Emerson v. Magendantz, 95-306-A

CourtUnited States State Supreme Court of Rhode Island
Citation689 A.2d 409
Docket NumberNo. 95-306-A,95-306-A
PartiesDiane EMERSON et al. v. Henry MAGENDANTZ, M.D., et al. ppeal.
Decision Date26 February 1997

WEISBERGER, Chief Justice.

This case comes before us on questions of law certified by a justice of the Superior Court in response to a motion to dismiss pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure filed by the defendant, Henry Magendantz, M.D., in opposition to a complaint of plaintiffs, Diane Emerson and Thomas F. Emerson (the Emersons or Diane), alleging negligence on the part of the defendant. The certified questions are as follows:

"1. Is there a cause of action under Rhode Island law when a physician negligently performs a sterilization procedure and the patient subsequently becomes pregnant and delivers a child from that pregnancy?

"2. If so, what is the measure of damages?"

The facts giving rise to these certified questions may be summarized as follows from the pleadings and the documents filed by the parties in the Superior Court and in this court. Following the birth of their first child, the Emersons decided for financial reasons to limit their family to one child. Having made this decision, Diane consulted defendant, who was a gynecological specialist, concerning sterilization procedures. The defendant agreed to perform a surgical tubal ligation and did so upon Diane on January 10, 1991. Subsequently, on or about May 31, 1991, Diane was seen by an obstetrician, who determined that she was pregnant in spite of the preceding tubal ligation. Diane gave birth to a child on January 11, 1992. The child, who was named Kirsten, is alleged to have congenital problems that are only generally described in the complaint. Following Kirsten's birth, Diane underwent a second tubal ligation.

In March 1994 the Emersons filed a complaint in the Superior Court for the County of Providence, alleging that Kirsten's birth was proximately caused by defendant's negligent performance of the tubal-ligation procedure. The complaint also alleged that defendant had failed properly to inform Diane and to obtain her consent prior to surgery.

The Emersons also allege that as a result of defendant's negligence Diane suffered severe physical pain and required additional invasive medical treatment. The Emersons further allege that they have suffered mental anguish and distress and that they have lost wages and earning capacity as a result of Diane's unanticipated pregnancy. The Emersons further complain that as a proximate result of defendant's negligence, they have incurred an obligation to expend monetary resources for the medical care and maintenance of Kirsten and that they will continue to be so obligated for many years to come.

I Is There a Cause of Action under Rhode Island Law When a Physician Negligently Performs a Sterilization Procedure and the Patient Subsequently Becomes Pregnant and Delivers a Child?

This question poses an issue of first impression in this state. Of the numerous courts that have considered this question, only one state court of last resort has declined to recognize a cause of action in tort arising out of the negligent performance of a sterilization procedure. Szekeres v. Robinson, 102 Nev. 93, 715 P.2d 1076 (1986). Even Nevada has suggested there may be an action for breach of warranty. Id. 715 P.2d at 1079. 1 All other jurisdictions that have considered this question have determined that the negligent performance of a sterilization procedure is a tort for which recovery would be allowed under state law. See, e.g., University of Arizona Health Sciences Center v. Superior Court of Arizona, 136 Ariz. 579, 667 P.2d 1294 (1983); Ochs v. Borrelli, 187 Conn. 253, 445 A.2d 883 (1982); Jones v. Malinowski, 299 Md. 257, 473 A.2d 429 (1984); Burke v. Rivo, 406 Mass. 764, 551 N.E.2d 1 (1990); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977); Marciniak v. Lundborg, 153 Wis.2d 59, 450 N.W.2d 243 (1990). In all, approximately thirty-five jurisdictions recognize a cause of action for negligent performance of sterilization procedures whether performed on the wife or on the husband.

We are persuaded by the overwhelming majority of opinions that recognize negligent performance of a sterilization procedure as a tort for which recovery may be allowed. Therefore, we answer the first question in the affirmative.

II What Is The Measure Of Damages?

Courts that have recognized the cause of action arising out of the negligent performance of sterilization or comparable procedures have adopted three general types of remedies as compensation for negligent procedures resulting in unwanted pregnancies. Thirty jurisdictions have adopted a remedy of limited recovery. See Boone v. Mullendore, 416 So.2d 718 (Ala.1982); Wilbur v. Kerr, 275 Ark. 239, 628 S.W.2d 568 (1982); Coleman v. Garrison, 349 A.2d 8 (Del.1975), modified in part by Garrison v. Medical Center of Delaware, Inc., 581 A.2d 288 (Del.1990); Flowers v. District of Columbia, 478 A.2d 1073 (D.C.App.1984); Public Health Trust v. Brown, 388 So.2d 1084 (Fla.Dist.Ct.App.1980); Fulton-DeKalb Hospital Authority v. Graves, 252 Ga. 441, 314 S.E.2d 653 (1984); Cockrum v. Baumgartner, 95 Ill.2d 193, 69 Ill.Dec. 168, 447 N.E.2d 385, cert. denied, 464 U.S. 846, 104 S.Ct. 149, 78 L.Ed.2d 139 (1983); Garrison v. Foy, 486 N.E.2d 5 (Ind.Ct.App.1985); Nanke v. Napier, 346 N.W.2d 520 (Iowa 1984); Byrd v. Wesley Medical Center, 237 Kan. 215, 699 P.2d 459 (1985); Schork v. Huber, 648 S.W.2d 861 (Ky.1983); Pitre v. Opelousas General Hospital, 530 So.2d 1151 (La.1988) (granting expenses of pregnancy and delivery, mother's pain and suffering, loss of consortium, and emotional distress for pregnancy resulting from failed sterilization, and intimating that proof of foreseeable risk of birth defects might result in greater damages); Macomber v. Dillman, 505 A.2d 810 (Me.1986); Rinard v. Biczak, 177 Mich.App 287, 441 N.W.2d 441 (1989); Girdley v. Coats, 825 S.W.2d 295 (Mo. banc 1992); Kingsbury v. Smith, 122 N.H. 237, 442 A.2d 1003 (1982) (court referred to case as "wrongful birth" case, but child was healthy); Hitzemann v. Adam, 246 Neb. 201, 518 N.W.2d 102 (1994); P. v. Portadin, 179 N.J.Super. 465, 432 A.2d 556 (1981); O'Toole v. Greenberg, 64 N.Y.2d 427, 488 N.Y.S.2d 143, 477 N.E.2d 445 (1985); Jackson v. Bumgardner, 318 N.C. 172, 347 S.E.2d 743 (1986); Johnson v. University Hospitals of Cleveland, 44 Ohio St.3d 49, 540 N.E.2d 1370 (1989); Morris v. Sanchez, 746 P.2d 184 (Okl.1987); Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 453 A.2d 974 (Pa.1982); Smith v. Gore, 728 S.W.2d 738 (Tenn.1987); Crawford v. Kirk, 929 S.W.2d 633 (Tex.App.1996); C.S. v. Nielson, 767 P.2d 504 (Utah 1988); Miller v. Johnson, 231 Va. 177, 343 S.E.2d 301 (1986); McKernan v. Aasheim, 102 Wash.2d 411, 687 P.2d 850 (1984) (en banc); James G. v. Caserta, 175 W.Va. 406, 332 S.E.2d 872 (1985); Beardsley v. Wierdsma, 650 P.2d 288 (Wyo.1982).

Under the limited-recovery rule the foregoing jurisdictions frequently grant compensation to the plaintiffs for the medical expenses of the ineffective sterilization procedure, for the medical and hospital costs of the pregnancy, for the expense of a subsequent sterilization procedure, for loss of wages, and sometimes for emotional distress arising out of the unwanted pregnancy and loss of consortium to the spouse arising out of the unwanted pregnancy. They also generally include medical expenses for prenatal care, delivery, and postnatal care.

A number of jurisdictions allow for recovery of the cost of child rearing as an element of damages. These jurisdictions may be divided into two groups. One group allows the cost of child rearing but balances against this cost the benefits derived by the parents, either economic or emotional, from having a healthy child. See, e.g., University of Arizona Health Sciences Center v. Superior Court of Arizona, 136 Ariz. 579, 667 P.2d 1294 (1983); Ochs v. Borrelli, 187 Conn. 253, 445 A.2d 883 (1982); Burke v. Rivo, 406 Mass. 764, 551 N.E.2d 1 (1990).

Two jurisdictions have adopted a full-recovery rule without offsetting either the economic or the emotional benefits to be derived from having a healthy child. Lovelace Medical Center v. Mendez, 111 N.M. 336, 805 P.2d 603 (1991); Marciniak v. Lundborg, 153 Wis.2d 59, 450 N.W.2d 243 (1990). These two courts apply traditional tort principles in allowing for recovery of all damages that are reasonably foreseeable and that would result from the negligent performance of the sterilization procedure. In analyzing § 920 of the Restatement (Second) Torts (1979), which recommends consideration of benefits conferred in mitigation of damages, the New Mexico Supreme Court concluded that applying emotional benefits to economic loss did not apply similar benefits to similar losses. Lovelace, 805 P.2d at 613-14. Consequently that court denied recovery for emotional distress and also denied any offset of emotional benefits derived from having a healthy child. Id.

Similarly the Supreme Court of Wisconsin declined to offset emotional benefits against economic loss. Marciniak, 450 N.W.2d at 249. The court also declined to offset economic benefits because the court deemed them to be insignificant. Id.

After considering with great care the opinions in support of limited recovery, of full recovery with benefit offsets, and of full recovery without benefit offsets, we have decided to adopt the limited-recovery rule as described above, save for the element of emotional distress arising out of an unwanted pregnancy that results in the birth of a healthy child.

The Supreme Court of Washington in McKernan v. Aasheim, supra, has made some pertinent comments:

"We believe that it is impossible to establish with reasonable certainty whether the birth of a particular healthy, normal child damaged its parents. Perhaps the...

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