Byrd v. Wesley Medical Center

• Decision Date: 10 May 1985
• Docket Number: No. 56718,56718
• Citation: 237 Kan. 215,699 P.2d 459
• Parties: Ella M. BYRD, Appellant, v. WESLEY MEDICAL CENTER, Appellee.
• Court: Kansas Supreme Court

Page 459

699 P.2d 459

237 Kan. 215

Ella M. BYRD, Appellant, v. WESLEY MEDICAL CENTER, Appellee.

No. 56718.

Supreme Court of Kansas.

May 10, 1985.

Syllabus by the Court

1. When a normal, healthy child is born to a mother upon whom an unsuccessful sterilization procedure has been performed, the mother, in a medical negligence action against those who attempted the sterilization, may not recover as damages the projected cost of rearing and educating the child.

2. Under the public policy of this state, a parent cannot be said to be damaged by the birth of a normal, healthy child.

M. Ralph Baehr of Nieto, Baehr & Hollander, Wichita, argued the cause and was on brief for appellant.

Jerry G. Elliott of Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause and was on brief for appellee.

MILLER, Justice:

When a normal, healthy child is born to a mother upon whom an unsuccessful sterilization procedure has been performed, are the costs of rearing and educating the child items of damage which are recoverable in a medical negligence action? That is the primary question posed in this proceeding.

Perhaps for clarity we should point out that we are not concerned here with the ordinary damages arising from a claim of medical malpractice in the performance of a sterilization operation--the expense of the unsuccessful operation, the pain and suffering of the patient, any medical complications caused by the unsuccessful sterilization or by the pregnancy, the costs of delivery, lost wages, or loss of consortium. Likewise, we are not concerned here with an unsuccessful sterilization proceeding followed by the birth of a mentally retarded or physically handicapped child. Our concern here is only with one item of damages claimed when it is alleged that a sterilization procedure was negligently performed, and that thereafter a normal, healthy child was born to the "sterilized" parent. Should the parent be permitted to recover as damages the full cost of rearing the child? That is the issue.

Plaintiff Ella M. Byrd underwent tubal ligation at Wesley Medical Center (hereafter, the hospital) in Wichita. The surgery was performed by Dr. Darrel Neuschafer and Dr. Truman Grauel. One purpose of the operation was to prevent plaintiff from having any more children. The operation, however, was unsuccessful, and plaintiff later became pregnant and delivered a normal, healthy child. She then filed this action against the hospital and the surgeons, alleging that the surgery was negligently performed. She sought damages, including the cost of rearing her child to majority. At the district court level, plaintiff dismissed as against the physicians, and the hospital remains the sole defendant.

The trial court partially sustained the hospital's motion for summary judgment, ruling that plaintiff could not recover as damages the projected costs of rearing her unplanned child. The trial judge, in announcing his decision, said:

"The primary issues that result as a consequence of this action are as follows: Does plaintiff's petition state a cause of action, and if so what damages may the plaintiff recover, assuming the defendant negligently performed a sterilization procedure resulting in plaintiff's pregnancy and the birth of a normal, healthy child? I understand that these issues have never before been addressed by the appellate courts of this state. There would seem little question but that the Kansas law, as is the fact in most other states, would recognize at least some types of damage which result from an unwanted procreation caused by the negligence of another, and that there then is a valid cause of action. See University of Arizona v. Superior Court , 667 P.2d 1294, 1297 (Arizona, 1983); Phillips v. United States, 508 F.Supp. 544, 549 (United States District Court for the District of South Carolina, 1980). The real question is what is the nature of the damages which may be recovered? There are primarily three views.

"The first view is that the parents may recover only those damages which occur as a result of pregnancy and birth, and may not recover the costs of rearing the child. Boone v. Mullendore, 416 So.2d 718, 721 (Alabama, 1982); Cockrum v. Baumgartner [95 Ill.2d 193, 69 Ill.Dec. 168, 173-174], 447 N.E.2d 385, 390-391 ( [Illinois] 1983).

"A second view allows the parents to recover all damages and expenses mentioned above, but also includes the costs of [rearing] a child. This is often called the 'full damage rule' and has been adopted by a minority of the courts. See Custodio v. Bauer, 59 Cal.Rptr. 463, 477 (1967).

