Azzolino v. Dingfelder
| Decision Date | 10 December 1985 |
| Docket Number | No. 718PA84,718PA84 |
| Court | North Carolina Supreme Court |
| 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 v. James R. DINGFELDER; Jean Dowdy; and Orange County Comprehensive Health Services, Inc., doing business as Haywood-Moncure Community Health Center. |
Beskind and Rudolf by Donald H. Beskind, Thomas K. Maher, Durham, Tim Hubbard and Mary Lunday Adams, Pittsboro, for plaintiff-appellees.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by John H. Anderson, C. Ernest Simons, and Steven M. Sartorio, Raleigh, for defendant-appellants.
Blanchard, Tucker, Twiggs, Earls & Abrams, P.A. by Douglas B. Abrams, Raleigh, for North Carolina Academy of Trial Lawyers, amicus curiae.
Sharon Thompson, Durham, Nan D. Hunter, Janet Benshoof and Suzanne M. Lynn, New York City, for American Civil Liberties Union Foundation, amicus curiae.
John A. Swem, Greensboro, for North Carolina Right to Life Educ. and Legal Defense Fund, amicus curiae.
This appeal arises from a medical malpractice action brought by a child and his parents and siblings alleging that the defendants' negligent failure to advise the parents properly of the availability of amniocentesis and genetic counseling and negligent prenatal care of the mother prevented the termination of the mother's pregnancy by abortion and thereby resulted in the child's birth. The child is afflicted with Down's Syndrome, a genetic disorder characterized by mental retardation and physical abnormalities. We conclude that neither the parents' claim for relief for "wrongful birth", the child's claim for "wrongful life" nor the siblings' claim presents a claim upon which relief can be granted.
The plaintiffs brought this action seeking to recover for injuries allegedly arising from the birth of the plaintiff Michael L. Azzolino, the son of the plaintiffs Louis and Jane Azzolino and the half-brother of the plaintiffs Regina Gallagher and David Azzolino. The defendants named in the complaint are Orange-Chatham Comprehensive Health Services, Inc. (hereinafter "OCCHS"), Dr. James R. Dingfelder, a specialist in obstetrics and gynecology who at all pertinent times was a professor in the University of North Carolina School of Medicine, and Jean Dowdy, a registered nurse and family nurse practitioner employed by OCCHS at the Haywood-Moncure Clinic (hereinafter "Clinic") operated by OCCHS in Chatham County.
The plaintiffs allege that Mrs. Azzolino received prenatal care at the Clinic during her pregnancy. While at the Clinic, she was under the care of the defendants Jean Dowdy and Dr. Dingfelder. As a result of a contract between the University of North Carolina and OCCHS, Dr. Dingfelder spent one-half day per week at the Clinic supervising the work of the family nurse practitioners and providing gynecological and obstetrical services to patients.
By the first claim for relief, the plaintiffs seek damages on behalf of the parents for the "wrongful birth" of Michael. The plaintiffs allege that the defendants were negligent in their prenatal care of Mrs. Azzolino in that they failed to advise the parents properly and incorrectly advised them with respect to the availability of amniocentesis and genetic counseling. Had the parents been properly advised, they allege that they would have had amniocentesis performed which would have shown that Mrs. Azzolino's pregnancy would result in a child with Down's Syndrome if allowed to go to term. Had she known that Michael would be afflicted with Down's Syndrome, the plaintiffs allege that Mrs. Azzolino would have terminated her pregnancy by an abortion.
By the second claim for relief, Michael Azzolino, through his parents as guardians, seeks to recover damages resulting from his "wrongful life." The plaintiffs allege that Michael has suffered compensable damages by virtue of his very existence afflicted with Down's Syndrome. The plaintiffs further allege that but for the defendants' negligence, Michael would not have suffered such damages because he would have been aborted while still a fetus.
In the third claim for relief, Michael's older siblings, Regina and David, allege that their brother's birth and life has forced them to endure family financial and emotional hardships associated with having a child with Down's Syndrome in the family and also has deprived them of the full measure of the society, comfort, care and protection of their parents. They allege that their injuries in this regard were proximately caused by the defendants' negligence.
