Flanagan v. Williams

• Decision Date: 08 July 1993
• Docket Number: No. 92CA27,92CA27
• Citation: 87 Ohio App.3d 768,623 N.E.2d 185
• Parties: FLANAGAN et al., Appellants, v. WILLIAMS et al., Appellees.
• Court: Ohio Court of Appeals

Page 768

87 Ohio App.3d 768

623 N.E.2d 185

FLANAGAN et al., Appellants, v. WILLIAMS et al., Appellees.

No. 92CA27.

Court of Appeals of Ohio, Fourth District, Washington County.

Decided July 8, 1993.

Lamkin, Van Eman, Trimble, Beals & Rourke and Michael J. Rourke, Columbus, for appellants.

Jacobson, Maynard, Tuschman & Kalur, Gayle E. Arnold and David C. Calderhead, Columbus, for appellees.

HARSHA, Presiding Judge.

Trina K. and Richard Flanagan and their minor child Danielle appeal the judgment on the pleadings entered by the Washington County Common Pleas Court in favor of Doctors Williams, Cooper, and White, and the Marietta Gynecological Associates.

Appellants assign the following errors:

"I. The lower court erred in ruling that Ohio does not allow a cause of action for wrongful birth in that the rulings of the Ohio Supreme Court and the vast majority of other jurisdictions provide overwhelming endorsement to 'wrongful birth' causes of action which compel its adoption here as Ohio has always upheld the right of the innocent to be compensated by wrongdoers for interference with protected interests.

"II. The trial court erred in ruling that Ohio law disallows causes of action for wrongful life for the reason that Danielle Flanagan has sustained legally cognizable injuries as a result of appellees' negligence and is entitled to have this court recognize the claim for damages as a matter of Ohio common law."

The record reveals the following facts pertinent to this appeal. On September 7, 1989, Trina Flanagan first consulted with appellees Marietta Gynecological Associates and Dr. Williams, who determined that she was pregnant. On October 5, 1989, an ultrasound was performed on Mrs. Flanagan. Mrs. Flanagan had another ultrasound performed on November 2, 1989. At this time, the technician advised appellee Dr. White of the possibility of a developmental defect. Dr. White reviewed the ultrasound and asked for a repeat ultrasound at a later date. Apparently, neither the technician nor Dr. White indicated to appellants that there was a possible problem. A third ultrasound was conducted on December 27, 1989, at which time it was apparent that Mrs. Flanagan's fetus suffered from spina bifida, a defect of the spinal cord which can cause mild to severe disabilities. Mrs. Flanagan's care was then transferred to Dr. Iams ¹ at Ohio State University for the remainder of Mrs. Flanagan's pregnancy.

It is not clear from the record when the Flanagans actually first learned of the spina bifida diagnosis. ²

Danielle Flanagan was born on March 26, 1990 with severe and permanent disabilities as a result of spina bifida, including permanent paralysis from the waist down, severe mental retardation and hydrocephalus.

Appellants filed a complaint on May 3, 1991, alleging professional negligence or malpractice by appellees for failure to timely diagnose Danielle's spina bifida. ³ Appellees filed a motion for judgment on the pleadings pursuant to Civ.R. 12(C). In a decision filed September 2, 1992, the trial court classified appellants' causes of action as "wrongful birth" and "wrongful life," found that Ohio does not recognize these causes of action, and granted appellees' motion for judgment on the pleadings. A judgment entry was filed September 14, 1992 and appellants timely appealed.

Appellants contend in their assignments of error that the lower court wrongly entered judgment on the pleadings. The determination of a Civ.R. 12(C) motion for judgment on the pleadings is restricted solely to the allegations in the pleadings; all material allegations in the complaint, with all reasonable inferences to be drawn therefrom, are to be construed in favor of the nonmoving party. Nelson v. Pleasant (1991), 73 Ohio App.3d 479, 481, 597 N.E.2d 1137, 1138, citing Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 165-166, 63 O.O.2d 262, 264-265, 297 N.E.2d 113, 116-117. A motion for judgment on the pleadings has been characterized as a belated Civ.R. 12(B)(6) motion and the same standards of review are applied. Nelson, 73 Ohio App.3d at 482, 597 N.E.2d at 1139. Therefore, a reviewing court will reverse judgment on the pleadings if plaintiffs can prove any set of facts which will entitle them to relief. Id. In other words, we independently review the motion to determine if it was properly granted as a matter of law.

This case presents issues of first impression in Ohio. Under appellants' first assignment of error, we must determine whether parents of a child born with congenital defects have a cause of action against physicians who fail to diagnose and/or inform the parents of the defect within the time period that they could choose whether to terminate the pregnancy. Appellants' second assignment of error presents the issue of whether the child born with the congenital defects has a cause of action against the physician. For the reasons which follow, we answer the first question in the affirmative and the second in the negative.

