Curlender v. Bio-Science Laboratories

• Decision Date: 11 June 1980
• Docket Number: BIO-SCIENCE
• Parties: Shauna Tamar CURLENDER, a minor, by and through Hyam Curlender, her Guardian ad Litem, Plaintiffs and Appellants, v.LABORATORIES, a corporation; Automated Laboratory Sciences, a corporation, Defendants and Respondents. Civ. 58192.
• Court: California Court of Appeals Court of Appeals

Page 477

165 Cal.Rptr. 477

106 Cal.App.3d 811

Shauna Tamar CURLENDER, a minor, by and through Hyam Curlender, her Guardian ad Litem, Plaintiffs and Appellants, v. BIO-SCIENCE LABORATORIES, a corporation; Automated Laboratory Sciences, a corporation, Defendants and Respondents.

Civ. 58192.

Court of Appeal, Second District, Division 1, California.

June 11, 1980.

Hearing Denied Sept. 4, 1980.

Hurley & Grassini and Roland Wrinkle, North Hollywood, for plaintiffs and appellants.

Gibson, Dunn & Crutcher, and G. Edward Fitzgerald, Gary J. Nevolo, and Robert A. Rizzi, Los Angeles, for defendant and respondent Bio-Science Laboratories.

Dummit & Agajanian and Scott McFall, Los Angeles, for defendant and respondent Automated Laboratory Sciences.

JEFFERSON, Presiding Justice.

Plaintiff Shauna Tamar Curlender, a child, by her father, Hyam Curlender, as guardian ad litem, sought damages for personal injury from defendants Bio-Science Laboratories, a corporation, Automated Laboratory Sciences, ¹ a corporation, and Jerome Schaffer, M. D. ² At first, defendants attacked the sufficiency of the third cause of action set forth in the complaint, a cause of action based upon alleged fraud; eventually, however, defendants demurred to the first amended complaint in its entirety on the ground that it had failed to state a cause of action in its entirety. The trial court sustained the demurrers without leave to amend, and an order of dismissal was filed. Plaintiff has appealed from this order of dismissal.

The appeal presents an issue of first impression in California: What remedy, if any, is available in this state to a severely impaired child genetically defective born as the result of defendants' negligence in conducting certain genetic tests of the child's parents tests which, if properly done, would have disclosed the high probability that the actual, catastrophic result would occur?

In resolving this important and complex issue, we turn first to the allegations of the amended complaint, one less than artfully drawn considering the far reaching implications both legal and medical of the matter. Because of the procedural posture by which this case reaches us, we bear in mind that we must accept as true the factual allegations contained in that pleading. As it was carefully explained in Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713, 63 Cal.Rptr. 724, 737, 433 P.2d 732, 745, "(i)n our examination of the complaint we are guided by the well settled principles governing the testing of its sufficiency by demurrer: A demurrer admits all material and issuable facts properly pleaded. (Citations.) However, it does not admit contentions, deductions or conclusions of fact or law alleged therein. (Citations.)"

I The Allegations of the Complaint To Establish a "Wrongful-Life" Cause of Action in Tort

The complaint was framed in five causes of action: however, three of these do not concern us here. ³ In the first cause of action against the named defendants, plaintiff Shauna alleged that on January 15, 1977, her parents, Phillis and Hyam Curlender, retained defendant laboratories to administer certain tests designed to reveal whether either of the parents were carriers of genes which would result in the conception and birth of a child with Tay-Sachs disease, medically defined as "amaurotic familial idiocy." ⁴ The tests on plaintiff's parents were performed on January 21, 1977, and, it was alleged, due to defendants' negligence, "incorrect and inaccurate" information was disseminated to plaintiff's parents concerning their status as carriers.

The complaint did not allege the date of plaintiff's birth, so we do not know whether the parents relied upon the test results in conceiving plaintiff, or, as parents-to-be when the tests were made, relied upon the results in failing to avail themselves of amniocentesis ⁵ and an abortion. ⁶ In any event, on May 10, 1978, plaintiff's parents were informed that plaintiff had Tay-Sachs disease.

As the result of the disease, plaintiff Shauna suffers from "mental retardation, susceptibility to other diseases, convulsions, sluggishness, apathy, failure to fix objects with her eyes, inability to take an interest in her surroundings, loss of motor reactions, inability to sit up or hold her head up, loss of weight, muscle atrophy, blindness, pseudobulper palsy, inability to feed orally, decerebrate rigidity and gross physical deformity." It was alleged that Shauna's life expectancy is estimated to be four years. The complaint also contained allegations that plaintiff suffers "pain, physical and emotional distress, fear, anxiety, despair, loss of enjoyment of life, and frustration . . . ."

The complaint sought costs of plaintiff's care as damages and also damages for emotional distress and the deprivation of "72.6 years of her life." In addition, punitive damages of three million dollars were sought, on the ground that "(a)t the time that Defendants . . . (tested the parents) Defendants, and each of them, had been expressly informed by the nation's leading authority on Tay-Sachs disease that said test procedures were substantially inaccurate and would likely result is disasterous (sic) and catastrophic consequences to the patients, and Defendants knew that said procedures were improper, inadequate and with insufficient controls and that the results of such testing were likely to be inaccurate and that a false negative result would have disasterous (sic) and catastrophic consequences to the Plaintiff, all in conscious disregard of the health, safety and well-being of Plaintiff . . . ."

II Survey of the Decisional Law Relating to Recognition of a Cause of Action for "Wrongful Life" Brought by a Child, Born with Genetic Defects or Born Illegitimately, Against a Physician or Medical Entity for Failure to Diagnose the Condition and Inform the Parents Accordingly

As indicated, the demurrers to the complaint were sustained without leave to amend. ⁷ Defendants successfully argued below that plaintiff Shauna, in essence, was seeking damages for negligence which resulted in her birth; the action was thus termed one for "wrongful life," a cause of action which when brought by the infant so born, has almost universally been barred in various factual contexts by courts in jurisdictions other than California, and has been rejected in this state insofar as damages were sought for an illegitimate birth by the infant so born. (Stills v. Gratton (1976) 55 Cal.App.3d 698, 127 Cal.Rptr. 652.)

The term "wrongful life" has to date served as an umbrella for causes of action based upon any distinguishable factual situations; this has led to some confusion in its use. For purposes of our discussion, the term "wrongful life" will be confined to those causes of action brought by the infant alleging that, due to the negligence of the defendant, birth occurred; this would include the healthy baby boy involved in Stills, supra, as well as the genetically and severely impaired plaintiff, Shauna, in the case at bench.

In our discussion, we do not intend to make reference, in any exhaustive way, to the decisional law concerning parental causes of action, except where it appears to have some significance herein. (For a more generally-oriented collection of cases, see "Tort Liability for Wrongful Birth," 83 A.L.R.3d 15, 29, and an excellent analysis in Speck v. Finegold, supra, footnote 6, of the case law that has developed in the last 50 years.

The term "wrongful life" appeared in 1963 in an Illinois appellate court opinion. (Zepeda v. Zepeda (1963) 41 Ill.App.2d 240, 190 N.E.2d 849, cert. denied 379 U.S. 945, 85 S.Ct. 444, 13 L.Ed.2d 545.) There the court denied recovery to an infant plaintiff who claimed that his defendant father had injured him by causing him to be born illegitimately. The Illinois court declined to equate illegitimate birth with injury deemed actionable at law in our society. It declared that "(r)ecognition of the plaintiff's claim means creation of a new tort: a cause of action for wrongful life. The legal implications of such a tort are vast, the social impact could be staggering. If the new litigation were confined just to illegitimates it would be formidable." (Zepeda, supra, 190 N.E.2d 849, 858.) (Emphasis added.)

The Zepeda holding was followed in Williams v. State (1966) 18 N.Y.2d 481, 276 N.Y.S.2d 885, 223 N.E.2d 343. In Williams, plaintiff's mentally deficient mother was raped while in a state mental institution, under circumstances giving rise to the claim that the rape had been the proximate result of the institution's negligence with plaintiff's illegitimate birth a consequence. The New York court observed that "(b)eing born under one set of circumstance rather than another or to one pair of parents rather than another is not a suable wrong that is cognizable in court." (Williams, supra, 276 N.Y.S.2d 885, 887, 223 N.E.2d 343, 344.)

A major (and much cited) opinion considering a claim for damages by an impaired infant plaintiff and his parents is Gleitman v. Cosgrove (1967) 49 N.J. 22, 227 A.2d 689, from the New Jersey Supreme Court. The Gleitmans brought a malpractice action against Mrs. Gleitman's physician for damages because the Gleitman child, Jeffrey, had been born with serious impairments of sight, speech, and hearing. Mrs. Gleitman had contracted rubella (measles) during the first trimester of pregnancy (the first three months). Defendant was made aware of this fact, but failed to inform the mother-to-be of any potentially harmful consequences to her child; Mrs. Gleitman was assured by him that such consequences would not occur, although it was common medical knowledge that rubella, contracted during early pregnancy, often causes the type of defects suffered by Jeffrey, who was also mentally retarded.

The majority of the Gleitman court barred recovery by either the parents or the child on two grounds: (1) the perceived impossibility of computing damages and (2) public policy....