Beardsley v. Wierdsma

• Court: Wyoming Supreme Court
• Writing for the Court: Before ROSE; BROWN; ROSE; ROONEY
• Citation: Beardsley v. Wierdsma, 650 P.2d 288 (Wyo. 1982)
• Decision Date: 03 September 1982
• Docket Number: Nos. 5662,5672,s. 5662
• Parties: Nancy BEARDSLEY, et al., Fannie Jo Counts, et al., Appellants (Plaintiffs), v. John WIERDSMA, M. D.; Memorial Hospital of Sweetwater County, Rock Springs, Wyoming; and Davol, Inc., a Delaware Corporation, Appellees (Defendants).

Page 288

650 P.2d 288

Nancy BEARDSLEY, et al., Fannie Jo Counts, et al., Appellants (Plaintiffs), v. John WIERDSMA, M. D.; Memorial Hospital of Sweetwater County, Rock Springs, Wyoming; and Davol, Inc., a Delaware Corporation, Appellees (Defendants).

Nos. 5662, 5672.

Supreme Court of Wyoming.

Sept. 3, 1982.

P. Richard Meyer of Spence, Moriarity & Schuster, Jackson, for appellants.

R. R. Bostwick of Murane & Bostwick, Casper, for appellee John Wierdsma.

Joseph E. Vlastos of Vlastos, Reeves & Murdock, P. C., Casper, for appellee Memorial Hosp. of Sweetwater County.

T. Michael Golden of MacPherson, Golden, Brown, & Dirck, Rawlins, for appellee Davol, Inc.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

BROWN, Justice.

This case involves two separate actions which were consolidated for review. Appellants filed suit against the appellees seeking damages resulting from unsuccessful tubal ligations. There are several categories of appellants here.

Eighteen appellants had tubal ligations so that they would become sterile, but instead became pregnant. They were plaintiffs below. At the time of the suits eleven of these appellants had given birth to healthy, normal children; three of the appellants were pregnant; and four of the appellants had terminated their pregnancies.

The husbands of the female appellants were also plaintiffs below and are appellants here. The women who did not terminate their pregnancies, together with their husbands, brought a cause of action which is styled as a "wrongful birth" action, although it is sometimes denominated a "wrongful pregnancy" action. It is essentially a medical malpractice action. The husbands and wives who became parents or were to become parents were also plaintiffs below on behalf of the children in another action which is denominated a "wrongful life" action.

Appellees here are Dr. Weirdsma, who performed the tubal ligations; Memorial Hospital of Sweetwater County, where the operations were performed; and Davol, Inc., which manufactured the cauterization instrument used in the surgery.

In their complaints, appellants alleged various acts of negligence against the three appellees. They also alleged breach of warranty against Davol, Inc. Intermingled in the appellants' tort claims are allegations that apparently were designed to state a cause of action for breach of contract. The trial judge granted judgment on the pleadings in favor of all appellees.

Appellants stated the issues as follows:

"1. Was it error for the trial court to grant judgment on the pleadings when the Plaintiffs' complaint alleged that Defendants' medical negligence caused Plaintiffs to become pregnant and thereafter to sustain emotional distress, medical expenses, alteration of lifestyle and other damages?

"2. Can the Defendants exempt themselves from the application of traditional tort law doctrines by arguing that the pregnancies, children and abortions caused by their conduct created a 'benefit' to Plaintiffs which, as a matter of law, outweighs the detrimental results of their negligence?

"3. Are the Plaintiffs, who sustained medical expenses, pain, emotional trauma, changes in lifestyle and additional costs which are attributable to the Defendants' negligence, entitled to have those damages determined by a jury and not upon a motion for judgment on the pleadings?"

We will affirm in part, reverse in part and remand.

I

The "wrongful life" action asserted by the parents on behalf of their children is an action for damages based on appellees' negligence which caused a particular child to be born. We hold that a cause of action for "wrongful life" under the circumstances here does not exist.

