Bader v. Johnson
| Decision Date | 14 January 1997 |
| Docket Number | No. 02A05-9510-CV-396,02A05-9510-CV-396 |
| Citation | 675 N.E.2d 1119 |
| Parties | Patricia BADER, M.D., and Northeast Indiana Genetic Counseling, Inc., Appellants-Defendants, v. Ronald JOHNSON and Connie Johnson, Appellees-Plaintiffs. |
| Court | Indiana Appellate Court |
Patricia Bader, M.D. and Northeast Indiana Genetic Counseling, Inc. (collectively "Bader") bring this interlocutory appeal to challenge the trial court's denial of their motion for summary judgment. At issue is whether Ronald and Connie Johnson (the "Johnsons") can recover damages for the wrongful birth of their child, and if so, what the measure of damages should be. We heard oral argument on June 17, 1996.
For purposes of the summary judgment motion, the parties agreed that the facts alleged by the Johnsons are true. In 1979, the Johnsons gave birth to a daughter born with congenital hydrocephalus and severe mental and motor retardation. She required extensive medical care until her death four months later. When Connie became pregnant again in 1982, the Johnsons sought genetic counseling with Dr. Bader due to their first child's congenital disabilities. Testing confirmed that the pregnancy was normal. The Johnsons again sought genetic counseling with Dr. Bader when Connie became pregnant in 1991. An amniocentesis performed on April 17, 1991, when the pregnancy was at 19 1/2 weeks, revealed no abnormalities, but an ultrasound test performed on the same day by Dr. Bader indicated a baby with larger than expected ventricular size and an unusual head shape. Dr. Bader requested that Connie be scheduled for follow-up testing. However, due to an office error Connie was not scheduled and the ultrasound report was not forwarded to Connie's treating physician.
Connie's treating physician performed an ultrasound at 33 weeks gestation and discovered that the baby suffered from hydrocephalus. It was too late to terminate the pregnancy and Connie gave birth to Kelly on September 4, 1991. Kelly suffered from hydrocephalus and multiple congenital defects and died from her condition on January 1, 1992. If the Johnsons had been made aware of the abnormalities existing at the time of the first ultrasound, they would have terminated the pregnancy.
The Johnsons brought this wrongful birth claim seeking damages for (1) their lost opportunity to terminate the pregnancy and having to proceed with the pregnancy, labor and delivery; (2) the emotional pain and anguish of knowing that their child would suffer multiple congenital defects with little chance of survival; (3) the care and treatment provided for their child; (4) the medical expenses incurred; (5) lost personal time and lost income; and (6) the emotional anguish of watching their child suffer and die. Ronald Johnson also included a claim for loss of consortium.
Bader moved for summary judgment on the grounds that Indiana does not recognize a claim for damages for wrongful birth. The trial court denied Bader's motion for summary judgment, concluding that the Johnsons could recover damages for wrongful birth if they proved each element of the negligence action and that the damages they could recover include (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.
At the start it will be helpful to define the terms used to describe various related claims so that it is clear what is and is not being claimed here. "Wrongful birth" refers to claims brought by parents of a child born with birth defects alleging that due to negligent medical advice or testing they were precluded from an informed decision about whether to conceive a potentially handicapped child or, in the event of a pregnancy, to terminate it. Cowe v. Forum Group, Inc., 575 N.E.2d 630, 633 (Ind.1991). This is the claim involved in this appeal and Indiana has not yet addressed its viability. When such an action seeks damages on behalf of the child rather than the parents, the claim is referred to as "wrongful life." Id. Indiana has rejected claims for wrongful life. Id. "Wrongful conception or pregnancy" refers to a claim for damages sustained by the parents of an unexpected child alleging that the conception of the child resulted from negligent sterilization procedures or a defective contraceptive product. Id. Indiana recognizes this claim. Garrison v. Foy, 486 N.E.2d 5 (Ind.Ct.App.1985), reh'g denied.
