Etkind v. Suarez

Decision Date06 July 1999
Docket NumberNo. S98G1978.,S98G1978.
Citation519 S.E.2d 210,271 Ga. 352
PartiesETKIND et al. v. SUAREZ et al.
CourtGeorgia Supreme Court

OPINION TEXT STARTS HERE

Myles E. Eastwood, Atlanta, for appellants.

Alston & Bird, Judson Graves, Sterling G. Culpepper, Atlanta, for appellees.

Gerald R. Weber, Jr., David S. Bills, William Q. Bird, David Wm. Boone, Finch, McCranie, Brown, Hendrix & Sullivan, Ellis R. Brown, Love & Willingham, Allen S. Willingham, Traci G. Courville, Vicki M. Miller, Allen & Peters, Jonathan C. Peters, David A. Cook, Atlanta, James E. Carter, Madison, Cathey & Strain, Dennis T. Cathey, Edward E. Strain III, Cornelia, Cook & Connelly, Bobby Lee Cook, Summerville, Cook, Noell, Tolley, Bates & Michael, J. Vincent Cook, Athens, Dehler & Griffin, Mark F. Dehler, Decatur, Doffermyre, Shields, Canfield, Knowles & Devine, Ralph I. Knowles, Foy R. Devine, Atlanta, Edenfield, Cox & Classens, Gerald M. Edenfield, Statesboro, O. Wayne Ellerbee, Valdosta, Robert K. Finnell, Rome, Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., Cordele, Williams & Henry, Philip C. Henry, Johnson & Ward, William C. Lanham, Clark H. McGehee, Atlanta, Ashman, Lasky & Cooper, Jeffrey W. Lasky, Savannah, Thomas W. Malone, Mark L. Stuckey, Atlanta, Reynolds & McArthur, W. Carl Reynolds, Macon, Savage, Herndon & Turner, Brent J. Savage, Savannah, Stephens & Shuler, Charles W. Stephens, Gainesville, Gambrell & Stolz, Irwin W. Stolz, Jr., Walbert & Mathis, David F. Walbert, Wood & Grant, L. Lin Wood, Jr., Atlanta, amici curiae.

CARLEY, Justice.

Throughout her pregnancy, Dr. Jennifer Etkind was a patient of Dr. Ramon Suarez. After giving birth to a child with Down's Syndrome, she and her husband filed suit against Dr. Suarez and his partnership, asserting a "wrongful birth" claim. Such a claim "is brought by the parents of an impaired child and alleges basically that, but for the treatment or advice provided by the defendant, the parents would have aborted the fetus, thereby preventing the birth of the child." Atlanta Obstetrics & Gynecology Group v. Abelson, 260 Ga. 711, 713, 398 S.E.2d 557 (1990), rev'g 195 Ga.App. 274, 392 S.E.2d 916 (1990). The trial court granted the defendants' motion for judgment on the pleadings. The Court of Appeals affirmed, concluding that Atlanta Obstetrics & Gynecology Group v. Abelson, supra, remains controlling precedent for the proposition that, unless and until it is authorized by the General Assembly, a cause of action for wrongful birth will not be recognized in Georgia. Etkind v. Suarez, 234 Ga.App. 108, 505 S.E.2d 831 (1998). We granted certiorari to review this holding of the Court of Appeals. In accordance with the fundamental principles of separation of powers and stare decisis, we are compelled to adhere to Abelson and, therefore, to affirm the Court of Appeals. 1. Although a plurality of the Court of Appeals recognized the viability of a wrongful birth claim in Abelson, this Court granted certiorari and held "that `wrongful birth' actions shall not be recognized in Georgia absent a clear mandate for such recognition by the legislature." Abelson, supra at 714, 398 S.E.2d 557. Thus, Abelson established that the then-existing medical malpractice statute did not authorize a wrongful birth cause of action, and that additional legislation was necessary because

this is an area more properly suited to legislative action as the legislature offers a forum wherein all of the issues, policy considerations and long range consequences involved in recognition of the novel concept of a "wrongful birth" cause of action can be thoroughly and openly debated and ultimately decided.

Abelson, supra at 718-719, 398 S.E.2d 557. Because the General Assembly has not enacted any legislation authorizing a recovery for the wrongful birth of a child, Dr. Etkind and her husband have no viable claim unless Abelson can be distinguished or is overruled.

Initially, the Etkinds contend that Abelson is factually distinguishable due to the medical advancements in the area of prenatal care which have occurred since that case was decided. However, Abelson, supra at 718, 398 S.E.2d 557, anticipated these developments and indicated that "with the continued advances in medical science which are occurring daily, the problems presented by the concept of `wrongful birth' actions can only become increasingly more numerous and more complex." Abelson, supra at 718, 398 S.E.2d 557. Thus, the rapid pace at which medicine has indeed moved in the interim validates, rather than distinguishes, Abelson `s ultimate conclusion that a cause of action for wrongful birth can be created only through the legislative process.