The plaintiffs allege that Dr. Dingfelder is liable for the negligence of the defendant Jean Dowdy under the doctrine of respondeat superior. They further allege that the defendant OCCHS is liable for the negligence of the other defendants by reason of the same doctrine.
By orders dated December 14, 1982 and filed on December 28, 1982, Judge Giles R. Clark granted motions of the defendants under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure to dismiss the claim for relief for wrongful life brought on behalf of Michael and the claim for relief on behalf of Michael's siblings. The case came on for trial of the claim for relief on behalf of the parents for wrongful birth. At the close of the plaintiffs' evidence at trial, Judge Henry V. Barnette, Jr. allowed the defendants' motions under Rule 50 of the North Carolina Rules of Civil Procedure for directed verdicts in their favor on the wrongful birth claim. On May 24, 1983 Judge Barnette entered judgment finally terminating the action. The plaintiffs appealed to the Court of Appeals.
The Court of Appeals affirmed the trial court's dismissal of the claim for relief on behalf of Regina Mary Gallagher and David John Azzolino, the minor siblings of Michael Azzolino. It also affirmed the trial court's directed verdict in favor of the defendant Jean Dowdy on the plaintiff parents' claim against her for wrongful birth. The Court of Appeals reversed the directed verdicts against the parents on their wrongful birth claim against the defendants Dr. James Dingfelder and OCCHS and also reversed the trial court's dismissal of Michael Azzolino's claim for wrongful life.
The Court of Appeals also addressed the measure of damages to be applied should Michael and his parents prevail at trial. The Court of Appeals concluded that Michael's wrongful life claim would not justify general damages for being born impaired "because of the impossibility of assessing such damages in any fair, nonspeculative manner." 71 N.C.App. at 300, 322 S.E.2d at 576. It allowed recovery of special damages for the extraordinary expenses to be incurred during Michael's lifetime as a result of his impairment. The Court of Appeals held that these damages were recoverable by the child with his parents being entitled to disbursements from the child's recovery for reasonable expenses for special care subject to the approval of the clerk of superior court. The Court of Appeals further concluded that it was appropriate to allow the parents to recover damages only for their mental anguish resulting from the existence of the impaired child, since they would be indirectly compensated for the child's extraordinary expenses from the damages he would recover under his wrongful life claim.
On February 28, 1985, we allowed the defendants' petition for discretionary review and the plaintiffs' cross-petition for discretionary review of additional issues. As we conclude that neither wrongful birth nor wrongful life claims are cognizable under the law of this jurisdiction, we affirm in part and reverse in part the decision of the Court of Appeals.
The terms "wrongful birth" and "wrongful life" are descriptive titles used in those jurisdictions which have recognized claims for relief of parents and children for negligent medical treatment or advice which deprives parents of the opportunity to abort a fetus in order to avoid the birth of a defective child. E.g., Procanik v. Cillo, 97 N.J. 339, 347, 478 A.2d 755, 760 (1984). "Wrongful life" refers to a claim for relief by or on behalf of a defective child who alleges that but for the defendant's negligent treatment or advice to its parents, the child would not have been born. Id. "Wrongful birth" refers to the claim for relief of parents who allege that the negligent treatment or advice deprived them of the choice of terminating pregnancy by abortion and preventing the birth of the defective child. E.g., James G. v. Caserta, 332 S.E.2d 872, 874 (W.Va.1985). The various theories which have been relied upon to support these claims for relief have been discussed at length by numerous legal commentators in recent years. See id. at n. 4 ().
We emphasize at the outset that this appeal does not present a situation in which it is alleged that the defendants negligently injured a fetus and thus caused an otherwise normal child to be born in a defective condition. The plaintiffs do not allege that the negligence of the defendants caused Down's Syndrome in Michael Azzolino. Nor do the plaintiffs allege that Michael ever had a chance to be a normal child. The essence of the plaintiffs' claims is that but for the negligence of the defendants, Michael would never have been born at all and he, his parents and his siblings would not have suffered from his affliction with Down's Syndrome.
Although we undertake to discuss separately the claims of the child, his siblings and his parents, we recognize that none of these claims may be considered properly in isolation. All of them arise from the same alleged negligence and allege as injury the life of the same defective child. Only the impact of the alleged negligence and injury upon the...
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