents; that the court's orders affected a substantial right of the parties; and therefore an appeal from those orders should have been taken within ten days from their entry. Having failed to appeal immediately from the entry of those orders, defendants contend the plaintiff children waived their rights to appeal and should not now be allowed to challenge the trial court's decision regarding their claims. We disagree.

Although the court's orders of 14 December 1982 may have been final in nature with respect to the children's claims, such orders were not final judgments as defined by Rule 54 of the North Carolina Rules of Civil Procedure because they adjudicated the rights and liabilities of fewer than all the parties and did not contain a determination by the trial court that there was no just reason for delay. See G.S. 1A-1, Rule 54(b). Thus, an immediate appeal could only have been taken from the 14 December 1982 orders if they affected a substantial right of the parties. See G.S. 1-277; G.S. 1A-1, Rule 54(b).

Assuming arguendo that the 14 December 1982 orders affected a substantial right of the parties, the plaintiff children could have immediately appealed pursuant to G.S. 1-277 if they so desired. However, they were not required to do so. See Lloyd v. Carnation Co., 61 N.C.App. 381, 301 S.E.2d 414 (1983); Ingle v. Allen, 71 N.C.App. 20, 321 S.E.2d 588 (1984). By choosing not to appeal immediately, plaintiffs may have lost their right to have all their claims tried at one time, but they did not lose their right to appeal from the final judgment. Id. We conclude that the plaintiff children adequately preserved their right to appeal from the orders dismissing their claims by noting exceptions to those orders and giving timely notice of appeal after entry of the final judgment in the action.

II

We turn now to the merits of the appeal before us. This appeal presents several questions of first impression in this state including the following: (1) whether a cause of action for "wrongful life" may be maintained; (2) whether a cause of action for "wrongful birth" may be maintained; and (3) whether a cause of action may be maintained by the minor siblings of a "wrongfully born" child for damages allegedly suffered by them as a result of the wrongful birth. The causes of action which the plaintiffs seek to have recognized were unknown under the common law and have not been provided for by statute in this state; however, it has been argued that they are logically consistent with the traditional tort framework of duty, breach, proximate cause, and damages. See generally Note, "Wrongful Life: A Modern Claim Which Conforms to the Traditional Tort Framework", 20 Wm. and Mary L.Rev. 125, 155 (1978); Harbeson v. Parke-Davis, 98 Wash.2d 460, 656 P.2d 483 (1983). The theoretical bases of the actions concerned herein are closely related in that all are founded essentially upon a theory of negligence or medical malpractice, and reflect the claims of an impaired child and other members of his immediate family against a physician and other health care provider for their failure to properly advise the mother about amniocentesis and the availability of genetic counseling. See Procanik v. Cillo, 97 N.J. 339, 478 A.2d 755 (1984). Although there are obvious similarities between the causes of actions which plaintiffs seek to assert, there are also crucial differences as shall be demonstrated by our analysis of each proposed cause of action.

III

The first issue we shall address is whether a cause of action for "wrongful life" may be maintained in this state. In the context of the present case, this issue is framed as whether the trial court erred in dismissing Michael Azzolino's claim for wrongful life pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The only purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of the pleading against which it is directed. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). In deciding such a motion the trial court is to treat the allegations of the pleading it challenges as true. Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E.2d 282 (1976). A cause of action should not be dismissed for failure to state a claim upon which relief can be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. See O'Neill v. Bank, 40 N.C.App. 227, 252 S.E.2d 231 (1979).

The cause of action brought by Michael Azzolino sets forth a claim for what is often referred to as "wrongful life." A wrongful life claim is one brought by or on behalf of an impaired child who alleges that but for the defendant doctor or health care provider's negligent advice to or treatment of his parents, the child would not have been born. See Harbeson and Procanik, supra; Comment, " 'Wrongful Life': The Right Not To Be Born," 54 Tul.L.Rev. 480, 484-85 (1980). The essence of the child's claim is that the defendants wrongfully deprived his parents of information which would have prevented his birth. See Procanik, supra, 478 A.2d at 760. As stated in Comment, " 'Wrongful Life': The Right Not To Be Born," supra at 485:

The child does not allege that the physician's negligence caused the child's deformity. Rather, the claim is that the physician's negligence--his failure to adequately inform the parents of the risk--has caused the birth of the deformed child. The child argues that but for the inadequate advice, it would not have been born to experience the pain and suffering attributable to the deformity.

In the present case, plaintiffs alleged as follows: During the spring of 1979, Mrs. Azzolino was in the first trimester of pregnancy and was accepted by defendants as their patient for prenatal medical care. Mrs. Azzolino advised the individual defendants that she was 36 years old and requested their medical advice with respect to the advisability of having a diagnostic procedure known as amniocentesis performed on her for the purpose of determining whether her fetus had genetic defects. In response to a direct question from Mrs Azzolino regarding the advisability of this procedure, defendant Jean Dowdy spoke of her own personal and religious prejudices, and those of her husband, against the use of amniocentesis. She advised Mrs. Azzolino of the medical risks associated with amniocentesis, without setting those risks in the context of a complete risk-benefit analysis and thus unduly emphasized those risks.

In response to a similar question addressed to him, Dr. Dingfelder advised Mrs. Azzolino that she need not worry about amniocentesis because it was not necessary or advisable for her as the upswing was for women 37 years of age or older. Mr. and Mrs. Azzolino quite foreseeably relied upon the defendants' advice; therefore, Mrs. Azzolino did not undergo amniocentesis. In giving such advice to Mrs. Azzolino, and in failing subsequently to cure such advice, the individual defendants negligently departed from the standard of practice applicable to him or her. Dr. Dingfelder was also negligent in his supervision of Jean Dowdy. Defendant OCCHS is liable for the negligence of the individual defendants under the doctrine of respondeat superior. Had Mrs. Azzolino been properly advised, she would have had an amniocentesis performed which would have revealed that her fetus had Down's Syndrome. Had she been informed that her fetus had Down's Syndrome, Mrs. Azzolino would have legally terminated her pregnancy by having an abortion. Instead, as a direct and proximate result of defendants' alleged negligence, Michael Azzolino was allowed to be born afflicted with Down's Syndrome and has been made to suffer a life with impairments to which nonexistence would be preferable.

We begin our analysis of Michael's proposed cause of action by determining whether it fits within the traditional tort framework. As with any action founded upon negligence, Michael, in order to successfully pursue his claim, must demonstrate the existence of a duty, the breach of which may be considered the proximate cause of the damages suffered by the injured party. See Becker v. Schwartz, 46 N.Y.2d 401, 410, 413 N.Y.S.2d 895, 386 N.E.2d 807, 811 (1978); 57 Am.Jur.2d Negligence § 33 (1971).

First, we must determine whether the individual defendants owed a duty to Michael. Unless a duty exists, there can be neither a breach nor liability. W. Prosser, Handbook Of The Law Of Torts § 53 (4th ed. 1971). Here, the individual defendants allegedly accepted Mrs. Azzolino as their patient for prenatal care; therefore, they clearly had a duty to provide reasonable care for her. We believe the defendants' duty extended not only to Mrs. Azzolino but also to the fetus she was carrying. The recognition of such a...