Fassoulas v. Ramey

• Decision Date: 19 January 1984
• Docket Number: No. 62220,62220
• Citation: 450 So.2d 822
• Parties: John FASSOULAS, et al., Petitioners, v. John R. RAMEY, et al., Respondents.
• Court: Florida Supreme Court

Page 822

450 So.2d 822

John FASSOULAS, et al., Petitioners, v. John R. RAMEY, et al., Respondents.

No. 62220.

Supreme Court of Florida.

Jan. 19, 1984.

Rehearing Denied June 21, 1984.

Arnold R. Ginsberg of Horton, Perse & Ginsberg, and Hawkesworth & Schmick, Miami, for petitioners.

Richard A. Sherman, Fort Lauderdale, and Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane, Miami, for respondents.

PER CURIAM.

This cause is before the Court on a decision certified by the Third District Court of Appeal as passing upon a question of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. The issue in this case concerns the scope of damages in a "wrongful birth" negligence suit.

Plaintiffs, Edith and John Fassoulas, were married and had two children, both of whom had been born with severe congenital abnormalities. After much consideration, they decided not to have any more children due to the fear of having another physically deformed child and the attendant high cost of medical care. They then decided that John would undergo a vasectomy. This medical procedure was performed in January 1974 by defendant, Dr. Ramey. However, due to the negligence of the defendant in performing the operation, in giving medical advice concerning residual pockets of sperm, and in examining and judging the viability of sperm samples, Edith twice became pregnant and gave birth to two children. The first of these, Maria, was born in November 1974 and had many congenital deformities. Roussi, the second of the post-vasectomy children and the fourth Fassoulas child, was born in September 1976 with a slight physical deformity which was corrected at birth; he is now a normal, healthy child.

The plaintiffs sued Dr. Ramey and his clinic in tort based on medical malpractice for the two "wrongful births." They sought as damages Edith's past and future lost wages, her anguish and emotional distress at twice becoming pregnant, her loss of the society, companionship and consortium of her husband, John's mental anguish and emotional distress, his loss of the society, companionship and consortium of his wife, medical and hospital expenses and the expenses for the care and upbringing of the two new children until the age of twenty-one.

At trial, the jury found in favor of the plaintiffs, finding the defendants 100% negligent with reference to Maria and 50% negligent with reference to Roussi. The plaintiffs were found to be comparatively negligent as to the birth of Roussi. Damages were assessed in the amount of $250,000 for the birth of Maria and $100,000 for the birth of Roussi, the latter sum being reduced to $50,000 because of the plaintiffs' comparative negligence.

Upon appeal, the district court affirmed as to liability but affirmed in part and reversed in part as to damages. Ramey v. Fassoulas, 414 So.2d 198 (Fla. 3d DCA 1982). As to these damages, the district court held: damages for the ordinary rearing expenses, past and future, for both children were not recoverable; damages for the rearing expenses, past and future, for a physically and mentally defective child were recoverable over and above ordinary rearing costs associated with raising a child to age eighteen. The district court remanded for a new trial on the issue of damages only. It also certified the following question:

WHETHER THE PARENTS OF A CHILD, WHO IS BORN AS A RESULT OF A NEGLIGENT VASECTOMY, ARE ENTITLED IN A "WRONGFUL BIRTH" NEGLIGENCE SUIT TO PAST AND FUTURE DAMAGES FOR THE CARE AND UPBRINGING EXPENSES OF THE SUBJECT CHILD AS AGAINST THE TORTFEASOR PHYSICIAN WHO NEGLIGENTLY PERFORMED THE VASECTOMY?

This question is the sole issue for our consideration in this cause; the issue of liability was not appealed to us and for the purposes of this proceeding, liability has been conceded. For the reasons expressed herein, we answer the question as did the district court, holding that ordinary rearing expenses for both a normal and defective child are not recoverable, and only the special expenses associated with raising a defective child to the age of majority are recoverable. ¹ We thus approve the decision of the district court below.