The vast majority of cases have refused to recognize a cause of action for "wrongful life" on behalf of a child based on the rationale that there is no legal right not to be born. ¹

The Alabama Supreme Court in Elliott v. Brown, Ala., 361 So.2d 546, 548 (1978) stated:

" * * * Fundamental to the recognition of such a cause of action (wrongful life) is the notion that the defendant has violated some legal right of plaintiff's and as a result she has suffered injury. * * *

"We hold that there is no legal right not to be born and the plaintiff has no cause of action for 'wrongful life.' "

The few courts which have acknowledged a cause of action for wrongful life have done so only for impaired children, and then usually because there was a causal connection between the alleged negligence and the impairment. See Park v. Chessin, 60 A.D.2d 80, 400 N.Y.S.2d 110 (1977), modified to allow a cause of action only for "wrongful birth" in 46 N.Y.2d 401, 386 N.E.2d 807, 413 N.Y.S.2d 895 (1978). In Turpin v. Sortini, 31 Cal.3d 220, 182 Cal.Rptr. 337, 643 P.2d 954 (1982), the question was whether a child born with a hereditary affliction could maintain a tort action against a physician who negligently failed to advise the child's parents before the child's conception of the possibility of the hereditary condition, thereby depriving them of the opportunity to choose not to conceive the child.

The California Supreme Court stated:

"In sum, we conclude that while a plaintiff-child in a wrongful life action may not recover general damages for being born impaired as opposed to not being born at all, the child-like his or her parents-may recover special damages for the extraordinary expenses necessary to treat the hereditary ailment."

We know of no cases recognizing a "wrongful life" cause of action under the circumstances of this case. The district judge was correct in dismissing the wrongful life claims.

II

The principal issue in this case is whether the parents have a cause of action in their own right for "wrongful birth" against appellees, assuming that fault on appellees' part led to the birth of an unplanned, yet normal and healthy child.

Appellants seek damages against appellees as follows:

"1. For actual expenses to be incurred in the future which have been occasioned by the birth of minor children in question including medical and hospital care during delivery, actual costs of raising such children including medical expenses, expenses for general care and maintenance and other similar expenses.

"2. For the reasonable value of the mental anguish sustained by appellants by reason of wrongful conduct of appellees including interference with the lifestyle decisions made by appellants and for the emotional distress occasioned by changes in the future plans of the appellants and in the case of the appellants who have had abortions the reasonable value of such emotional distress.

"3. For punitive damages against Dr. Wierdsma in a reasonable sum.

"4. For such other and further relief as the court deems proper in the premises together with appellants' costs incurred herein."

Courts which have considered "wrongful birth" cases have reached four different positions concerning damages when a normal, healthy child is born. Because this is a relatively new area of medical malpractice law, we will discuss each of these four positions on damages.

The first view is that the parents have no right to recover any damages or expenses for the performance of unsuccessful sterilization operations. Some earlier cases held that despite any finding of negligence, breach of contract, or misrepresentation on the part of a physician or surgeon, no damages resulted from the birth of a normal child through normal delivery with no permanent harm to the mother. One case was based on the grounds that the gift of a normal child could not be considered an injury to the parents and that in any event, the granting of damages on such grounds would be against public policy. Shaheen v. Knight, 11 Pa.D. & C. 41, 6 Lycoming R. 19 (1957). In Ball v. Mudge, 64 Wash.2d 247, 391 P.2d 201 (1964), the court decided that the jury, as reasonable persons, might well have concluded that the parents suffered no damage in the birth of a healthy child and that the costs incidental to the birth were far outweighed by the blessing of a child. The court did not, however, go so far as to state that damages would be against public policy as a matter of law.

We are not aware of any recent cases that deny all damages to parents; provided, of course, that negligence, causation and damages are properly proved.

The second view is that the parents have a right to recover all damages and expenses, including the cost of rearing the child. Some courts which have allowed damages for the cost of rearing a healthy child seem to have based their decisions on the fact that the right to limit procreation through contraception and through a limited right to abortion is within a constitutionally protected "zone of privacy." In Cockrum v. Baumgartner, 99 Ill.App.3d 271, 54 Ill.Dec. 751, 425 N.E.2d 968, 970 (1981), two cases involving unsuccessful sterilization attempts were consolidated on appeal. The court in allowing damages, including rearing and education expenses, said:

" * * * That right is legally protectible and need not be justified or explained. The allowance of rearing costs is not an aspersion upon the value of the child's life. It is instead a recognition of the importance of the parent's fundamental right to control their reproductivity. (Citation.) We cannot endorse a view that effectively nullifies this right by providing that its violation results in no injury. * * * "

The third view is that parents have a right to recover all expenses and damages incurred or to be incurred resulting from the birth of an unplanned child, subject to an offset for the benefits that will be enjoyed by the parents. This concept is sometimes called the "benefit-rule". In adopting the "benefit-rule", some courts have applied Restatement, Second, Torts, § 920, p. 509 (1979).

"When the defendant's tortious conduct has caused harm to the plaintiff or to his property and in so doing has conferred a special benefit to the interest of the plaintiff that was harmed, the...