C.S. v. Nielson, 870039

CourtSupreme Court of Utah
Citation767 P.2d 504
Docket NumberNo. 870039,870039
PartiesC.S., Plaintiff and Appellant, v. Norman NIELSON, M.D., Defendant and Appellee.
Decision Date06 December 1988

Page 504

767 P.2d 504
C.S., Plaintiff and Appellant,
Norman NIELSON, M.D., Defendant and Appellee.
No. 870039.
Supreme Court of Utah.
Dec. 6, 1988.

Page 505

Jay V. Barney, Phillip B. Shell, Murray, for plaintiff and appellant.

J. Anthony Eyre, J. Mark Whimpey, Salt Lake City, for defendant and appellee.

HALL, Chief Justice:

The United States District Court for the District of Utah certified two questions of law to this Court under rule 41 of our Court rules. 1 The parties to the pending federal court action have submitted briefs setting forth their positions on these certified questions:

1. Does a claim for "wrongful pregnancy" resulting in the birth of a normal, healthy child as a result of an unsuccessful sterilization procedure performed by a physician give rise to a tort claim for damages under the laws of the State of Utah?

2. In the event a tort claim for "wrongful pregnancy" is recognized by the laws of the State of Utah, what is the appropriate measure of damages?

I. Facts

The facts accompanying the certified questions indicate that defendant performed a tubal ligation procedure (a severance of the fallopian tubes for sterilization) on plaintiff. 2 Subsequently, plaintiff became pregnant and gave birth to a normal and healthy child. Plaintiff now contends that defendant was negligent in not informing her that the procedure was not "absolute in nature" and that alternative sterilization procedures were available with varying success rates. Plaintiff's assertion of damages includes claims for medical expenses incurred during her pregnancy and the birth of the child, medical expenses

Page 506

involved in having a hysterectomy performed subsequent to the birth of the child, "emotional trauma" during and after the pregnancy because of her concerns that the child may inherit "plaintiff's psychiatric problems," pain and suffering, and the costs of "rearing an unplanned child." The only issues before us are whether Utah recognizes this cause of action and, if so, the extent of the recoverable damages.

II. Nature of the Action

Initially, "wrongful pregnancy" must be distinguished from the related claims of "wrongful birth" and "wrongful life." "Wrongful pregnancy," or "wrongful conception" as it is occasionally termed, refers to those cases where parents bring a claim on their own behalf for the monetary and emotional damages they suffered as a result of giving birth to a normal and healthy but unplanned and unwanted child. Such actions are usually based upon a negligently performed or counseled sterilization procedure or abortion, or negligence in preparing or dispensing a contraceptive prescription. 3

"Wrongful birth," on the other hand, refers to the cause of action whereby parents claim they would have avoided conception or terminated an existing pregnancy by abortion but for the negligence of those charged with, among other things, prenatal testing or counseling as to the likelihood of giving birth to a physically or mentally impaired child. 4 "Wrongful life" is the corresponding action by or on behalf of an impaired child alleging that but for the medical professional's negligence, the child would not have been born to experience the pain and suffering associated with his or her affliction or impairment. 5

Given these distinctions, the instant case is correctly viewed as involving a wrongful pregnancy cause of action. A vast majority of jurisdictions recognize that a cause of action for wrongful pregnancy exists in tort. 6 Courts essentially view wrongful pregnancy actions as indistinguishable from ordinary medical malpractice actions where a plaintiff alleges a physician's breach of duty and injury resulting therefrom. 7 Indeed, much of the analytical reasoning utilized in these cases revolves around the fact that if the physician has

Page 507

negligently performed a sterilization operation, he or she has breached a duty to the patient, and from a proximate cause standpoint, it is foreseeable that a child will be born and the parents will incur damages as a result of this negligence. 8 The court in Boone v. Mullendore 9 summarized this view:
I]n 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. 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. 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. 10