The rule in Florida is that "a parent cannot be said to have been damaged by the birth and rearing of a normal, healthy child." Public Health Trust v. Brown, 388 So.2d 1084, 1085 (Fla. 3d DCA 1980), petition denied, 399 So.2d 1140 (Fla.1981) (footnote omitted). "[I]t has been imbedded in our law for centuries that the father and now both parents or legal guardians of a child have the sole obligation of providing the necessaries in raising the child, whether the child be wanted or unwanted." Ramey v. Fassoulas, 414 So.2d at 200. "The child is still the child of the parents, not the physician, and it is the parents' legal obligation, not the physician's, to support the child." Id. For public policy reasons, we decline to allow rearing damages for the birth of a healthy child. As stated by the Supreme Court of Wisconsin:

To permit the parents to keep their child and shift the entire cost of its upbringing to a physician who failed to determine or inform them of the fact of pregnancy would be to create a new category of surrogate parent. Every child's smile, every bond of love and affection, every reason for parental pride in a child's achievements, every contribution by the child to the welfare and well-being of the family and parents, is to remain with the mother and father. For the most part, these are intangible benefits but they are nonetheless real. On the other hand, every financial cost or detriment--what the complaint terms "hard money damages"--including the cost of food, clothing and education, would be shifted to the physician.... We hold that such result would be wholly out of proportion to the culpability involved....

Rieck v. Medical Protective Co., 64 Wis.2d 514, 518, 219 N.W.2d 242, 244-45 (1974) (footnote omitted). We agree with this reasoning and hold that, as a matter of law, the "benefits to the parents outweigh their economic loss in rearing and educating a healthy, normal child." Terrell v. Garcia, 496 S.W.2d 124, 128 (Tex.Civ.App.1973), cert. denied, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974); Public Health Trust v. Brown.

The same reasoning forcefully and correctly applies to the ordinary, everyday expenses associated with the care and upbringing of a physically or mentally deformed child. We likewise hold as a matter of law that ordinary rearing expenses for a defective child are not recoverable as damages in Florida.

We agree with the district court below that an exception exists in the case of special upbringing expenses associated with a deformed child. See Moores v. Lucas, 405 So.2d 1022 (Fla. 5th DCA 1981). Special medical and educational expenses, beyond normal rearing costs, are often staggering and quite debilitating to a family's financial and social health; "indeed, the financial and emotional drain associated with raising such a child is often overwhelming to the affected parents." Ramey v. Fassoulas, 414 So.2d at 201. There is no valid policy argument against parents being recompensed for these costs of extraordinary care in raising a deformed child to majority. We hold these special upbringing costs associated with a deformed child to be recoverable.

We approve the decision of the district court below that remanded the instant proceeding to the trial court for a new trial on damages only. With respect to the issue certified to this Court relating to rearing expenses, the trial court will comply with the views heretofore expressed in this opinion. As to the remaining consequential damages that went to the jury, i.e., pain and suffering, lost wages and medical expenses, these were not appealed by the defendants, and we do not address them.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVERTON and McDONALD, JJ., concur.

EHRLICH, J., dissents with an opinion with which ADKINS and SHAW, JJ., concur.

EHRLICH, Judge, dissenting.

I believe the opinion of the district court below, Ramey v. Fassoulas, 414 So.2d 198 (Fla. 3d DCA 1982), which is grounded upon a previous district court opinion that is clearly untenable in its logic, Public Health Trust v. Brown, 388 So.2d 1084 (Fla. 3d DCA 1980), is seriously in error in both its reasoning and holding. Because the present majority opinion adopts the reasoning of the lower court opinion and approves its holding, I dissent.

A brief recitation of the history of this developing area of tort law is necessary in order to show the foundation of my viewpoint. See generally Comment, Busting the Blessing Balloon: Liability for the Birth of an Unplanned Child, 39 Alb.L.Rev. 221 (1975); Note, Remedy for the Reluctant Parent: Physicians' Liability for the Post-Sterilization Conception and Birth of Unplanned Children, 27 U.Fla.L.Rev. 158 (1974); Note, Sterilization and Family Planning: The Physician's Civil Liability, 56 Geo.L.J. 976 (1968).

The first case to consider the rights of parents after an unsuccessful sterilization operation was Christensen v. Thornby, 192 Minn. 123, 255 N.W. 620 (1934). Decided nearly half a century ago, that case involved a plaintiff husband's undergoing a vasectomy to prevent his wife's pregnancy and the resultant endangering of her life (due to difficulties she had had with the birth of a previous child). In spite of the vasectomy, the wife became pregnant. She survived the childbirth with no damage to her health. The husband brought suit for his anxiety and expenses, basing his cause of action on the failure of the operation to fulfill the physician's promise that the operation had been successful. The trial court denied relief and the Minnesota Supreme Court affirmed on the ground that the husband, who pleaded in deceit, had failed to allege the fraudulent intent required to support such an allegation. In language not necessary to the holding, however, the court opined that "[i]nstead of...