Chaffee v. Seslar, 17A03-0011-CV-418.

Citation751 N.E.2d 773
Decision Date13 July 2001
Docket NumberNo. 17A03-0011-CV-418.,17A03-0011-CV-418.
PartiesKenneth R. CHAFFEE, M.D., Appellant-Defendant, v. Heather L. SESLAR, Appellee-Plaintiff.
CourtCourt of Appeals of Indiana

Edward L. Murphy, Jr., Heidi K. Ellison, Miller, Carson, Boxberger & Murphy, LLP, Fort Wayne, IN, Attorneys for Appellant.

John C. Grimm, Grimm & Grimm, Auburn, IN, Attorney for Appellee.

OPINION

ROBB, Judge.

Kenneth R. Chaffee, M.D., appeals the trial court's preliminary determination in favor of Heather L. Seslar. We affirm.

Issue1

Dr. Chaffee raises the following consolidated and restated issue for our review: whether the costs involved in raising a normal, healthy child conceived subsequent to an allegedly negligent sterilization procedure are recoverable.

Facts and Procedural History

The facts reveal that on March 26, 1998, Dr. Chaffee performed an abdominal bilateral partial salpingectomy upon Seslar's request for the purpose of rendering her sterile. Thereafter, Seslar became pregnant and gave birth to a healthy child on August 5, 1999. On March 15, 2000, Seslar filed a proposed complaint for medical malpractice with the Indiana Department of Insurance as prescribed by the Medical Malpractice Act2 alleging negligence and breach of contract on the part of Dr. Chaffee as a result of his performance of the unsuccessful sterilization procedure.

Prior to the review panel issuing its written opinion, Dr. Chaffee on June 16, 2000, filed with the Dekalb Circuit Court a Motion for Preliminary Determination pursuant to Indiana Code section 34-18-11-1. Dr. Chaffee requested that the trial court as a matter of law determine that a plaintiff could not recover in a medical malpractice suit child-rearing expenses from a healthcare provider on the basis of negligent performance of a sterilization procedure.3 Following a hearing, the trial court on October 24, 2000, entered an order which provides in pertinent part that:

This Court, ... hereby rules that [Seslar] may properly seek recovery of monetary damages for future costs of rearing her child including, but not limited to, medical costs and educational costs.

R. 60. This interlocutory appeal ensued.

Discussion and Decision

Dr. Chaffee contends that child-rearing damages are not recoverable for the subsequent birth of a normal, healthy child as a result of the negligent performance of a sterilization procedure. We disagree.

I. Standard of Review

Here, Dr. Chaffee filed a Motion for Preliminary Determination with the trial court. This is a procedure unique to Medical Malpractice Act claims that permits the trial court to assume jurisdiction over threshold issues before the Medical Review Panel has acted. See Ind.Code § 34-18-11-1. When an issue presented on appeal is a pure question of law, we review the matter de novo. State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind.1997). "A pure question of law is one that requires neither reference to extrinsic evidence, the drawing of inferences therefrom, nor the consideration of credibility questions for its resolution by a court." Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind.2000). Because we are confronted with a pure question of law, our standard of review is de novo.

II. Right Not to Procreate

We note initially that the United States Constitution protects the right of privacy including one's rights to family planning and birth control. The United States Supreme Court has provided that the right to choose not to have a child is at the "very heart" of a group of constitutionally protected choices, including the decisions relating to marriage, family relationships, child rearing and education. Carey v. Population Servs. Int'l, 431 U.S. 678, 685, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). The choice whether to bear or begat a child is central to these Fourteenth Amendment privacy rights. Id. The Court has stated that "if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision of whether to bear or begat a child." Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972).

The United States Supreme Court has reversed convictions based upon state statutes making it a crime to use any device to prevent contraception. See Griswold v. Connecticut, 381 U.S. 479, 485-86, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)

(reversing conviction of executive director and medical director of Planned Parenthood League as accessories for providing family planning information to married persons). The court has also held that restrictions which impede access to contraceptives unacceptably impair the right to privacy because such access is "essential to the exercise" of constitutionally protected reproductive rights. Carey, 431 U.S. at 685, 688-89,

97 S.Ct. 2010. In addition, the Court has provided that the right of privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Therefore, individuals have a constitutional right to limit the size of their family, regardless of whether that decision is based upon a lifestyle choice, financial, health, or social concern.

