Cowe by Cowe v. Forum Group, Inc.

Decision Date25 July 1991
Docket NumberNo. 41S04-9107-CV-569,41S04-9107-CV-569
Citation575 N.E.2d 630
Parties, 2 NDLR P 29 Jacob E. COWE, by Ann Cowe, Parent and Guardian, Appellant (Plaintiff Below), v. FORUM GROUP, INC., Appellee (Defendant Below).
CourtIndiana Supreme Court

Dennis V. Panarisi, Marion, for appellant.

Geoffrey Segar, John T. Murphy, Ice Miller Donadio & Ryan, Indianapolis, for appellee.

DICKSON, Justice.

Should Indiana recognize a separate tort action for wrongful life, as declared by the Indiana Court of Appeals? Cowe v. Forum Group, Inc. (1989), Ind.App., 541 N.E.2d 962. We grant transfer and hold otherwise.

This is an appeal on behalf of plaintiff-appellant Jacob E. Cowe (Cowe) from a summary judgment entered by the trial court as to Count IV of the complaint. This count sought damages for the medical attention, care, support, maintenance, and education of Cowe until age 21 by reason of the alleged negligence of defendant-appellee Forum Group, Inc., (Forum) operator of River-View Manor Nursing Home in Marion, Indiana. Cowe was born on March 25, 1986, to Melanie Meredith, a lifelong, profoundly retarded adult in the total custodial care of the defendant's private nursing home. With only the mental capacity of an infant, Melanie has been unable to walk, talk, or care for herself. Shortly after his birth, Jacob was adopted by Ann Cowe.

Count IV alleges negligence in two respects. It first asserts that the failure to protect Melanie Meredith from rape proximately caused Cowe's birth "into a world in which there was no natural parent capable of caring for and supporting him." Record at 7. Second, it claims that the failure to timely detect the pregnancy until its fifth month proximately caused a failure of proper prenatal care resulting in physical injury to Cowe, the extent of which is still undetermined. Asserting in part that Count IV failed to state any claim upon which relief could be granted, Forum sought and received summary judgement in its favor. 1 On appeal, Cowe raises the following designated issues:

1) Is there a genuine issue of material fact that the operator of a nursing home may be held liable for child support under imputed paternity principles where a male patient in the nursing home's care rapes one of the nursing home's female patients, resulting in the birth of the infant plaintiff?

2) Is there a genuine issue of material fact that the operator of a nursing home may be held liable for an infant's alleged physical injuries resulting from the nursing home's failure to timely detect the pregnancy of the infant's mother, a patient of the nursing home, and failing to provide the infant plaintiff proper pre-natal care?

Brief of Appellant to the Court of Appeals at 1-2.

These issues address the propriety of the trial court's grant of summary judgment and call for the application of familiar principles. Upon appellate review of summary judgment, this Court views the same matters and issues that were before the trial court and follows the same process. Burke v. Capello (1988), Ind., 520 N.E.2d 439. A summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Any doubt as to the existence of a factual issue should be resolved against a moving party, construing all properly asserted facts and reasonable inferences in favor of the nonmovant. Bridgewater v. Economy Eng'g Co. (1985), Ind., 486 N.E.2d 484. Summary judgment may be proper when there is no dispute regarding a fact which is dispositive of the action. Beckett v. Clinton Prairie School Corp. (1987), Ind., 504 N.E.2d 552. In ruling upon a motion for summary judgment, facts alleged in a complaint must be taken as true except to the extent that they are negated by depositions, answers to interrogatories, affidavits, and admissions on trial or by testimony presented at the hearing on a motion for summary judgment. Kahf v. Charleston South Apartments (1984), Ind.App., 461 N.E.2d 723; Tanasijevich's Estate v. City of Hammond (1978), 178 Ind.App. 669, 383 N.E.2d 1081; see generally 3 W. Harvey, Indiana Practice Sec. 56.9 (2d ed. 1988). The party moving for summary judgment must shoulder the burden of establishing the lack of a material factual issue. Kahf, 461 N.E.2d at 729; Jones v. City of Logansport (1982), Ind.App., 436 N.E.2d 1138, 1143. Once the movant has met this burden, an opposing party is obliged to disgorge sufficient evidence to show the existence of a genuine triable issue. Hinkle v. Niehaus Lumber Co. (1988), Ind., 525 N.E.2d 1243. The opposing party's obligation does not arise until after the movant has shown himself entitled to summary judgment. Marathon Petroleum v. Colonial Motel (1990), Ind.App., 550 N.E.2d 778; Kahf, 461 N.E.2d 723; Johnson v. Padilla (1982), Ind.App., 433 N.E.2d 393. The contents of all pleadings, affidavits, and testimony are liberally construed in the light most favorable to the nonmoving party. Ayres v. Indian Heights Vol. Fire Dept. (1986), Ind., 493 N.E.2d 1229.

