Blair v. Hutzel Hosp.

• Decision Date: 09 July 1996
• Docket Number: Docket No. 173709
• Citation: 217 Mich.App. 502,552 N.W.2d 507
• Parties: Raquel BLAIR, Individually and as Next Friend of Delano Blair, a minor, Plaintiff-Appellant/Cross-Appellee, v. HUTZEL HOSPITAL, Defendant-Appellee/Cross-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 507

552 N.W.2d 507

217 Mich.App. 502

Raquel BLAIR, Individually and as Next Friend of Delano Blair, a minor, Plaintiff-Appellant/Cross-Appellee, v. HUTZEL HOSPITAL, Defendant-Appellee/Cross-Appellant.

Docket No. 173709.

Court of Appeals of Michigan.

Submitted Feb. 6, 1996, at Detroit.

Decided July 9, 1996, at 9:10 a.m.

Released for Publication Sept. 4, 1996.

Gittleman, Paskel, Tashman & Walker, P.C. by Clifford Paskel and Evan Shaw, Southfield, for plaintiff.

Kitch, Drutchas, Wagner & Kenney, P.C. by Charles W. Fisher and Pamela Hobbs, Detroit, for defendant.

Before: O'CONNELL, P.J., and REILLY and D.E. SHELTON, ^* JJ.

D.E. SHELTON, Judge.

Plaintiff Raquel Blair was a twenty-two-year-old pregnant woman who was treated at defendant Hutzel Hospital. She filed this action against the hospital, alleging that the defendant negligently failed to offer her maternal serum alpha fetoprotein (MSAFP) screening during the second trimester of her pregnancy. She alleges that the screening test would have provided a substantial opportunity to discover that her fetus had Down's syndrome and that by failing to administer the test the hospital thereby negligently deprived her of the ability to make an informed decision to terminate her pregnancy, causing her to deliver Delano Blair, a child born with Down's syndrome, on May 10, 1992. ¹

Defendant filed its first motion for summary disposition, pursuant to MCR 2.116(C)(8) and (10), arguing that plaintiff's wrongful birth ² action was contrary to the public policy of the State of Michigan. The trial court denied the motion.

Defendant filed a second motion for summary disposition, pursuant to MCR 2.116(C)(10), arguing that plaintiff could not prove proximate causation beyond mere conjecture. Although there was evidence that there was a twenty-five percent to thirty percent chance that MSAFP would have identified the fetus as suffering from Down's syndrome, the trial court nevertheless granted defendant's motion. Plaintiff has appealed and defendant has cross appealed from the trial court rulings.

Two issues are presented for appeal. First, defendant asks this Court to hold that the tort of wrongful birth is no longer valid in Michigan. Second, defendant maintains that the doctrine that the loss of a substantial opportunity to avoid physical harm should not be applied to a wrongful birth cause of action.

I. Wrongful Birth

This Court first expressly recognized the wrongful birth cause of action in Eisbrenner v. Stanley, 106 Mich.App. 357, 308 N.W.2d 209 (1981), a case involving rubella-caused birth defects. In Proffitt v. Bartolo, 162 Mich.App. 35, 40-41, 412 N.W.2d 232 (1987), this Court again held that wrongful birth is a cognizable claim in Michigan:

The term "wrongful birth" is a shorthand name given to actions brought by the parents of a child born with severe defects against a physician (or other responsible party) who negligently fails to inform them in a timely fashion of the risk that the mother will give birth to such a child, effectively precluding an informed decision as to whether the pregnancy should be avoided or terminated. A "wrongful life" claim, on the other hand, is brought on behalf of a child with birth defects who claims that, but for the negligent advice to the parents, the child would not have been born.

In rejecting that earlier challenge to the wrongful birth concept, we noted at p. 42, 412 N.W.2d 232:

The jurisdictions considering the issue have now almost uniformly adopted the wrongful birth cause of action. See generally James G. v. Caserta, , 332 S.E.2d 872, 875, n. 6 (W.Va.1985), and Anno: Tort Liability for wrongfully causing one to be born, 83 ALR3d 15.

And concluded at pp. 46-47, 412 N.W.2d 232:

Against this backdrop, we conclude that the Eisbrenner holding with regard to wrongful birth remains the law in Michigan until changed by the Legislature or the Supreme Court. The issue of whether abortion should be allowed and all the related moral, religious, and policy arguments are not before us following the line of privacy cases culminating in Roe v. Wade, [410 US 113; 93 SCt 705; 35 LEd2d 147 (1973) ]. The issue is instead whether physicians have a duty to ascertain and advise parents of information necessary for the parents to exercise the options provided by Roe, whatever the physician personally believes. If a physician breaches the appropriate duty under the facts of a case, and it can be established that the parents would have avoided or terminated the pregnancy, the necessary causal connection is established. The parents should recover for their extraordinary medical expenses and the extraordinary costs of raising the child, as well as the emotional harm they have suffered.