Various jurisdictions have recognized several different "prenatal" torts. A "wrongful pregnancy" cause of action is a lawsuit filed by a parent on his or her own behalf for damages resulting from the birth of a healthy, normal child following a failed sterilization. Johnson v. Univ. Hosp. of Cleveland (1989), 44 Ohio St.3d 49, 540 N.E.2d 1370. Ohio allows this cause of action for a failed sterilization, id.; Bowman v. Davis (1976), 48 Ohio St.2d 41, 2 O.O.3d 133, 356 N.E.2d 496, and in the case of a failed abortion, Harmath v. Goler (1990), 49 Ohio St.3d 62, 550 N.E.2d 476.

In a "wrongful birth" cause of action, parents bring an action seeking damages for the birth of an impaired child when the physician or health care provider failed to diagnose or discover a genetic defect in the parents or fetus through prenatal testing or counseling in time for the parent to obtain an abortion or prevent pregnancy. Johnson, 44 Ohio St.3d at 51, 540 N.E.2d at 1371.

A "wrongful life" action is brought by or on behalf of the child for negligent failure to sterilize parents. Id. The term "wrongful life" has also been used to describe actions by a child corresponding to the parents' "wrongful birth" cause of action. See Harbeson v. Parke-Davis, Inc. (1983), 98 Wash.2d 460, 656 P.2d 483.

The Ohio Supreme Court has recognized the right of parents to recover in the "wrongful pregnancy" fact situation under common-law tort principles. Johnson, supra; Bowman, supra. However, when the child is born normal and healthy, damages are limited to the pregnancy itself; there can be no recovery of child-rearing expenses. Johnson, supra, paragraph two of the syllabus; Harmath, supra. In Bowman, the parents sued physicians for damages when twins, one of whom had disabilities, were born following a failed sterilization attempt. The court did not address the issue of damages. While the Johnson court did not specifically address the measure of damages when the child is not born healthy, the logical result is that in such a situation, the parents would be entitled to recover the extra costs of raising the child over and above the ordinary child-rearing expenses. In Johnson, the court based its decision to limit traditional tort damages on a public policy that the birth of a normal, healthy child cannot be an injury to her parents. Johnson, supra, paragraph two of the syllabus. We may logically conclude that when an unhealthy child is born, the parents suffer additional compensable injuries which may be proven at trial.

Neither the General Assembly nor Ohio courts have addressed the situation in the case at bar where the parents allege they were injured because they were not informed of the child's disabilities in time for them to exercise their right to choose whether to terminate the pregnancy. See Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, rehearing denied (1973), 410 U.S. 959, 93 S.Ct. 1409, 35 L.Ed.2d 694; Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674.

Appellees argue that appellants essentially state a new cause of action which should be recognized, if at all, by the Ohio Supreme Court or the Ohio General Assembly, and not by this court. See High v. Howard (1992), 64 Ohio St.3d 82, 592 N.E.2d 818, overruled on other grounds in Gallimore v. Children's Hosp. Med. Ctr. (1993), 67 Ohio St.3d 244, 617 N.E.2d 1052. However, we do not agree that an expansion of the common law is involved in the parents' claim. Regardless of how it is termed, Mr. and Mrs. Flanagan state a cause of action which sounds in medical malpractice utilizing traditional tort principles. In order to establish malpractice, appellants must prove that the injury complained of, here the denial of their right to make an informed choice about pregnancy termination, was directly and proximately caused by a practice that a physician of ordinary skill, care or diligence would not have done. Turner v. Children's Hosp., Inc. (1991), 76 Ohio App.3d 541, 548, 602 N.E.2d 423, 427, citing Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 75 O.O.2d 184, 346 N.E.2d 673, paragraph one of the syllabus. We note that most jurisdictions allow the parents a cause of action when they are not informed of congenital defects in sufficient time to allow them to exercise their right to choose whether to terminate or prevent pregnancy either on a "wrongful birth" cause of action or under traditional common-law medical malpractice law. ⁴

A review of the record clearly demonstrates that the appellants stated a claim of medical negligence sufficient to defeat a Civ.R. 12(C) motion for judgment on the pleadings. Appellants alleged a physician-patient relationship between Mrs. Flanagan and appellees. The physician-patient relationship is a fiduciary one based on trust and confidence and obligating the physician to exercise good faith. Tracy v. Merrell Dow Pharmaceuticals, Inc. (1991), 58 Ohio St.3d 147, 150, 569...