"A third view, sometimes called the ordinary 'tort-benefit rule' allows the recovery of all damages covered in the above two views, but requires a deduction for the benefits that the parents will receive by virtue of having a normal, healthy child. Troppi v. Scarf , 187 N.W.2d 511, 519 (Michigan [Appeals], 1971); Sherlock v. Stillwater Clinic, 260 N.W.2d 169, 175-176 (Minnesota, 1977); University of Arizona v. Superior Court, supra.

"All three views present significant and challenging arguments that rest on a foundation of public policy. The rationale which denies damages for the rearing of a child to the age of majority appears to me to be the most persuasive. Some of the arguments of those that hold this view are as follows: In Boone v. Mullendore, supra, it is stated 'The cornerstone of this denial is the idea that a normal, healthy life should not be the basis for a compensable wrong.' To permit the parents to keep their child and shift the entire costs of its upbringing to the negligent health care provider would result in a penalty wholly out of proportion to the culpability involved. See White v. United States, 510 F.Supp. 146, 150 (United States District Court for the District of Kansas [1981].

"In Boone v. Mullendore, supra, the Court stated, 'The birth of a healthy child and the joy and pride in rearing that child are benefits on which no price tag can be placed. This joy far outweighs any economic loss that might be suffered by the parents.' See Wilbur v. Kerr , 628 S.W.2d 568 (Arkansas, 1982).

"As stated in Terrell v. Garcia, 496 S.W.2d 124 (Texas [App.], 1973), when the Texas Court addressed itself to the problems of the benefits rule, 'Irrespective of the public policy view, adoption of the benefits rule as suggested by Troppi would present unsurmountable problems of proof under our present standards of proof of damages. Proof could undoubtedly be offered regarding the costs of care and maintenance of a hypothetical child, although the standard of living and the extent of education to be provided such child would undoubtedly require considerable conjecture and speculation by the trier of facts.' The benefits rule would result in highly speculative assessments of damages and would cause great emotional impact not only upon the child but upon all members of the family. See Wilbur v. Kerr, supra. The benefits rule makes it to the parents' advantage to emphasize their problems with the child. It attacks the family unit. See Doerr v. Villate , 220 N.E.2d 767 (Illinois Court of Appeals, 1966). Under the benefits rule, a problem arises as to who shall control the money recovered, the parents as they see fit, or some special guardian to see that the money actually goes to the child. See Boone v. Mullendore, supra.

"Perhaps the most revealing rationale is given in Wilbur v. Kerr, supra, when it is stated [628 S.W.2d] at page 571 that 'We are persuaded for several reasons to follow those courts which have declined to grant damages for the expenses of [rearing] a child. It is a question which meddles with the concept of life and the stability of the family unit. Litigation cannot answer every question. Every question cannot be answered in terms of dollars and cents. We are also convinced that the damage to the child will be significant. That being an unwanted or "emotional bastard" who will someday learn that its parents did not want it, and, in fact, went to Court to force someone else to pay for its [rearing] will be harmful to that child. It will undermine society's need for a strong and healthy family relationship.'

"I hold that, as a matter of law, plaintiff may not recover damages for the costs of [rearing] her healthy and normal child to majority. However, upon a finding of negligence, a jury may consider damages for plaintiff's physical and emotional distress and costs of medical services ...."

From this ruling plaintiff brings this interlocutory appeal.

We agree with the trial judge that there are three views: (1) The no recovery rule: the parent may not recover the costs of rearing the child; (2) the full recovery rule: the parent may recover all costs of rearing the child; and (3) the "benefits" rule: the parent may recover the costs of rearing the child, less the benefits the parent will receive from having a normal, healthy child.

The full recovery rule has little support. In the case of Bowman v. Davis, 48 Ohio St.2d 41, 356 N.E.2d 496 (1976), cited in support of the rule, the opinion makes clear that the Ohio Supreme Court was called upon to determine, and that it decided, only two issues: that the sterilization consent form signed by the patient did not relieve the surgeon and the hospital of liability, and that a damage action based upon a negligently performed and unsuccessful sterilization procedure is not against public policy. The plaintiffs brought suit for damages, including the costs of rearing the unplanned children, twins born after the unsuccessful operation. Plaintiffs apparently recovered "rearing costs" in the lower court. The Ohio Supreme Court, in a footnote to its opinion, says:

"A third issue, that appellees' damages should be limited to the expenses of the pregnancy after a negligently performed sterilization, was not raised at the appellate level. To the extent that this issue is not settled in our discussion of appellant's other propositions of...