As long as abortion remains an option allowed by law, the physician owes a duty to furnish patients with adequate information for them to be able to decide whether to choose that course of action. Those who would eliminate such a right of recovery must first abolish the right to have an abortion--a matter not germane to this appeal.

We have continued to recognize the wrongful birth cause of action in subsequent cases, and neither the Supreme Court nor the Legislature has acted to change our holdings. See Rinard v. Biczak, 177 Mich.App. 287, 441 N.W.2d 441 (1989), ³ and Rouse v. Wesley, 196 Mich.App. 624, 494 N.W.2d 7 (1992). ⁴

The defendant asserts that the adoption of M.C.L. § 400.109a; M.S.A. § 16.490(19a) and the holding of the Supreme Court in Doe v. Dep't of Social Services, 439 Mich. 650, 487 N.W.2d 166 (1992), indicate a contrary public policy. That statute whose constitutionality was upheld by the Supreme Court in Doe, prohibits the use of Medicaid funds to pay for an abortion unless the abortion was necessary to save the life of the mother. Such a funding decision does not affect or change the principle that abortions are lawful in this country, or the principle that a physician owes a duty to furnish a patient with adequate information so the patient may decide whether to choose to have an abortion or to be exposed to the possibility of producing a disabled or deformed child.

The trial court properly denied summary disposition of the wrongful birth claim because that is still a viable cause of action in this state.

II. The Substantial Opportunity Rule

In Falcon v. Memorial Hosp., 436 Mich. 443, 462 N.W.2d 44 (1990), the Supreme Court held that the family of a decedent could maintain an action for malpractice where the malpractice had denied the decedent a substantial opportunity to survive, even when that opportunity was less than fifty percent. The Michigan Supreme Court held that the trial court erred in granting summary disposition where the plaintiff could show that the defendants' medical malpractice had deprived the plaintiff's decedent of a substantial opportunity to avoid dying as a result of cancer. The plaintiff in Falcon presented evidence that, absent the defendants' negligence, the plaintiff's decedent would have had a 37.5 percent chance of survival. The Court held that this was a "substantial" opportunity and that the plaintiff could maintain an action against the defendants for their failure to preserve the decedent's opportunity to live.

Defendant here maintains that this substantial opportunity rule should be limited to wrongful death actions. There is no merit to that position. Although Falcon involved a claim of wrongful death, Justice Levin stated in a footnote that [t]he accrual of a cause of action for loss of an opportunity of achieving a better result does not ... depend on whether death ensues as a result. The cause of action accrues when harm and damages result from the loss of a substantial opportunity for a better result. The plaintiff has the burden of establishing through expert testimony the difference between the course of the disease and treatment had there been a correct diagnosis, and the course of the disease and treatment as a result of failure to diagnose or misdiagnosis. [Id. at 470, n. 43, 462 N.W.2d 44.]

Moreover, this Court has very recently held that the substantial opportunity rule applies to all medical malpractice actions. In Weymers v. Khera, 210 Mich.App. 231, 533 N.W.2d 334 (1995), lv. gtd. 451 Mich. 898, 549 N.W.2d 579 (1996), the plaintiff claimed that her physician's negligence deprived her of a thirty to forty percent opportunity to save her kidney function. Judge Smolenski eloquently stated at pp. 236-237, 533 N.W.2d 334:

We hold that the loss of a substantial opportunity to avoid physical harm is harm distinct from the underlying injury for which tort law should allow recovery in proportion to the extent of the lost opportunity, provided that the negligence of the defendant, more probably than not, caused the loss of opportunity.

We believe that the arguments for allowing a cause of action for the loss of an opportunity to survive apply equally to allowing a cause of action for the loss of an opportunity to avoid lesser physical harm. In recognizing such harm, the traditional rule that the plaintiff must prove that the defendant's negligent conduct, more likely than not, caused the harm is not contradicted. Falcon, supra at 462-463 (Levin, J.), 472-473 . (Boyle, J.); Harris v. Kissling, 80 OrApp 5; 721 P2d 838 (1986); but see Falcon, supra at 473-495 (Riley, C.J., dissenting).

Allowing recovery for the loss of a substantial opportunity to avoid physical harm is an equitable approach. DeBurkarte v. Louvar, 393 NW2d 131, 137 (Iowa, 1986). In this case, defendants undertook to protect plaintiff from the type of harm that occurred. Falcon, supra at 461 (Levin, J.). As Justice Levin stated in Falcon, an actor's negligent omission in cases like this prevents the plaintiff from being able to prove the defendant's liability, and destroys the ability to allow fate to run its course. Id. at 456-457, ns 20, 21 . Here, assuming for the purpose of argument only that defendants...