1. Failure To Protect Patient From Rape

To the extent that Count IV is viewed as a paternity action seeking to impose vicarious liability, the Court of Appeals found it without merit. We agree and pursuant to Ind. Appellate Rule 11(B)(3) summarily affirm the decision of the Court of Appeals upon this issue. To the extent that Count IV otherwise presents a claim for damages to Cowe from Forum's failure to protect its patient from rape, the Court of Appeals reversed the summary judgment and remanded for trial not only applying a theory of negligence, but also advancing a separate "wrongful life" theory of liability. We now reexamine these determinations.

A brief summary of the prevailing nomenclature may be helpful. 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. Siemieniec v. Lutheran Gen. Hosp. (1987), 117 Ill.2d 230, 237, 111 Ill.Dec. 302, 307, 512 N.E.2d 691, 696. This action is recognized in Indiana. Garrison v. Foy (1985), Ind.App., 486 N.E.2d 5. The phrase "wrongful birth" applies to claims brought by the parents of a child born with birth defects alleging that due to negligent medical advice or testing they were precluded from an informed decision about whether to conceive a potentially handicapped child or, in the event of a pregnancy, to terminate it. Garrison, 486 N.E.2d at 7; Siemieniec, 117 Ill.2d at 235, 111 Ill.Dec. at 307, 512 N.E.2d at 696; Harbeson v. Parke-Davis, Inc. (1983), 98 Wash.2d 460, 467, 656 P.2d 483, 488. When such action seeks damages on behalf of the child rather than the parents, the phrase "wrongful life" instead of "wrongful birth" is employed. Garrison, 486 N.E.2d at 7; Siemieniec, 117 Ill.2d at 236, 111 Ill.Dec. at 306-07, 512 N.E.2d at 695-96; see, e.g., Azzolino v. Dingfelder (1985), 315 N.C. 103, 107, 337 S.E.2d 528, 531; Turpin v. Sortini (1982), 31 Cal.3d 220 225, 182 Cal.Rptr. 337, 340 n. 4, 643 P.2d 954, 957 n. 4. 2

We first observe that the Court of Appeals erroneously considered the existence of a potential cause of action for "wrongful life" as if it were distinct from the plaintiff's tort action for negligent failure to prevent the rape. Claims seeking damages for "wrongful life" fall within generally applicable common law tort principles. Lininger v. Eisenbaum (1988), Colo., 764 P.2d 1202, 1209; Turpin, 31 Cal.3d at 229, 182 Cal.Rptr. at 342, 643 P.2d at 959; Becker v. Schwartz (1978), 46 N.Y.2d 401, 410, 413 N.Y.S.2d 895, 899, 386 N.E.2d 807, 811. The question is not whether the plaintiff may have separate causes of action for negligence and for wrongful life, but rather whether the plaintiff's negligence action may seek damages related to his birth and its circumstances.

An overwhelming majority of other jurisdictions considering the issue have rejected claims for wrongful life by children born with congenital disorders. See generally Lininger, 764 P.2d at 1210; Siemieniec, 117 Ill.2d at 238, 111 Ill.Dec. at 307, 512 N.E.2d at 696; Azzolino, 315 N.C. at 110, 337 S.E.2d at 533. There are two interrelated grounds upon which the denial of recovery usually rests. The first is a general conceptual unwillingness to recognize any cognizable damages for a child born with a genetic impairment as opposed to not being born at all. Becker, 46 N.Y.2d at 412, 413 N.Y.S.2d at 900, 386 N.E.2d at 812; Siemieniec, 117 Ill.2d at 239, 111 Ill.Dec. at 308, 512 N.E.2d at 697. Judicial recognition of the defective child's birth as an injury to the child would raise profound questions.

[T]he implications of any such proposition are staggering. Would claims be honored, assuming the breach of an identifiable duty, for less than a perfect birth? And by what standard or by whom would perfection be defined?

Becker, 46 N.Y.2d at 411, 413 N.Y.S.2d at 900, 386 N.E.2d at 812. The second basis for rejecting wrongful life claims is the impossibility of calculating compensatory damages to restore a birth defective child to the position he would have occupied were it not for the defendant's negligence.

Because children with genetic disorders ... are impaired from the moment of conception, it is impossible for them to have a fundamental right to be born as whole individuals. Hence, the only alternative to their suffering, and the standard against which their compensation must be determined, is nonexistence.

Siemieniec, 117 Ill.2d at 242, 111 Ill.Dec. at 309, 512 N.E.2d at 698. The wrongful life action thus involves "a calculation of damages dependent upon the relative benefits of an impaired life as opposed to no life at all." Siemieniec, 117 Ill.2d at 240, 111 Ill.Dec. at 308, 512 N.E.2d at 697. This is a "comparison the law is not equipped to make." Becker, 46 N.Y.2d at 412, 413 N.Y.S.2d at 900, 386 N.E.2d at 812.

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