Boone v. Mullendore

• Decision Date: 30 June 1982
• Citation: 416 So.2d 718
• Parties: Repsie Rhea BOONE v. Dr. M. M. MULLENDORE. 80-423.
• Court: Alabama Supreme Court

Page 718

416 So.2d 718

Repsie Rhea BOONE v. Dr. M. M. MULLENDORE.

80-423.

Supreme Court of Alabama.

June 30, 1982.

M. Clay Alspaugh of Hogan, Smith & Alspaugh, Birmingham, for appellant.

William M. Bouldin of Guin, Bouldin, Porch & Alexander, Russellville, for appellee.

John T. Mooresmith, Mobile, for amicus curiae Medical Ass'n of the State of Ala.

TORBERT, Chief Justice.

This is a medical malpractice case wherein the trial court granted summary judgment in favor of the defendant on the ground that plaintiff, Repsie Rhea Boone, is limited in her recovery of damages to the amount of the settlement with the hospital measured in terms of her actual medical expenses incurred in giving birth. Mrs. Boone appeals and we reverse.

In 1976, Repsie Rhea Boone visited Dr. M. M. Mullendore, complaining of cramps and bloating in her abdomen. On July 6, 1976, Mrs. Boone was admitted to Colbert County Hospital for exploratory surgery. During the surgery, Dr. Mullendore discovered and removed cysts in Mrs. Boone's Fallopian tubes and ovaries. After the surgery, Dr. Mullendore dictated an operative summary and procedure that stated that "the left and right [Fallopian] tubes were removed." Additionally, the plaintiff also alleges that Dr. Mullendore informed her that her Fallopian tubes had been removed and that she was sterile. As a result of this representation, Mrs. Boone did not use contraceptive methods. She became pregnant, however, and in April 1978 delivered a healthy child.

The Boones brought suit against Colbert County Hospital and Dr. Mullendore for negligently representing that her Fallopian tubes had been removed and that she was sterile, or, in the alternative, for negligent failure to remove the Fallopian tubes. Mrs. Boone sought compensatory damages for medical expenses and costs reasonably incurred in the rearing of the child. At the pretrial hearing, Mr. Boone withdrew as a party plaintiff and following the pre-trial hearing, Mrs. Boone reached a pro tanto settlement with the hospital for $1,500.00, which was conceded to be the amount of her medical expenses. Subsequently, Dr. Mullendore moved for, and the trial court granted, a summary judgment on the ground that, as a matter of law, Mrs. Boone could not recover more than the settlement amount for actual medical expenses incurred in giving birth. This appeal followed.

The issue on appeal is what damages may be recovered by a parent as a result of the negligent treatment, or the negligent misrepresentation of a doctor that the parent is incapable of having children. For the reasons set forth below, we hold that the trial court erred in limiting damages to out-of-pocket medical expenses.

Mrs. Boone contends that a health care provider should be subject to liability in damages for negligence that results in the wrongful birth of a child. At this point, it will be helpful to make distinctions in the terminology used by the parties. A claim for "wrongful birth" is one brought against a physician who "failed to inform parents of the increased possibility that the mother would give birth to a child suffering from birth defects ... [thereby providing] an informed decision about whether to have a child." Phillips v. United States, 508 F.Supp. 544, 545 n.1 (D.S.C.1981) (quoting Comment, 8 Hofstra L.Rev. 257, 257-58 (1979)). A claim for "wrongful life" is one by which a child seeks recovery for being born with infirmities. See, Elliot v. Brown, 361 So.2d 546 (Ala.1978), wherein this Court refused to recognize a cause of action for "wrongful life." This case is, instead, more suited to a traditional medical malpractice, negligence action. In the court below, the plaintiff alleged that Dr. Mullendore was negligent in failing to remove her Fallopian tubes or, in the alternative, was negligent in representing that her Fallopian tubes had been removed and that she was sterile. Some jurisdictions have defined actions of this type as an action for "wrongful pregnancy."

The present action, therefore, is focused upon the issue of whether Dr. Mullendore negligently performed surgery upon Mrs. Boone and made misrepresentations to her as to her future capability to conceive a child, thus causing her to rely upon such statements and to become pregnant. A number of courts have been faced with this issue. See, Phillips v. United States, 508 F.Supp. 544 (D.S.C.1981); Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463 (1967); Coleman v. Garrison, 349 A.2d 8 (Del.1975); Wilczynski v. Goodman, 73 Ill.App.3d 51, 29 Ill.Dec. 216, 391 N.E.2d 479 (1979); Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977); Betancourt v. Gaylor, 136 N.J.Super. 69, 344 A.2d 336 (1965); Speck v. Finegold, 268 Pa.Super. 342, 408 A.2d 496 (1979); Terrell v. Garcia, 496 S.W.2d 124 (Tex.Civ.App.1973), cert. denied, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974); Rieck v. Medical Protective Co., 64 Wis.2d 514, 219 N.W.2d 242 (1974).