Thirty-one (31) states and the District of Columbia have by case law or statute determined whether a claim for wrongful birth may be brought. Twenty-two (22) states and the District of Columbia have recognized such a claim by judicial decision. Keel v. Banach, 624 So.2d 1022 (Ala.1993); University of Arizona Health Sciences Center v. Superior Court, 136 Ariz. 579, 667 P.2d 1294 (1983); Turpin v. Sortini, 31 Cal.3d 220, 182 Cal.Rptr. 337, 643 P.2d 954 (1982); Lininger v. Eisenbaum, 764 P.2d 1202 (Colo.1988); Haymon v. Wilkerson, 535 A.2d 880 (D.C.1987); Garrison v. Medical Center of Delaware, Inc., 581 A.2d 288 (Del.1989); Kush v. Lloyd, 616 So.2d 415 (Fla.1992); Arche v. United States Dep't of Army, 247 Kan. 276, 798 P.2d 477 (1990); Reed v. Campagnolo, 332 Md. 226, 630 A.2d 1145 (1993); Viccaro v. Milunsky, 406 Mass. 777, 551 N.E.2d 8 (1990); Greco v. United States, 111 Nev. 405, 893 P.2d 345 (1995); Smith v. Cote, 128 N.H. 231, 513 A.2d 341 (1986); Schroeder v. Perkel, 87 N.J. 53, 432 A.2d 834 (1981); Becker v Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978); Owens v. Foote, 773 S.W.2d 911 (Tenn.1989); Jacobs v. Theimer, 519 S.W.2d 846 (Tex.1975); Naccash v. Burger, 223 Va. 406, 290 S.E.2d 825 (1982); Harbeson v. Parke-Davis Inc., 98 Wash.2d 460, 656 P.2d 483 (1983); James G. v. Caserta, 175 W.Va. 406, 332 S.E.2d 872 (1985); Dumer v. St. Michael's Hospital, 69 Wis.2d 766, 233 N.W.2d 372 (1975); Goldberg v. Ruskin, 128 Ill.App.3d 1029, 84 Ill.Dec. 1, 471 N.E.2d 530 (1984); Eisbrenner v. Stanley, 106 Mich.App. 357, 308 N.W.2d 209 (1981); Flanagan v. Williams, 87 Ohio App.3d 768, 623 N.E.2d 185 (1993).
Additionally, two other states recognized the claim for wrongful birth by judicial decision, Blake v. Cruz, 108 Idaho 253, 698 P.2d 315 (1984), and Speck v. Finegold, 497 Pa. 77, 439 A.2d 110 (1981), but the action was subsequently barred by statute. Idaho Code § 5-334 (1985); 42 Pa.Cons.Stat. § 8305 (West Supp.1996). Four (4) other states have also barred a claim for wrongful birth by statute: Maine, 24 Me.Rev.Stat.Ann. § 2931 (West 1990); Minnesota, Minn.Stat. § 145.424 (West 1989); South Dakota, S.D. Codified Laws § 21-55-2; and Utah, Utah Code Ann. § 78-11-24 (1983). Missouri is commonly cited as a state that bars by statute claims for wrongful birth. See Mo.Ann.Stat. § 188.130 (Vernon 1986). But actually, Missouri only bars damages "arising from the possibility that but for the negligent conduct of defendants, the child would have been aborted." Shelton v. St. Anthony's Medical Center, 781 S.W.2d 48, 50 (Mo.1989). Claims asserting that the plaintiff suffered emotional distress because of the failure to be advised of the birth defects are allowed. Id.
Georgia and North Carolina bar claims for wrongful birth by judicial decision. Atlanta Obstetrics & Gynecology Group v. Abelson, 260 Ga. 711, 398 S.E.2d 557 (1990); Azzolino v. Dingfelder, 315 N.C. 103, 337 S.E.2d 528 (1985).
Thus, the overwhelming majority of courts have allowed claims for wrongful birth.
Bader argues in large part that the trial court erroneously denied summary judgment because Indiana has already rejected a claim for damages for wrongful life and the injury in a wrongful birth claim is the same as in a wrongful life claim. However, of the twenty-four (24) courts that have allowed an action for wrongful birth, at least eighteen (18) also have rejected claims for wrongful life. Elliott v. Brown, 361 So.2d 546 (Ala.1978); Walker v. Mart, 164 Ariz. 37, 790 P.2d 735 (1990); Lininger, 764 P.2d 1202; Garrison, 581 A.2d 288; Kush, 616 So.2d 415; Blake, 108 Idaho 253, 698 P.2d 315; Goldberg v. Ruskin, 113 Ill.2d 482, 101 Ill.Dec. 818, 499 N.E.2d 406 (1986); Bruggeman v. Schimke, 239 Kan. 245, 718 P.2d 635 (1986); Viccaro, 406 Mass. 777, 551 N.E.2d 8; Greco, 111 Nev. 405, 893 P.2d 345; Smith, 128 N.H. 231, 513 A.2d 341; Becker, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807; Speck, 497 Pa. 77, 439 A.2d 110; Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984); James G., 175 W.Va. 406, 332 S.E.2d 872; Dumer, 69 Wis.2d 766, 233 N.W.2d 372; Eisbrenner, 106 Mich.App. 357, 308 N.W.2d 209; Flanagan, 87 Ohio App.3d 768, 623 N.E.2d 185.
We follow suit and hold that the Johnsons may recover damages for the wrongful birth of their daughter. Contrary to Bader's argument, the injury in a wrongful birth claim is not the same as the injury in a wrongful life claim. In a wrongful life claim the tort system must put a value on a life with defects as opposed to no life at all, a requirement leading our Supreme Court to reject wrongful life actions. See Cowe, 575 N.E.2d at 635. However, in a wrongful birth claim the injury is not the life of the child as it is in a wrongful life claim. The injury in a wrongful birth claim is an injury to the parents, which is the loss of the opportunity to choose whether to terminate the pregnancy. The damages flowing from that injury are incurred by the parents, not the child, and include the emotional, physical and financial impact of being denied the opportunity to terminate the pregnancy. 1 Thus,...
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