Coleman v. Garrison

Decision Date26 November 1975
Citation349 A.2d 8
PartiesDoris Mae COLEMAN et al., Plaintiffs below, Appellants, v. George H. H. GARRISON and Wilmington Medical Center, Inc., a Corporation of the State of Delaware, Defendants below, Appellees.
CourtSupreme Court of Delaware

Upon appeal from Superior Court. Affirmed.

Joseph S. Yucht, Balick & Yucht, Wilmington, for plaintiffs below, appellants.

Rodney M. Layton and Jane R. Roth, Richards, Layton & Finger, Wilmington, for defendant-appellee George H. H. Garrison.

Howard H. Handelman and William J. Alsentzer, Jr., Bayard, Brill & Handelman, Wilmington, for defendant-appellee Wilmington Medical Center, Inc.

Before DUFFY and McNEILLY, JJ., and BROWN, Vice Chancellor.

DUFFY, Justice:

In this malpractice action plaintiffs, husband and wife and their five children, seek damages alleging improper performance of a sterilization operation (a bilateral tubal ligation) on the wife, after which she became pregnant and delivered a sixth child. They appeal from a summary judgment entered for defendants (the surgeon and the hospital where the operation was performed) by the Superior Court. Del.Super., 327 A.2d 757 (1974). 1 While our analysis differs somewhat from that of the Trial Court, we reach the same result.


We first consider plaintiffs' contention that the surgeon was negligent because he did not cut and remove a sufficient segment of the Fallopian tubes and that he failed to relocate them anatomically so as to avoid regeneration.

Our decision in Hurtt v. Goleburn, Del.Supr., 330 A.2d 134 (1974), is controlling on these contentions. In discussing Superior Court Rule 56(e) and the duties of parties when a motion for summary judgment is filed, we stated:

'Superior Court Civil Rule 56(e) provides for a shifting of burden to the non-moving party when a motion for summary judgment is '. . . supported as provided in . . . (the) rule . . .'.

In the context of a negligence action 'supported' means that the moving party submitted proof that he had conformed to the requisite standard of care under the circumstances at issue. For present purposes that requires a showing, (a) as to the relevant medical standards adhered to by physicians in good standing in the community under like circumstances, and, (b) that defendant's conduct was in conformity with those standards. . . . If the conduct is shown to have conformed to the standards, then the burden shifts to plaintiff to demonstrate on the record that there is a genuine issue for trial as to either the standards or the conduct. Until then, the non-moving party is not obliged to show that issues remain to be tried. . . .'

Applied here, Hurtt means that if the surgeon's conduct with respect to cutting, removing and relocating the tubes is shown to have conformed to the relevant medical standards of the community, the burden is shifted to the Colemans to demonstrate on the record that there is a genuine issue for trial as to either the standards or the surgeon's conduct. 2

In support of their motion defendants filed an affidavit by Dr. William G. Slate, Director of the Department of Obstetrics and Gynecology at the Wilmington Medical Center, which states that:

'2. I have examined the true and correct reproduction of the Department of Pathology Report, Delaware Division Wilmington Medical Center, dated October 10, 1966, and attached hereto as Exhibit A. This report states that the two segments of a tubular structure, measuring 1.4 0.4 and 1 0.4 cm respectively, from patient Doris Coleman, were Fallopian tube segments.

3. Based upon my experience, it is my opinion that the removal of segments of Fallopian tubes from the patient of the dimensions indicated in the Pathology Report conforms to the proper standard of cutting and removal of portions of the Fallopian tubes in a bilateral salpingectomy practiced in Wilmington and similar communities.

4. Furthermore, where the technique of removal of segments of Fallopian tubes as described above is employed in a bilateral salpingectomy, it is not the accepted standard of good medical practice in Wilmington, Delaware, or similar communities to relocate the tubes anatomically.'

Given this record showing of the surgical (medical) standard followed in the kind of operation here involved and defendant-surgeon's compliance with it, the burden shifted to plaintiffs to present competent medical evidence to rebut the assertions. They did not do so and, indeed, failed to produce any such evidence as to either the standard of care or the way in which the operation was performed. It follows that as to these claims of negligence the judgment of the Superior Court must be affirmed. Hurtt v. Goleburn, supra.


Next, plaintiffs contend that the surgeon entered into an oral contract with them promising that the operation would be 100% Successful and that the wife would not become pregnant again. The doctor denied making such a promise.

