Bader v. Johnson

• Decision Date: 25 July 2000
• Docket Number: No. 02S05-9709-CV-493.,02S05-9709-CV-493.
• Citation: 732 N.E.2d 1212
• Parties: Patricia BADER, M.D., and Northeast Indiana Genetic Counseling, Inc., Appellants-Defendants, v. Ronald JOHNSON and Connie Johnson, Appellees-Plaintiffs.
• Court: Indiana Supreme Court

732 N.E.2d 1212

Patricia BADER, M.D., and Northeast Indiana Genetic Counseling, Inc., Appellants-Defendants, v. Ronald JOHNSON and Connie Johnson, Appellees-Plaintiffs.

No. 02S05-9709-CV-493.

Supreme Court of Indiana.

July 25, 2000.

John M. Clifton, Cathleen M. Shrader, Barrett & McNagny, Fort Wayne, Indiana, Karl Mulvaney, Bingham Summers Welsh & Spilman, Indianapolis, Indiana, Attorneys for Appellants.

Jack E. Morris, Benson, Pantello, Morris, James & Logan, Fort Wayne, Indiana, Attorney for Appellees.

ON PETITION TO TRANSFER

RUCKER, Justice

Case Summary

Seeking damages for injuries they suffered when their child was born with severe birth defects, Ronald and Connie Johnson filed a complaint for medical malpractice against Dr. Patricia Bader and Northwest Indiana Genetic Counseling, Inc. (referred to collectively as Healthcare Providers). Healthcare Providers responded with a motion for summary judgment arguing that Indiana does not recognize the tort of "wrongful birth." The trial court denied the motion and Healthcare Providers appealed. Concluding that the Johnsons could pursue a wrongful birth cause of action, the Court of Appeals affirmed the trial court's denial of summary judgment. In its plurality opinion the Court of Appeals also determined that the Johnsons were not entitled to damages for emotional distress. Bader v. Johnson, 675 N.E.2d 1119 (Ind.Ct.App.1997). We grant Healthcare Providers' petition for transfer and hold that the Johnsons have stated a cognizable claim for medical malpractice that can be analyzed using traditional principles of tort liability.

Facts and Procedural History

The facts most favorable to the Johnsons as nonmoving parties show they gave birth to their first child in 1979. Born with hydrocephalus¹ and severe mental and motor retardation, the child required extensive medical care until her death at four months of age. When Connie became pregnant again in 1982, the Johnsons were fearful of bearing another child with congenital defects so they sought consultation with Dr. Bader. Testing showed the pregnancy was normal. Apparently the birth proceeded without complication. The Johnsons again sought counseling with Dr. Bader when Connie became pregnant in 1991. An amniocentesis performed at 19 ½ weeks gestation revealed no abnormalities. However, Dr. Bader performed an ultrasound test the same day that revealed a fetus with a larger than expected cavity within the brain and an unusual head shape. Dr. Bader requested her staff to schedule Connie for follow-up testing. Due to an office error however Connie was not scheduled and the ultrasound report was not forwarded to Connie's treating physician.

At 33 weeks gestation Connie's treating physician performed his own ultrasound test and discovered that the unborn child had hydrocephalus. It was too late to terminate the pregnancy and Connie gave birth on September 4, 1991. In addition to hydrocephalus, the child had multiple birth defects and died as a result four months later.

The Johnsons filed against Healthcare Providers a proposed complaint with the Indiana Department of Insurance. The complaint alleged negligence in Healthcare Providers' failure to inform the Johnsons of the result of the ultrasound test conducted at 19½ weeks gestation. In due course a medical review panel rendered an opinion concluding that Healthcare Providers failed to meet the applicable standard of care. Thereafter, the Johnsons filed a complaint in the Allen Circuit Court alleging that Healthcare Providers' failure to inform deprived the Johnsons of the opportunity to terminate the pregnancy. As a result the Johnsons sought a variety of damages.

Healthcare Providers responded with a motion for summary judgment contending Indiana does not recognize a claim for wrongful birth, and even if it does recognize such a claim, the trial court needed to determine what if any damages were recoverable. The trial court denied the summary judgment motion and concluded the Johnsons could recover damages for the following: (1) the extraordinary costs necessary to treat the birth defect, (2) any additional medical or educational costs attributable to the birth defect during the child's minority, (3) medical and hospital expenses incurred as a result of the physician's negligence, (4) the physical pain suffered by the mother, (5) loss of consortium, and (6) the mental and emotional anguish suffered by the parents. Healthcare Providers appealed the decision. Except for emotional distress damages, the Court of Appeals affirmed the judgment of the trial court. We grant transfer.

Discussion

I. Standard of Review

On appeal from the denial of a motion for summary judgment, we apply the same standard applicable to the trial court. Doe v. Shults-Lewis Child and Family Services, Inc., 718 N.E.2d 738, 745 (Ind.1999). We must determine whether the record reveals a genuine issue of material fact and whether the trial court correctly applied the law. Shuamber v. Henderson, 579 N.E.2d 452, 454 (Ind. 1991). Any doubt as to a fact or an inference to be drawn, is resolved in favor of the non-moving party. Malachowski v. Bank One, Indianapolis, 590 N.E.2d 559, 562 (Ind.1992). In addition, where the issue presented on appeal is a pure question of law, we review the matter de novo. State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind.1997)

. "Appellate courts independently, and without the slightest deference to trial court determinations, evaluate those issues they deem to be questions of law. A pure question of law is one that requires neither reference to extrinsic evidence, the drawing of inferences therefrom, nor the consideration of credibility questions for its resolution." 4A KENNETH M. STROUD, INDIANA PRACTICE § 12.3 at 134 (2d ed.1990).

II. Cause of Action

Although not disputing the operative facts in this case, Healthcare Providers contend the trial court erred in denying its motion for summary judgment because as a matter of law Indiana does not recognize a claim in tort for wrongful birth. Although a popular characterization among some commentators and a number of jurisdictions² the term "wrongful birth"³ seems to have its genesis as a play upon the statutory tort of "wrongful death." See Alexander M. Capron, Tort Liability in Genetic Counseling, 79 COLUM. L.REV. 618, 634 n. 62 (1979). However, as the Nevada Supreme Court observed, "we see no reason for compounding or complicating our medical malpractice jurisprudence by according this particular form of professional negligence action some special status apart from presently recognized medical malpractice or by giving it the new name of `wrongful birth.' " Greco v. United States, 111 Nev. 405, 893 P.2d 345, 348 (1995). We agree. It is unnecessary to characterize the cause of action here as "wrongful birth" because the facts alleged in the Johnsons' complaint either state a claim for medical malpractice or they do not. Labeling the Johnsons' cause of action as "wrongful birth" adds nothing to the analysis, inspires confusion, and implies the court has adopted a new tort.

Medical malpractice cases are no different from other kinds of negligence actions regarding that which must be proven. The plaintiff must show: (1) duty owed to plaintiff by defendant, (2) breach of duty by allowing conduct to fall below the applicable standard of care, and (3) compensable injury proximately caused by defendant's breach of duty. Oelling v. Rao, 593 N.E.2d 189, 190 (Ind.1992). This jurisdiction has long recognized a physician's duty to disclose to her patient material facts relevant to the patient's decision about treatment. Boruff v. Jesseph, 576 N.E.2d 1297, 1299 (Ind.Ct.App.1991). Although a discussion of this duty has generally arisen in cases involving informed consent⁴ and the doctrine of fraudulent concealment,⁵ neither of which is alleged here, the underlying premise is still the same. In order for a patient to make an informed decision about her health, she must have the relevant facts at her disposal. If the physician has possession of those facts, then the physician has a duty to disclose them. "Th[is] duty arises from the relationship between the doctor and patient, and is imposed as a matter of law as are most legal duties." Culbertson v. Mernitz, 602 N.E.2d 98, 101 (Ind.1992) (quoting Joy v. Chau, 177 Ind.App. 29, 39, 377 N.E.2d 670, 676-77 (1978)).

In this case, the Johnsons allege they consulted Healthcare Providers to obtain information having a direct bearing on Connie's health, namely: a decision to terminate the pregnancy. According to the Johnsons the ultrasound test conducted by Healthcare Providers, revealing pre-natal abnormalities, was precisely the kind of information the couple needed to make an informed decision. For purposes of this summary judgment action we accept the Johnsons' assertions as true. National City Bank, Indiana v. Shortridge, 689 N.E.2d 1248, 1250-51 (Ind.1997). As a matter of law Healthcare Providers owed a duty to the Johnsons to disclose the result of the test.

As for a breach of duty, expert medical testimony is usually required to determine whether a physician's conduct fell below the applicable standard of care. Simms v. Schweikher, 651 N.E.2d 348, 350 (Ind.Ct.App.1995). This is generally so because the technical and complicated nature of medical treatment makes it impossible for a trier of fact to apply the standard of care without the benefit of expert opinion on the ultimate question of breach of duty. Id. Here, however, we doubt whether expert testimony is required to determine whether Healthcare providers breached its duty. See Harris v. Raymond, 715 N.E.2d 388, 394 (Ind.1999)

(stating that "not all medical malpractice cases are so technical that they require expert testimony."), reh'g. denied. If Healthcare Providers did not provide the Johnsons with the result of the ultrasound, then Healthcare Providers breached its duty. It does not appear to us that expert...