More importantly, the doctrine of separation of powers is an immutable constitutional principle which must be strictly enforced. McCutcheon v. Smith, 199 Ga. 685, 691(2), 35 S.E.2d 144 (1945). Under that doctrine, statutory "`"construction belongs to the courts, legislation to the legislature. We can not add a line to the law, nor can the legislature enlarge or diminish a law by construction." `[Cits.]" Modern Homes Constr. Co. v. Burke, 219 Ga. 710, 715, 135 S.E.2d 383 (1964). According to Abelson, the judiciary cannot recognize a cause of action for wrongful birth, and the authority of the courts extends only to construction of the provisions of whatever statute the General Assembly may choose to enact in that regard. Despite ensuing medical advancements, no legislation amending the malpractice statute so as to permit a recovery for wrongful birth has been enacted. If, under the constitutional mandate of separation of powers, authorization of a wrongful birth claim was exclusively a legislative function when Abelson was decided, it does not now become a judicial function simply because the parameters of the medical knowledge relevant to assessing the defendant's liability for such a claim may have changed. To the contrary, the lack of a legislative response indicates that the General Assembly has not been persuaded by any reason, including subsequent medical advances, to exercise its constitutional power to amend the malpractice act so as to permit a recovery for wrongful birth claims. See Abernathy v. City of Albany, 269 Ga. 88, 90, 495 S.E.2d 13 (1998). Thus, Abelson cannot be distinguished factually as controlling authority for the invalidity of the Etkinds' claim.

2. In the alternative, Dr. and Mr. Etkind assert that Abelson is distinguishable on legal grounds, because it conflicts with the subsequent decision in Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). In Casey, supra at 846(I), 112 S.Ct. 2791, the Supreme Court of the United States reaffirmed "the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State." Here, however, the Etkinds do not contend that the State of Georgia itself unduly interfered with Dr. Etkind's original abortion choice. Instead, the Etkinds challenge this Court's construction of the tort law of Georgia in Abelson as barring their subsequent recovery of damages from Dr. Suarez based upon his alleged interference with that choice. Nothing in Casey holds that the Federal Constitution compels the states to recognize a woman's right to bring a civil suit against her obstetrician for the negligent failure to assist her in making an informed abortion decision. The narrow holding in Abelson is that, absent legislation, parents in Georgia cannot recover damages for the wrongful birth of their child. This holding does not violate the constitutional rights of the parents of an impaired child, because the refusal to recognize a wrongful birth claim absent authorizing legislation does not constitute undue interference by Georgia in the exercise of the right to elect to have an abortion.

Georgia has not commanded doctors to interfere with a woman's constitutional rights. Georgia's reluctance to interject itself into the private relations of its citizens cannot be construed as affirming or encouraging private conduct for purposes of the Fourteenth Amendment. To find state action whenever a state has not acted would broaden state action to encompass practically all private conduct.

Campbell v. United States, 962 F.2d 1579, 1583 (11th Cir.1992). Abelson did not leave parents of impaired children with no possibility of obtaining a civil remedy, but held only that a cause of action for wrongful birth must be created by the legislative, rather than the judicial, branch of this state's government. Although Georgia itself cannot unduly interfere with a woman's constitutional right to obtain an abortion, this Court retains the exclusive power to determine whether parents of a child have a viable claim against an obstetrician under the tort law of this state. This Court lawfully exercised that power in Abelson.

Even if it could somehow be determined that the Georgia Supreme Court chose to disallow a cause of action for wrongful birth because it would promote abortion, this failure of Georgia to remedy the wrong committed by a private party does not make that party's act an unconstitutional state act.

Campbell v. United States, supra at 1584. Casey does not compel an interpretation of the law of Georgia different from that reached in Abelson.

3. The Etkinds urge that we should overrule Abelson because it violates the Equal Protection Clause of the Georgia Constitution, which they contend guarantees them the same right to sue that was afforded to parents by the decision in Fulton-DeKalb Hosp. Auth. v. Graves, 252 Ga. 441, 314 S.E.2d 653 (1984).

The Equal Protection Clause of both the Federal and Georgia Constitutions requires that similarly situated individuals be treated in a similar manner. City of Atlanta v. Watson, 267 Ga. 185, 187(1), 475 S.E.2d 896 (1996). Thus, only those who are members of the same class as the parents in Graves can rely upon ...

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