Eisbrenner v. Stanley

• Citation: 106 Mich.App. 357,308 N.W.2d 209
• Decision Date: 19 May 1981
• Docket Number: Docket Nos. 46108,46109
• Parties: Gloria and Dennis EISBRENNER, Plaintiffs-Appellants and Cross-Appellees, v. William Frederick STANLEY, D.O., Defendant-Appellee and Cross-Appellant. Kari Ann EISBRENNER, a minor, by and through her next friends, Gloria and Dennis Eisbrenner, Plaintiffs-Appellants, v. William Frederick STANLEY, D.O., Defendant-Appellee. 106 Mich.App. 357, 308 N.W.2d 209
• Court: Court of Appeal of Michigan — District of US

Page 209

308 N.W.2d 209

Gloria and Dennis EISBRENNER, Plaintiffs-Appellants and Cross-Appellees, v. William Frederick STANLEY, D.O., Defendant-Appellee and Cross-Appellant.

Kari Ann EISBRENNER, a minor, by and through her next

friends, Gloria and Dennis Eisbrenner, Plaintiffs-Appellants, v. William Frederick STANLEY, D.O., Defendant-Appellee.

Docket Nos. 46108, 46109.

106 Mich.App. 357, 308 N.W.2d 209

Court of Appeals of Michigan.

May 19, 1981.

Released for Publication July 24, 1981.

[106 MICHAPP 359] Steven G. Silverman, Detroit, for plaintiffs-appellants and cross-appellees.

Edward M. Ranger, Detroit, for defendant-appellee and cross-appellant.

Before DANHOF, C. J., and RILEY and SULLIVAN, ^* JJ.

DANHOF, Chief Justice.

These appeals stem from a medical malpractice action commenced by plaintiffs on March 31, 1975. Two amended complaints were subsequently filed and the nature of the action changed as parties defendant were added and dropped and different theories of liability were presented. When the case stood ready for trial in the spring of 1979, the parties consisted of plaintiffs Gloria and Dennis Eisbrenner, husband and wife, in their own behalf and as representatives of their infant daughter Kari Ann Eisbrenner, and [106 MICHAPP 360] defendant William Frederick Stanley, D.O. Plaintiffs claimed that Kari Ann was born severely deformed because her mother had contracted rubella (German measles) during her pregnancy. They alleged that Dr. Stanley negligently failed to diagnose Mrs. Eisbrenner's rubella, despite the fact that he had seen test results which indicated she had contracted the disease, and that he negligently failed to warn plaintiffs of the possibility that the child would be born with rubella-caused defects. Plaintiffs contended that had defendant acted properly, he would have informed them of the risk during the first trimester of Mrs. Eisbrenner's pregnancy and the family would have decided upon an abortion rather than taking a chance on birth defects. The parents sought damages for mental distress and costs of the child's treatment. Damages were requested on behalf of the child for pain and suffering. Kari Ann had lived for over five years and died shortly before trial. The plaintiffs' complaint also alleged that Dr. Stanley had negligently delayed delivery of the child; this claim was abandoned at trial.

On April 19, 1979, defendant moved for partial summary judgment pursuant to GCR 1963, 117.2(1), claiming that the child's claim based on a "wrongful life" theory and the parents' claims for emotional trauma and expenses did not give rise to any damages cognizable at law. On May 10, 1979, the trial court issued an opinion granting summary judgment in favor of defendant as to the child's cause of action but denying the motion as to the parents' claims. The case proceeded to trial and on May 22, 1979, the jury returned a verdict of no cause of action. Plaintiffs' motion for new trial was denied and appeals to this Court followed.

[106 MICHAPP 361] In Docket No. 46108, the plaintiff parents appealed, alleging that a number of errors mandating reversal occurred during trial. Defendant cross-appealed, claiming that the trial court erred in denying his motion for summary judgment as to the parents' cause of action. Defendant also raised one issue alleging error at trial. In Docket No. 46109, the parents appealed in their capacities as representatives of the deceased child, claiming that the trial court erred in granting the defense motion for summary judgment as to the child's cause of action.

We first address the issues raised in both appeals concerning the propriety of the trial court's rulings on the summary judgment motion. In holding that the plaintiff child had no cause of action, the court stated:

"There is apparently no remedy in favor of the afflicted child for having been born under a mental or physical handicap where the alternative to such status is not to be born at all. A Plaintiff has no remedy against a Defendant whose sole offense is that he failed to consign the Plaintiff to oblivion."

However, the court ruled that the parents had stated a valid cause of action based in part upon the defendant physician's duty to disclose his diagnosis and inform the mother of the risks involved in continuing the pregnancy. Plaintiffs were held entitled to damages for both medical expenses and mental distress if they could prove their allegations. The court did state that defendant was under no duty to give counselling on the possibility of a eugenic abortion.

Michigan courts have not dealt directly with the types of actions presented in the instant case, which have sometimes been classified under the [106 MICHAPP 362] labels of "wrongful life" or "wrongful birth". Our analysis of the decisions in other jurisdictions begins with Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967), where the majority barred recovery by both the parents and the child. The Court first ruled that the damages claimed on behalf of the child were not really cognizable because any determination of such damages required an impossible value comparison between the child's life with birth defects and nonexistence due to abortion. The Court utilized the same type of logic in denying the parents' claim, stating that it was impossible to evaluate the human benefits of parenthood and to weigh such benefits against the alleged emotional and pecuniary injuries. The decision was also based on a public policy consideration whereby the majority viewed recognition of a cause of action for either the parent or the child as contrary to a policy favoring the preciousness of human life.

The Gleitman analysis relating to the child's cause of action has been followed by other courts. See, Stewart v. Long Island College Hospital, 35 App.Div.2d 531, 313 N.Y.S.2d 502 (1970). However, the parents' cause of action has been recognized. Dumer v. St. Michael's Hospital, 69 Wis.2d 766, 233 N.W.2d 372 (1975), Jacobs v. Theimer, 519 S.W.2d 846 (Tex.1975). In Jacobs, the Court reversed a summary judgment in favor of the defendant physician, whose alleged negligence was predicated upon his failure to diagnose rubella during the first trimester of the mother's pregnancy and advise her of the risks to the unborn child. The Court stated that it was impossible to justify a policy which deprived the parents of information by which they could elect to terminate the pregnancy likely to produce a defective child, required [106 MICHAPP 363] that the pregnancy be continued until a deficient child was born and then denied recovery from the tortfeasor of the costs of treating and caring for the defects of the child. The Court allowed recovery of medical expenses but refused to permit damages for emotional suffering on the ground that determination of the latter involved impermissible speculation as to the pluses and minuses of parental mind and emotion.

In Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978), the Court allowed the parents of the deformed child to maintain a wrongful birth action but, as in Jacobs, limited the allowable damages by refusing to permit recovery for emotional suffering. The Court found the problem of determining damages fatal to the child's cause of action, stating:

"The remedy afforded an injured party in negligence is designed to place that party in the position he would have occupied but for the negligence of the defendant. * * * Thus, the damages recoverable on behalf of an infant for wrongful life are limited to that which is necessary to restore the infant to the position he or she would have occupied were it not for the failure of the defendant to render advice to the infant's parents in a nonnegligent manner. The theoretical hurdle to an assertion of damages on behalf of an infant accruing from a defendant's negligence in such a case becomes at once apparent. The very allegations of the complaint state that had the defendant not been negligent, the infant's parents would have chosen not to conceive, or having conceived, to have terminated rather than to have carried the pregnancy to term, therefore depriving the infant plaintiff of his or her very existence. Simply put, a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependent upon a comparison between the Hobson's choice of life in an impaired state and nonexistence. This comparison the law is not equipped [106 MICHAPP 364] to make. * * * Recognition of so novel a cause of action requiring, as it must, creation of a hypothetical formula for the measurement of an infant's damages is best reserved for legislative, rather than judicial, attention." 46 N.Y.2d 412, 413 N.Y.S.2d 895, 386 N.E.2d 807 (citations omitted).

The New Jersey Supreme Court, in Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979), partially retreated from the position it had taken in Gleitman v. Cosgrove, supra, by recognizing the parents' cause of action for wrongful birth. The child in Berman was born with Down's syndrome and an action was brought by the parents and child claiming that the defendant physicians were negligent in failing to inform the mother of the availability of a testing procedure called amniocentesis, which allegedly would have revealed the existence of the genetic defects early in the pregnancy. The plaintiffs claimed injury because the mother was deprived of the option of deciding whether to have an abortion. The majority rejected the idea that the child possessed an independent cause of action, based on public policy favoring life with physical handicaps over non-life. However, in upholding the parents' right to maintain the action, the Court noted that their decision whether or not to seek an abortion during the first trimester of pregnancy was not subject to state interference, citing Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Gleitman v. Cosgrove had...