Blake v. Cruz

Decision Date18 September 1984
Docket NumberNo. 14510,14510
Citation108 Idaho 253,698 P.2d 315
PartiesEdward J. BLAKE, as Guardian ad litem for Dessie Amindia Blake, a minor, Edward J. Blake, and Sharron Blake, Plaintiffs-Appellants, v. Amado J. CRUZ, M.D., Defendant-Respondent.
CourtIdaho Supreme Court
Eli Rapaich and Daniel L. Spickler, Lewiston, for plaintiffs-appellants

Richard C. Fields and Candy R. Wagahoff, Boise, for defendant-respondent.

HUNTLEY, Justice.

This appeal presents two questions of first impression for this court: (1) whether to recognize a cause of action for "wrongful birth", an action brought by parents against a physician whose professional negligence resulted in the birth of a child with congenital defects; and (2) whether to recognize a cause of action for "wrongful life", where the action is brought by or on behalf of a child against a physician whose negligence caused the child's birth.

We are also called upon to determine when the statute of limitations commences to run on a wrongful birth action. The trial court held, in granting the defendant's motion for summary judgment, that the wrongful birth cause of action accrued, not at the time of birth, but rather at the time of the doctor's negligent act, resulting in the action not having been timely filed. The court further held that wrongful life is not a recognized cause of action in Idaho. It is from this judgment that the plaintiffs appeal. We reverse in part and affirm in part and remand for further proceedings consistent herewith.

On November 29, 1974, Sharron Blake went to the Kamiah Clinic and was examined by Dr. Cruz. She had not been feeling well and suspected that she might be pregnant. She also thought that she might have rubella (German measles), as she had a rash on her neck and had recently been exposed to rubella when her son had the disease. She specifically requested that the doctor test her for both pregnancy and rubella.

Dr. Cruz determined that Mrs. Blake was in the early stages of pregnancy. He diagnosed the rash as roseola and told her that she did not have rubella. He did not draw any blood samples in order to run rubella titer tests to confirm his diagnosis, and he failed to advise her that it was important to have such tests done as soon as possible. (The titer test is the only available definitive diagnostic tool for rubella.) Dr. Cruz informed Mrs. Blake that he was not delivering babies and advised her to see an obstetrician. On December 8, 1974 she saw Dr. Oh who immediately took blood samples to perform the titer test on that and one later date. The results were inconclusive because it was already beyond the appropriate testing period. Dessie Amindia Blake was born on July 3, 1975. The complaint in this case was filed Tuesday, July 5, 1977.

At two weeks of age Dessie was diagnosed as a rubella baby suffering from severe congenital defects. She has nerve deafness, with a 100% hearing loss in her right ear and a 75 decibel loss in her left ear. She wears two hearing aids and her speech is extremely limited. She has visual problems caused by scarring of the retina, a condition which causes vision to be cloudy and spotty, and for which there is no means of correction. She has heart malfunctions which involve deformities of both the valves and arteries and which will eventually require open heart surgery. At the age of three months Dessie was further diagnosed as being grossly hyptonic (Hyptonia is "[a] condition of abnormally diminished tone, tension, or activity." Dorland's Illustrated Medical Dictionary 717 (24th ed. 1965)), with poor head control, and suffering from motor retardation.

The family was forced to move from the rural atmosphere of Kamiah, Idaho to a metropolitan area of Ohio in order to have access to the type of special education and medical attention Dessie requires, as well as to be able to earn enough money to pay for her extraordinary needs. At the time the Blakes made the move, the only special education for the deaf available in Idaho was a residential school in southern Idaho, and Mr. and Mrs. Blake did not want to send their daughter away from home starting at age three, and lasting for the duration of her schooling. Mrs. Blake is a cosmetologist, and formerly ran a successful salon of her own on a full-time basis. Because of Dessie's needs, she is now able to work only one day per week, despite the family's crushing financial burdens.

Dessie requires constant therapy and must see a battery of doctors, therapists and other specialists. She has heart, eye and ear specialists, as well as an audiologist and speech therapist. She has already undergone eye surgery and will have to undergo her open heart surgery by the age of six. Her hearing aids must be replaced every two to three years at a minimum cost of $800, and she needs new ear molds and plugs every three to six months. Dessie attends special education classes for the deaf, but her learning capacity remains uncertain. Her parents have also had to attend classes and meetings themselves in order to learn how to communicate with Dessie and how to live with and rear a child with her disabilities.