III. Claim of "Wrongful Pregnancy"
A. Cause of Action

"Wrongful pregnancy"4 is a label attached to a cause of action alleging that but for a third party's negligence, the plaintiff-parents would not have conceived or given birth to an unplanned yet healthy child. "An action for `wrongful conception or pregnancy' refers to a claim for damages sustained by the parents of an unexpected child alleging that the conception of the child resulted from negligent sterilization procedures or a defective contraceptive product." Cowe by Cowe v. Forum Group, Inc., 575 N.E.2d 630, 633 (Ind. 1991)

. The claim itself appears to be the offspring of earlier existing claims of "wrongful birth" and "wrongful life."5

Claims for "wrongful pregnancy" typically are predicated on the unsuccessful tubal ligation or cauterization, unsuccessful vasectomy, the failure to properly diagnose a pregnancy or perform an abortion, negligence in the insertion or removal of an IUD or dispensing contraception prescriptions, or the failure of a contraceptive pill or condom. The damages sought in a "wrongful pregnancy" action are those owing to the parents, not the unplanned healthy child, due to the unsuccessful medical procedures and the resulting birth of a child. Garrison v. Foy, 486 N.E.2d 5, 7 (Ind.Ct.App.1985).

Historically, courts denied recovery for claims of "wrongful pregnancy" based upon the "blessings doctrine," which provides that the birth of a human being is not a harm but rather a blessing. See Sherlock v. Stillwater Clinic, 260 N.W.2d 169, 173 (Minn.1977)

; see also Christensen v. Thornby, 192 Minn. 123, 255 N.W. 620, 621 (1934). However, the principle slowly emerged "that the birth of a child may be something less than [a] `blessed event.'" Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463, 475 (Cal.Ct.App.1967). The current extensive use of birth control and sterilization procedures indicated that many individuals do not consider parenthood a "net positive circumstance." See Burke v. Rivo, 406 Mass. 764, 551 N.E.2d 1, 4 (1990). More than a decade ago, this court in Garrison v. Foy recognized that the cause of action labeled "wrongful pregnancy" existed in Indiana. Although this cause of action still exists in Indiana, we will no longer utilize the label "wrongful pregnancy" and will treat such a claim as any other medical malpractice action, as instructed by Bader v. Johnson.

Recently, the Indiana Supreme Court in Bader v. Johnson was confronted with the issue of whether a cause of action labeled "wrongful birth" existed in Indiana. In Bader, father and mother's first child was born with congenital birth defects. 732 N.E.2d at 1215. When mother became pregnant for a second time, the parents sought consultation with healthcare providers in order to ensure that the child was healthy. Id. Testing showed that the pregnancy was normal and the parent's second child was born healthy. Id. When mother became pregnant for the third time, the parents again sought consultation with the healthcare providers. Id. The healthcare providers administered an ultrasound which revealed that the fetus had a larger than expected cavity within the brain and an unusual head shape. Id. Due to office error, follow-up testing was not performed in a timely manner and the child was born with multiple birth defects and as a result died four months later. Id.

Consequently, the parents filed a proposed complaint with the Indiana Department of Insurance which later determined that the healthcare providers failed to meet the applicable standard of care. Id. Thereafter, parents filed suit against the healthcare providers alleging that the healthcare providers' failure to inform deprived them of the opportunity to terminate the pregnancy. Id. Subsequently, the healthcare providers filed a motion for summary judgment, which the trial court denied. We affirmed the judgment of the trial court. Bader v. Johnson, 675 N.E.2d 1119 (Ind.Ct.App.1997).

The Indiana Supreme Court stated that the injury to the parents was one of lost opportunity and ability to terminate the pregnancy and that such a cause of action existed in Indiana. Bader, 732 N.E.2d at 1219-20. However, the court refused to characterize the action as "wrongful birth," explaining that "[l]abeling the [parents'] cause of action as `wrongful birth' adds nothing to the analysis, inspires confusion, and implies that the court has adopted a new tort." Id. at 1216. Thus, our supreme court treated a "wrongful birth" action like any other medical malpractice case, refusing to give it special status or imply it was recognizing a new tort. See Id. We will follow our supreme court's lead with regard...

To continue reading

Request your trial
1 cases
  • Chaffee v. Seslar
    • United States
    • Indiana Supreme Court
    • April 15, 2003
    ...raising and educating her child born following an unsuccessful sterilization procedure. The Court of Appeals affirmed. Chaffee v. Seslar, 751 N.E.2d 773 (Ind.Ct.App.2001). We granted transfer, 774 N.E.2d 512 (Ind.2002) (table), and now hold that damages for an allegedly negligent sterilizat......
1 books & journal articles
  • The Costs of Changing Our Minds
    • United States
    • Emory University School of Law Emory Law Journal No. 69-1, 2019
    • Invalid date
    ...parents in a wrongful pregnancy action cannot have their damages offset by not choosing abortion or adoption); Chaffee v. Seslar, 751 N.E.2d 773, 788 (Ind. Ct. App. 2001) ("We believe the requirement of considering an abortion or placing the child up for adoption [as a form of mitigation in......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT