Dorlin v. Providence Hosp.

• Decision Date: 09 November 1982
• Docket Number: Docket No. 59161
• Citation: 325 N.W.2d 600,118 Mich.App. 831
• Parties: Renee Marie DORLIN, individually and as Next Friend of Desiree Dorlin, a minor, Plaintiffs-Appellants, v. PROVIDENCE HOSPITAL, a Michigan corporation, Defendant-Appellee. 118 Mich.App. 831, 325 N.W.2d 600
• Court: Court of Appeal of Michigan — District of US

Page 600

325 N.W.2d 600

Renee Marie DORLIN, individually and as Next Friend of Desiree Dorlin, a minor, Plaintiffs-Appellants, v. PROVIDENCE HOSPITAL, a Michigan corporation Defendant-Appellee.

Docket No. 59161.

118 Mich.App. 831, 325 N.W.2d 600

Court of Appeals of Michigan.

Submitted June 14, 1982.

Decided Aug. 25, 1982.

Released for Publication Nov. 9, 1982.

[118 MICHAPP 832] Charfoos, Christensen, Gilbert & Archer, P.C. by Adrienne G. Southgate and Gary D. Siegel, Detroit, for plaintiffs-appellants.

Martin, Bacon & Martin, P.C., Mount Clemens, for defendant-appellee.

[118 MICHAPP 833] Before V.J. BRENNAN, P.J., and RILEY and PAYANT, ^* JJ.

RILEY, Judge.

Renee Dorlin had a blood test performed in 1967 at Providence Hospital in order to determine whether or not she was a sickle cell anemia carrier. The results indicated that she was a carrier and she was informed of that fact. Ms. Dorlin allegedly was not informed about the consequences of being a sickle cell anemia carrier. In 1970, Ms. Dorlin married and, shortly thereafter, became pregnant. On March 18, 1971, Ms. Dorlin gave birth to Desiree Dorlin. Later that year, in November, Desiree was diagnosed as suffering from sickle cell anemia.

Renee Dorlin, individually and as next of friend of Desiree Dorlin, brought suit in Oakland County Circuit Court on March 1, 1979. The court granted defendant's motion for summary judgment as to the "wrongful life" claim of Desiree and its motion for accelerated judgment as to Renee Dorlin, based on the statute of limitations. We first consider whether the summary judgment as to Desiree was proper.

The standard governing this Court's review of an order of summary judgment, pursuant to GCR 1963, 117.2(1), is well settled. Motions pursuant to this subrule are to be tested solely on the pleadings. Todd v. Biglow, 51 Mich.App. 346, 214 N.W.2d 733 (1974). GCR 1963, 117.2(1) tests the legal basis of the complaint, not whether it can be factually supported. Borman's Inc. v. Lake State Development Co., 60 Mich.App. 175, 230 N.W.2d 363 (1975). Further, all well pleaded material allegations must be treated as true. Sullivan v. The Thomas Organization, P.C., 88 Mich.App. 77, 276 N.W.2d 522 [118 MICHAPP 834] (1979). In addition, unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion under this subrule should be denied. Crowther v. Ross Chemical & Manufacturing Co., 42 Mich.App. 426, 202 N.W.2d 577 (1972).

The tort alleged by Desiree is a rather recently developed cause of action for "wrongful life". Desiree alleges that defendant had a duty to inform her mother of the complications associated with being a sickle cell anemia carrier and, if that duty had not been breached, Ms. Dorlin could have taken steps to avoid the creation of Desiree's wrongful life, a life of disease, sickness and suffering. This tort has been recognized by a few nonauthoritative courts and commentators. ¹

In Eisbrenner v. Stanley, 106 Mich.App. 357, 308 N.W.2d 209 (1981), a panel of this Court ruled that an order of summary judgment in favor of the defendant doctor on Baby Eisbrenner's claim of wrongful life was proper because the assessment of damages would be too speculative and impossible to make. ² In that case, the defendant doctor failed [118 MICHAPP 835] to warn the parents of the risks involved in continuing a pregnancy since the mother had contacted rubella (German measles) during her confinement. The Eisbrenner Court did find that the parents had a cause of action and they could seek damages for both medical expenses and mental distress.

Plaintiffs argue Eisbrenner is misguided in finding that difficulty of damages precludes recovery. On appeal, plaintiffs put forth a possible method of determining damages. See, A Cause of Action For "Wrongful Life": [A Suggested Analysis], 55 Minn.L.Rev. 58 (1970).

We have reviewed the case law and recognize the competing public policy concerns involved in this issue. We conclude that Eisbrenner properly articulates the law of this state. Therefore, since no legal cause of action on the part of the child exists for wrongful life, the court's summary judgment order was proper. ³

Renee Dorlin appeals the court's accelerated judgment order dismissing her cause of action. The validity of her cause of action is not being contested[118 MICHAPP 836] but only whether it is barred by the statute of limitations. Ms. Dorlin contends that wrongful life (on behalf of a defectively-born child) and wrongful birth (on behalf of the parents of such a child) causes of action are new creatures in American jurisprudence and that the Legislature has not yet created a limitation period for either. The above is an overcomplication, if not a misstatement, of Renee Dorlin's claim. The claim sounds in professional negligence and is governed by the medical malpractice statute, M.C.L. Sec. 600.5805(4); M.S.A. Sec. 27A.5805(4). A malpractice cause of action accrues in accordance with the provisions of M.C.L. Sec. 600.5838; M.S.A. Sec. 27A.5838, which provides that the two-year limitation period runs from the date of last treatment for a matter out of which the claim arose or six months from the date when the malpractice was or should have been discovered, whichever is later. Defendant asserts that the last day of treatment of Renee Dorlin relative to determining whether she was a carrier of sickle cell anemia was 1967 and that she discovered or should have discovered the alleged malpractice in 1971 when Desiree was diagnosed as suffering from the disease. Therefore, the hospital argues that both the two-year period after last treatment and the six-month period after discovery had run long before the action was brought. We must agree, as did the trial court.

Because of the genetic principles associated with sickle...