Dessie's earning capacity is greatly diminished, and she can expect to continue to incur substantial medical and hospital expenses throughout her lifetime.

The Blakes contend that had Mrs. Blake been positively diagnosed as having rubella she would have had an abortion.

The procedural posture of this case is significant in determining this appeal. On motion for summary judgment, the facts are to be liberally construed in favor of the parties opposing the motion and those parties are to be given the benefit of all inferences which might reasonably be drawn from the evidence. Farmer's Insurance Company of Idaho v. Brown, 97 Idaho 380, 544 P.2d 1150 (1976).

Therefore, we must assume that: (1) Mrs. Blake did have rubella at the time of her examination by Dr. Cruz; (2) had a blood sample been taken by Dr. Cruz on the date of Mrs. Blake's visit to him, the proper tests would have established conclusively that she had rubella; (3) Dr. Cruz was negligent in his medical treatment of Mrs. Blake; and (4) had Mrs. Blake been positively diagnosed as having rubella she would have had the fetus aborted.

I WRONGFUL BIRTH

Wrongful birth is a cause of action in the family of an infant, which imposes liability on a defendant for damages and expenses incurred by the parents of a child born with birth defects when, but for the negligence of the defendant, the child would not have been conceived or carried to term. Annot., 83 A.L.R.3d 15 (1978). Its premise is that but for the negligence of the defendant, the child would not have been born.

In this type of action the parents of a child born with birth defects assert that the physician's negligence precluded their making an informed decision about whether to have a child, and that they would have avoided conception or terminated the pregnancy had they been properly advised of the risk of congenital impairment. E.g., Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 656 P.2d 483 (1983); Schroeder v. Perkel, 87 N.J. 53, 432 A.2d 834 (1981); Phillips v. United States, 508 F.Supp. 544 (D.S.C.1981) (Phillips II ); Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979). Recovery is therefore sought for the expenses of caring for the disabled child, and for the pain and suffering of the parents. Comment, "Wrongful Life": The Right Not To Be Born, 54 Tul.L.Rev. 480, 484 (1980). In considering the case authorities, it is helpful to distinguish a second, related type of action, generally brought by parents of a normal, healthy, but unplanned child. E.g., Sherlock v. Stillwater Clinic, 260 N.W.2d Recognition of a cause of action for wrongful birth is of relatively recent vintage. Public policy considerations (now discredited) which prevented its earlier recognition were discussed by the New Jersey Supreme Court in the landmark case of Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967), which denied liability. The first reason was based on the difficulty of measuring damages.

169 (Minn.1977); Coleman v. Garrison, 349 A.2d 8 (Del.1975); Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971). Some courts and commentators have distinguished this category of cases by denominating them "wrongful conception" or "wrongful pregnancy" cases. Phillips II, supra; Recent Developments, Washington Recognizes Wrongful Birth and Wrongful Life--A Critical Analysis, 58 Wash.L.Rev. 649 (1983).

In order to determine [the parents'] compensatory damages a court would have to evaluate the denial to them of the intangible, unmeasurable, and complex human benefits of motherhood and fatherhood and weigh these against the alleged emotional and money injuries. Such a proposed weighing is similar to that which we have found impossible to perform .... When the parents say their child should not have been born, they make it impossible for a court to measure their damages in being the mother and father of a defective child. 227 A.2d at 693.

The second reason given to justify denial of compensation was:

[e]ven [assuming] an abortion could [be] obtained without making its participants liable to criminal sanctions, substantial policy reasons prevent ... allowing tort damages for the denial of the opportunity to take an embryonic life. Id.

Changes in judicial attitude and the recognition of a woman's constitutionally protected right to obtain an abortion (in the first trimester of pregnancy at least) have led to a wholesale rejection of these arguments.

Considering the difficulty of measuring damages, the New Jersey court, twelve years after its decision in Gleitman stated that "to deny [parents] redress for their injuries merely because damages cannot be measured with precise exactitude would constitute a perversion of the fundamental principles of justice." Berman v. Allan, supra, 404 A.2d at 15 (allowing emotional damages).

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