This statement and the rationale underlying the majority view are in accord with established principles of negligence theory 11 and our general law regarding proof of malpractice as set out in Schmidt v. Intermountain Health Care, Inc.: 12 "In order to recover for the negligence of a medical practitioner, a plaintiff must prove that (1) there was negligence and (2) the negligence was a proximate cause of the plaintiff's injury." 13 This view is also in keeping with the statutory requirements which a patient must prove in order to recover damages from a health care provider for failure to obtain informed consent. Utah Code Ann. § 78-14-5(1) (1987) lists these requirements:

For a patient to recover damages from a health care provider in an action based upon the provider's failure to obtain informed consent, the patient must prove the following:

(a) that a provider-patient relationship existed between the patient and health care provider; and

(b) the health care provider rendered health care to the patient; and

(c) the patient suffered personal injuries arising out of the health care rendered; and

(d) the health care rendered carried with it a substantial and significant risk of causing the patient serious harm; and

(e) the patient was not informed of the substantial and significant risk; and

(f) a reasonable, prudent person in the patient's position would not have consented to the health care rendered after having been fully informed as to all facts relevant to the decision to give consent. In determining what a reasonable, prudent person in the patient's position would do under the circumstances, the trier of fact shall use the viewpoint of the patient before health care was provided and before the occurrence of any personal injuries alleged to have arisen from said care; and

(g) the unauthorized part of the health care rendered was the proximate cause of personal injuries suffered by the patient. 14

Defendant, however, argues that plaintiff's claim is barred by Utah Code Ann. §§ 78-11-23 through -25 (1987). We disagree. Those sections provide:

78-11-23. Right to life--State policy.

The Legislature finds and declares that it is the public policy of this state to encourage all persons to respect the right to life of all other persons, regardless of age, development, condition or dependency, including all handicapped persons and all unborn persons.

Page 508

78-11-24. Act or omission preventing abortion not actionable.

A cause of action shall not arise, and damages shall not be awarded, on behalf of any person, based on the claim that but for the act or omission of another, a person would not have been permitted to have been born alive but would have been aborted.

78-11-25. Failure or refusal to prevent birth not a defense.

The failure or refusal of any person to prevent the live birth of a person shall not be a defense in any action, and shall not be considered in awarding damages or child support, or in imposing a penalty, in any action.

(Emphasis added.) In arguing that this legislation precludes wrongful pregnancy causes of action, defendant mistakes the plain language of the statutes as well as the nature of plaintiff's claim.

The plain language of the legislation evidences that it seeks to address so-called wrongful life and wrongful birth actions and issues. As noted above, these terms are descriptive titles for claims made by deformed or impaired children and their parents, respectively, against physicians or other health care providers for negligent medical treatment or advice which, in words similar to those in the instant statutes, deprived the parents of the opportunity of deciding to prevent the live birth by choosing to abort a deformed or impaired fetus. 15

Such language emphasizes the critical distinction between the types of claims sought to be precluded by the Utah statutes in question and the claim alleged in the instant case. Here, plaintiff sought a means to avoid pregnancy itself. Indeed, the injury she claims resulted from the fact that she became pregnant allegedly due to her physician's negligent counseling regarding a surgical procedure designed to prevent her from being able to conceive. Clearly, "[a] person's decision not to conceive a child and to undergo surgical sterilization should not be confused with one's decision to abort a child already conceived." 16 In order for us to adopt defendant's view, we must ignore established and proven principles of tort law as well as the fact that in this case and others like it, it is not the birth or life of the child, but rather "the pregnancy [of the mother] as a medical condition that gives rise to compensable damages and completes the elements for a claim of negligence." 17 This we will not do.

Furthermore, to disregard the plain language and object of the statutes and hold as defendant urges us to do would create the concerns noted by the court in Johnston v. Elkins: 18

The failure to recognize a cause of action against a physician who negligently performs surgical sterilization procedures would be a grant of absolute immunity to a physician whose negligence results in injury to the patient. We decline to grant such immunity. We see no reason why a...

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