Bruggeman By and Through Bruggeman v. Schimke, 58565

• Citation: 239 Kan. 245,718 P.2d 635
• Decision Date: 02 May 1986
• Docket Number: No. 58565,58565
• Parties: Andrew John BRUGGEMAN, a minor By and Through his natural mother and next friend, Gina Marie BRUGGEMAN, Appellant, v. Robert Neil SCHIMKE, M.D., State of Kansas, State Board of Regents and University of Kansas Medical Center, Appellees.
• Court: United States State Supreme Court of Kansas

Page 635

718 P.2d 635

239 Kan. 245

Andrew John BRUGGEMAN, a minor By and Through his natural mother and next friend, Gina Marie BRUGGEMAN, Appellant, v. Robert Neil SCHIMKE, M.D., State of Kansas, State Board of

Regents and University of Kansas Medical Center, Appellees.

No. 58565.

Supreme Court of Kansas.

May 2, 1986.

Syllabus by the Court

1. Wrongful pregnancy refers to those cases where parents of a healthy child bring a claim on their own behalf for the monetary and emotional damages they suffered as a result of giving birth to an unwanted child.

2. Wrongful birth claims are brought by parents who claim that they would have avoided conception or terminated the pregnancy had they been properly advised of the risks of birth defects to the potential child.

3. Wrongful life actions are suits brought by the impaired child. The child alleges that but for the defendant doctor or health care provider's negligent advice to, or treatment of, the parents, the child would not have been born.

4. A cause of action for "wrongful life" is not recognized in Kansas.

Michael E. Callen, of Callen, Sexton & Shelor, Kansas City, argued and was on brief, for appellant.

Carol R. Gilham, of Blackwell Sanders Matheny Weary and Lombardi, argued and Thomas W. Wagstaff, Kansas City, Mo., and Michaela N. Nicolarsen, Overland Park, were with her on brief, for appellee Robert Neil Schimke, M.D.

Mary Beth Blake, of Holbrook and Ellis, P.A., Kansas City, argued and was on brief for appellees State, State Bd. of Regents and University of Kansas Medical Center.

MILLER, Justice:

This is an action for damages for "wrongful life," brought by a three-year-old boy against a physician, Robert Neil Schimke; the State of Kansas; the State Board of Regents; and the Kansas University Medical Center. The plaintiff, Andrew John Bruggeman, appeals from an order of the district court of Wyandotte County sustaining defendants' motions to dismiss for failure to state a claim upon which relief can be granted under Kansas law, K.S.A. 60-212(b)(6).

The record in this case consists of the petition, the answers of the defendants, the motions to dismiss, and the court's ruling thereon. There has been no discovery and there is nothing to indicate that any factual matters outside the pleadings were presented to or considered by the trial court.

The petition, in substance, alleges that in 1979 plaintiff's mother gave birth to a daughter, Amy, who was born with multiple congenital anomalies. Plaintiff's mother and father then sought genetic counseling at the University of Kansas Medical Center in regard to the risk of birth defects or hereditable impairments in future children. They were advised by the defendants that Amy's condition was not due to a known chromosomal or measurable biochemical disorder. Defendants were negligent in so advising plaintiff's parents. The parents relied upon the advice and, but for the inadequate and negligent counseling, plaintiff would not have been born to experience the pain and suffering attributable to his genetic deformities. Plaintiff claims that as a result of defendants' negligence plaintiff has been caused to suffer, and will suffer in the future, injuries, pain and mental anguish as a result of being born as an impaired person, and that he has incurred and will incur in the future extraordinary expenses for medical, surgical, nursing and hospital services.

The trial court, in a comprehensive memorandum, reviewed cases from other jurisdictions and current articles in legal and medical journals on the subject. There is no Kansas case directly in point. The court concluded that a geneticist who has been consulted on the question of possible hereditary or congenital defects occurring in a second child owes a duty to his patients, which duty extends to yet unborn children of the patients, to exercise reasonable care. Whether the duty exists, the court held, was a question of law which the court decided in the affirmative. Whether the defendants had breached that duty was a question of fact, but for the purpose of ruling upon the motion the court held the allegations of the petition were sufficient. On the issue of causation, however, the court observed that the infant plaintiff does not claim that the defendants caused his defects. His claim is that they caused his birth and his life, when they knew or should have known that he would be born with congenital defects. The court said:

"Being born is not a compensable injury. Being born with a defect is not compensable unless the defect is caused by another's negligence. This plaintiff's claim is based on his being born with a defect, and that the defendants are negligent in not preventing his birth. There is no claim that defendants' negligence caused his defect, only that the negligence caused his birth.

"The question of causation is one of fact, and under most circumstances, a question for the jury. Only where the causation question could not cause reasonable men to differ does it become a question of law.

"The court concludes that while the petition states a cause of action for the breach of a duty owed to this infant plaintiff, it fails to do so on causation and damages.

"While the averments establish for the purpose of the motion that defendants are negligent, there is no connection between that negligence and the plaintiff's defect. There is no right not to be born.

"Damages for the defect are not assessable against the defendants since their negligence is not the proximate cause of the damages, and damages for being born and achieving life itself are contrary to public policy."

Our scope of review, where the trial court has sustained a motion to dismiss, is concisely defined in Knight v. Neodesha Police Dept., 5 Kan.App.2d 472, 620 P.2d 837 (1980):

"When a motion to dismiss under K.S.A. 60-212(b )(6) raises an issue concerning the legal sufficiency of a claim, the question must be decided from the well-pleaded facts of plaintiff's petition. The motion in such case may be treated as the modern equivalent of a demurrer." Syl. p 1.

"Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff's favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim." Syl. p 2.

"In considering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiff's description of that which occurred, along with any inferences reasonably to be drawn therefrom. However, this does not mean the court is required to accept conclusory allegations on the legal effects of events the plaintiff has set out if these allegations do not reasonably follow from the description of what happened, or if these allegations are contradicted by the description itself." Syl. p 3.

See also Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, 413-14, 479 P.2d 875 (1971).

The court also stated in Knight:

"It is not necessary to spell out a legal theory for relief so long as an opponent is apprised of the facts that entitle the plaintiff to relief. Febert v. Upland Mutual Ins. Co., 222 Kan. 197, 199, 563 P.2d 467 (1977). The court is under a duty to examine the petition to determine whether its allegations state a claim for relief on any possible theory. Monroe v. Darr, 214 Kan. 426, Syl. p 3, 520 P.2d 1197 (1974)." 5 Kan.App.2d at 475, 620 P.2d 837.

We turn now to the issue before us, whether an action for damages for "wrongful life" should be recognized in Kansas. There are three causes of action which should first be defined and distinguished. These are "wrongful pregnancy," "wrongful birth," and "wrongful life." These are discussed and distinguished in the recent Colorado Court of Appeals case, Continental Cas. Co. v. Empire Cas. Co., 713 P.2d 384 (Colo.App.1985), where the court says:

"At the outset, wrongful life must be distinguished from other birth-related claims with which it is often confused, namely 'wrongful pregnancy,' and 'wrongful birth.' Wrongful pregnancy refers to those cases where parents of a healthy child bring a claim on their own behalf for the monetary and emotional damages they suffered as a result of giving birth to an unwanted child. Wrongful birth claims are brought by parents who claim that they would have avoided conception or terminated the pregnancy had they been properly advised of the risks of birth defects to the potential child. These parents seek recovery for their expenses in caring for the deformed child, and for their own pain and suffering. Wrongful pregnancy actions typically involve a healthy, but unwanted child, whereas wrongful birth actions usually involve planned children who are born deformed. Both actions, however, are brought by the parents on their own behalf. Comment, ' "Wrongful Life": The Right Not to be Born,' 54 Tul.L.Rev. 480 (1980).

"Wrongful life actions, on the other hand, are suits brought by the impaired child. The child alleges that but for the defendant doctor or health care providers' negligent advice to, or treatment of, the parents, the child would not have been born. Comment, ' "Wrongful Life": The Right Not To Be Born,' supra. The essence of the child's claim is that the defendants wrongfully deprived the parents of information which would have prevented the child's birth. Azzolino v. Dingfelder, 71 N.C.App. 289, 322 S.E.2d 567 (1984). In a wrongful life claim,

'The child does not allege that the physician's negligence caused the child's deformity. Rather, the claim is that the physician's negligence--his failure to adequately inform the parents of the risk--has caused the birth of the deformed child. The child argues that but for the...