In Alabama, in order to state a cause of action for negligence, the plaintiff must show that the defendant has a legal duty, that the defendant has breached that duty, that the defendant's breach proximately caused an injury, and that damages have resulted to the plaintiff. Quillen v. Quillen, 388 So.2d 985 (Ala.1980). It is also the law in Alabama that a physician owes a duty to exercise reasonable care in the treatment of his or her patients. Code 1975, § 6-5-484(a). Therefore, if proven, the negligent misrepresentation of the nature of the surgery and/or such negligent performance of that surgery as would wrongfully cause a patient to become pregnant would be a breach of that duty.

Since the trial court granted the defendant's motion for summary judgment, we must initially state that the party moving for summary judgment must be entitled to a judgment as a matter of law, Fountain v. Phillips, 404 So.2d 614 (Ala.1981); Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981), with all reasonable inferences concerning issues of material fact to be drawn in favor of the non-moving party. Papastefan v. B & L Construction Co., 356 So.2d 158 (Ala.1978). Assuming, without deciding, that the first three elements for a cause of action for negligence are met, the issue becomes whether the trial court erred in holding that Mrs. Boone could not recover more than the $1,500.00 in medical expenses paid to her by the hospital. We hold that the trial court erred in granting Dr. Mullendore's motion for summary judgment on the issue of damages.

Among the difficult issues in an action of this type is the measure of damages to be ascertained. Several theories have been proposed by other courts and by the parties to this action. Dr. Mullendore urges this Court to find that, as a matter of law, the benefits accruing to the parents of a healthy child outweigh the economic and emotional detriment of having an unwanted, unanticipated child. See, e.g., Terrell v. Garcia, 496 S.W.2d 124 (Tex.Civ.App.1973), cert. denied, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974); Rieck v. Medical Protective Co., 64 Wis.2d 514, 219 N.W.2d 242 (1974). Under this theory the holding of the trial court would have to be affirmed.

In California, it has been held that all costs and expenses of rearing such a child, and also emotional distress, are recoverable. Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463 (1967). A third view of damages is that the parents may recover only damages for pregnancy-related costs and expenses, and damages for pain and suffering. Wilbur v. Kerr, Ark., 628 S.W.2d 568 (1982); Coleman v. Garrison, 349 A.2d 8 (Del.1975).

The fourth view of damages, which is urged by the appellant, is known as the "benefit" rule of damages. Under the "benefit" rule, parents may recover for damages proximately caused by the physician's negligence, including pregnancy-related expenses and the economic damages to the family resulting from the birth and rearing of the additional child. These damages may be offset, however, by the benefits accruing to the family as a result of the child's birth. Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977). See also, Restatement (Second) of Torts, § 920 (1977). Mrs. Boone contends that the losses and benefits resulting from a wrongful pregnancy are relatively tangible and are measurable factors for the jury to consider separately. We cannot agree.

Today, we adopt as the measure of damages in an action of this type essentially the standard set out in Coleman v. Garrison, 327 A.2d 757 (Del.Super.Ct.1974), aff'd, 349 A.2d 8 (Del.1975). This Court believes that damages should be limited to the actual expenses and the injury attending the unexpected pregnancy. Thus, the damages recoverable would include: (1) The physical pain and suffering, and mental anguish of the mother as a result of her pregnancy; (2) the loss to the husband of the comfort, companionship, services, and consortium of the wife during her pregnancy and immediately after the birth; and (3) the medical expenses incurred by the parents as a result of the pregnancy. Any additional damages would tend to be extremely speculative in nature, and awarding such damages could have a significant impact on the stability of the family unit and the subject child.

As indicated, numerous courts have addressed these issues in recent years and have come to various conclusions. A large number, however, have held that for public policy and other reasons the expenses of rearing a child to the age of majority should be denied. Wilbur v. Kerr, Ark., 628 S.W.2d 568 (1982); Coleman v. Garrison, 327 A.2d 757 (Del.Super.Ct.1974), aff'd, 349 A.2d 8 (Del.1975); Wilczynski v. Goodman, 73 Ill.App.3d 51, 29 Ill.Dec. 216, 391 N.E.2d 479 (1979); Stewart v. Long Island College Hospital, 35 A.D.2d 531, 313 N.Y.S.2d 502 (1970), aff'd, 30 N.Y.2d 695, 283 N.E.2d 616, 332 N.Y.S.2d 640 (1972); Hays v. Hall, 477 S.W.2d 402 (Tex.Civ.App.1972); ...