In the absence of a special agreement a surgeon does not warrant or guarantee a good result by his patient or that he will effect a cure. 61 Am.Jur.2d Physicians, Surgeons, etc. §§ 148, 149; 70 C.J.S. Physicians and Surgeons § 47; 43 A.L.R.3d Annot.: 1221. Stated otherwise, a surgeon is not an insurer of the success of his treatment. Peters v. Gelb, Del.Super., 303 A.2d 685 (1973), aff'd Del.Supr., 314 A.2d 901 (1974). It follows that, to be enforceable, a warranty or guarantee of success of an operation must be express and be supported by a separate consideration. Gault v. Sideman, 42 Ill.App.2d 96, 191 N.E.2d 436 (1963).

Here, the only consideration involved was the fee for the operation itself. Hence, assuming that the promise was made as plaintiffs contend, there was no consideration to support it and, therefore, it is not enforceable. Thus, plaintiffs may not recover on a warranty theory.


We now consider plaintiffs' argument that the surgeon was obligated to explain to the wife the hazards of the operation, the chances for success of failure and any alternative procedure available to accomplish sterilization. 3 The surgeon argues that even if all the risks and alternatives had been explained, nevertheless, the Colemans would have chosen a bilateral tubal ligation and, therefore, any absence of informed consent was not a proximate cause of the claimed injury. 4

It appears that the difference between the parties as to informed consent involves a material dispute of fact (but see 64 Nw.U.L.Rev. 638) raising a jury issue and, for present purposes, we assume that it is. Thus, we reach what the Superior Court regarded as the primary question in the case: May plaintiffs recover damages for 'wrongful life'? 5


We now focus on plaintiffs' claim that the surgeon should be compelled to assume financial responsibility for raising and educating the child. The Superior Court concluded that such damages may not be recovered in a court of law because they proceed on the premise that the life involved is 'wrongful.' We have no doubt that its decision was clearly correct both as a legal concept and as a statement of public policy.

First, as to the legal concept, it is settled Delaware law that recovery may not be had for damages which are speculative or conjectural. Laskowski v. Wallis, Del.Supr., 205 A.2d 825 (1964); Henne v. Balick, Del.Supr., 146 A.2d 394 (1958). 6 And that applies to any attempt to measure the value of a human life against its costs. A child is born--how can it be said within the ambit of legal predictability that the monetary cost of that life is worth more than its value? We recognize that a few courts, approaching the problem in clinical terms, have applied a 'balancing test' which, presumably, permits a jury to say that a life has been weighed and found wanting and thus the parents have been 'damaged.' See 27 A.L.R.3d Annot.: 906 and the discussion of the cases in Terrell v. Garcia, Tex.Civ.App., 496 S.W.2d 124 (1973). We respect the efforts of other Courts to provide a remedy under the circumstances but it seems to us that that kind of judgment, if appropriate at all in an American Court of law, might be applied at the end of a life, after it has been lived and when the facts can be identified. 7 But, in our view, any attempt to apply it at birth can only be an exercise is prophecy, an undertaking not within the speciality of our fact-finders.

Second, as to public policy, we agree with the comments by Justice Hansen in a recent decision by the Supreme Court of Wisconsin in Rieck v. Medical Protective Co. of Fort Wayne, Ind., 64 Wis.2d 514, 219 N.W.2d 242 (1974); he wrote:

'To permit the parents to keep their child and shift the entire cost of its upbringing to a physician who failed to determine or inform them of the fact of pregnancy would create a new category of surrogate parent. Every child's smile, every bond of love and affection, every reason for parental pride in a child's achievements, every contribution by the child to the welfare and well-being of the family and parents, is to remain with the mother and father. For the most part, these are intangible benefits, but they are nonetheless real. On the other hand, every financial cost or detriment--what the complaint terms 'hard money damages'--including the cost of food, clothing and education, would be shifted to the physician who allegedly failed to timely diagnose the fact of pregnancy. We hold that such result would be wholly out of proportion of the culpability involved, and that the allowance of recovery would place too unreasonable a burden upon physicians, under the facts and circumstances here alleged.

It is such retention of benefits--the parents keeping their child, and seeking to transfer only the financial costs of its upbringing to the doctor--that is a relevant factor in evaluating the public policy considerations involved.

Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967), expresses the same policy. That was an action by a minor born with...

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