Burke v. Rivo

• Decision Date: 01 March 1990
• Citation: 551 N.E.2d 1,406 Mass. 764
• Parties: , 89 A.L.R.4th 619 Carole BURKE et al. 1 v. Elliot RIVO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1

551 N.E.2d 1

406 Mass. 764, 89 A.L.R.4th 619

Carole BURKE et al. ¹ v. Elliot RIVO.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Sept. 13, 1989.

Decided March 1, 1990.

Nancy L. Dreher (Allan Green, Boston, with her), for plaintiffs.

John V. Woodard, Boston, for defendant.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

WILKINS, Justice.

A judge in the Superior Court reported to the Appeals Court pursuant to Mass.R.Civ.P. 64, 365 Mass. 831 (1974), the question of the proper measure of damages recoverable by the parents of a normal, healthy child who was conceived and born (1) following the defendant physician's alleged negligent performance of a sterilization procedure on the mother, and (2) following the physician's alleged guarantee that the sterilization procedure would prevent any future pregnancy. The case, which we transferred here on our own motion, presents an issue of first impression.

The parties entered into a statement of agreed facts in order to provide a basis for the report of the question of law concerning damages. Many of the so-called statements are recitations of the plaintiffs' allegations, not agreements as to facts. The parties have not agreed "as to all the material facts" in the case (rule 64), and thus a report of the case as one in which all material facts were established was not appropriate. The statement of agreed facts does not, for example, resolve the issue of liability on either the medical malpractice claim or on the guarantee claim.

We shall nevertheless answer the reported question, which is set out in the margin, ² because in a memorandum the judge has announced his view that certain items of damage would be recoverable and others would not be. The judge has thus in effect made an interlocutory ruling on what items of damage he would permit the plaintiffs to recover and has reported the propriety of that ruling pursuant to the second sentence of rule 64.

In December, 1983, the plaintiff Carole Burke met with the defendant physician to discuss her desire not to have more children. The Burke family was experiencing financial difficulties. She wanted to return to work to support her family and to fulfil her career goals. ³ The Burkes assert that the defendant recommended that Carole undergo a bipolar cauterization procedure and that he guaranteed that she would not again become pregnant if she did so. In February, 1984, the defendant performed a laparoscopic bilateral tubal ligation by bipolar cauterization.

On June 25, 1985, a pregnancy test confirmed that Carole was pregnant. On February 12, 1986, she gave birth to a fourth child, and the next day she underwent a second sterilization procedure, known as bilateral salpingectomy. A pathology report showed that there had been a recanalization of the left fallopian tube. The Burkes assert that, if the defendant had told Carole of the risk of recanalization, however small, she would initially have selected a different sterilization procedure.

The judge has only reported questions concerning damages. He has presumably concluded that a physician may properly be held liable if his negligent performance of a sterilization procedure permits conception. Presumably the judge also accepts as a valid potential basis of liability that, as alleged in the complaint, the defendant negligently failed to advise the Burkes of the risk that the operation might not achieve its purpose. The matters of liability are, however, not before us, and remain to be proved.

We do, however, disagree with the defendant's argument that we need not answer the question. We reject his arguments that in Massachusetts there should be no liability for negligently performing a sterilization procedure when the result is the conception of a child; no liability for negligently failing to advise a patient of the risks of conceiving a child following a particular sterilization operation (where the patient, properly informed, would have selected a different and more certain sterilization operation); and no liability for breach of a guarantee that following a sterilization procedure there would be no further pregnancy.

The great weight of authority permits the parents of a normal child born as a result of a physician's negligence to recover damages directly associated with the birth (sometimes including damage for the parents' emotional distress), but courts are divided on whether the parents may recover the economic expense of rearing the child. See Boone v. Mullendore, 416 So.2d 718, 721 (Ala.1982) (damages include physical pain and suffering and mental anguish of mother, husband's loss of consortium, and medical expenses of pregnancy, but not child-rearing expenses); Wilbur v. Kerr, 275 Ark. 239, 244, 628 S.W.2d 568 (1982) (all "proper damages" connected with failed vasectomy and unwanted pregnancy recoverable, but for reasons of public policy not expenses of rearing child); Coleman v. Garrison, 349 A.2d 8, 11 n. 5, 13-14 (Del.1975) (pregnancy-related damage allowed below and not challenged on appeal; no liability for rearing and educating child); Flowers v. District of Columbia, 478 A.2d 1073, 1074, 1077-1078 (D.C.1984) (recovery of medical expenses, pain and suffering, and lost wages during pregnancy; wages lost after birth until mother returned to work; and cost of a properly performed tubal ligation, allowed below and not challenged on appeal; child-rearing costs not recoverable); Public Health Trust v. Brown, 388 So.2d 1084, 1085 (Fla.Dist.Ct.App.1980) (damages for medical expenses, lost wages, and pain and suffering caused by unwanted pregnancy not appealed; reasonable cost of rearing child offset by the value of the child's companionship not recognized); Cockrum v. Baumgartner, 95 Ill.2d 193, 200-201, 69 Ill.Dec. 168, 447 N.E.2d 385, cert. denied, 464 U.S. 846, 104 S.Ct. 149, 78 L.Ed.2d 139 (1983) (child-rearing expenses not recoverable); Nanke v. Napier, 346 N.W.2d 520, 522 (Iowa 1984) (same); Schork v. Huber, 648 S.W.2d 861, 863 (Ky.1983) (same); Macomber v. Dillman, 505 A.2d 810, 813 (Me.1986) (medical expenses of pregnancy and sterilization, mother's pain and suffering, mother's lost earnings, husband's loss of consortium, recoverable, but child-rearing costs not recoverable); Kingsbury v. Smith, 122 N.H. 237, 242-243, 442 A.2d 1003 (1982) (recovery limited to medical expenses, cost of sterilization, pain and suffering of the pregnancy, mother's lost wages, husband's loss of consortium); Mason v. Western Pa. Hosp., 499 Pa. 484, 486-487, 453 A.2d 974 (1982) (tort and contract recovery for medical expenses and lost wages related to prenatal care, delivery, and postnatal care, and associated pain and suffering; no recovery for financial and emotional costs of child-rearing); Smith v. Gore, 728 S.W.2d 738, 751 (Tenn.1987) (allowing recovery for medical expenses, recovery, delivery, pain and suffering, and emotional distress during pregnancy but not child-rearing costs); McKernan v. Aasheim, 102 Wash.2d 411, 419-421, 687 P.2d 850 (1984) (pain and suffering, loss of consortium, expenses of failed sterilization procedure and child birth, but not child-rearing expenses, recoverable); James G. v. Caserta, 332 S.E.2d 872, 876-878 (W.Va.1985) (medical expenses of unsuccessful sterilization, childbirth, subsequent sterilization operation; wife's pain and suffering; loss of consortium recoverable, but not child-rearing expenses); Rieck v. Medical Protective Co., 64 Wis.2d 514, 518-519, 219 N.W.2d 242 (1974) (no recovery for child-rearing costs); Beardsley v. Wierdsma, 650 P.2d 288, 292 (Wyo.1982) (various pregnancy and sterilization related expenses, but not child-rearing expenses, recoverable). Contrast Szekeres v. Robinson, 102 Nev. 93, 95, 715 P.2d 1076 (1986) (no tort liability for any expenses incurred as result of allegedly negligent sterilization operation; contract liability for, at least, cost of failed surgery, recognized). ⁴

The judge below recognized that damages properly would include the cost of the unsuccessful sterilization procedure and costs directly flowing from the pregnancy: the wife's lost earning capacity; medical expenses of the delivery and care following the birth; the cost of care for the other children while the wife was incapacitated; the cost of the second sterilization procedure and any expenses flowing from that operation; and the husband's loss of consortium. We would add the wife's pain and suffering in connection with the pregnancy and birth and with the second sterilization procedure. We also see no reason why the plaintiffs should not recover for emotional distress they sustained as a result of the unwanted pregnancy. Emotional distress could be the probable consequence of a breach of the duty the defendant owed directly to the plaintiffs. See Gallagher v. Duke Univ., 852 F.2d 773, 778-779 (4th Cir.1988); Fassoulas v. Ramey, 450 So.2d 822, 823 (Fla.1984); Smith v. Gore, 728 S.W.2d 738, 751-752 (Tenn.1987); Naccash v. Burger, 223 Va. 406, 290 S.E.2d 825, 831 (1982).

The principal issue is whether the plaintiffs are entitled, if they establish liability, to the cost of raising their child. Under normal tort and contract principles, that cost is both a reasonably foreseeable and a natural and probable consequence of the wrongs that the plaintiffs allege. The question is whether there is any public policy consideration to which we should give effect to limit traditional tort and contract damages. We conclude that there is none as to parents who have elected sterlization for economic reasons.

Many justifications often relied on for declining to allow recovery of the cost of rearing a healthy child born as a result of a physician's negligence are outstandingly unimpressive. See Note, Judicial Limitations on Damages Recoverable for the Wrongful Birth of a Healthy Infant, 68 Va.L.Rev. 1311, 1315-1323 (1982). The judicial declaration that the joy and pride in...