Foy v. Greenbolt

• Decision Date: 18 March 1983
• Citation: 190 Cal.Rptr. 84,141 Cal.App.3d 1
• Parties: Virgie FOY and Reffie Foy, etc., Plaintiffs and Appellants, v. Bradley GREENBLOTT, et al., Defendants and Respondents. Civ. 48942.
• Court: California Court of Appeals Court of Appeals

Page 84

190 Cal.Rptr. 84

141 Cal.App.3d 1

Virgie FOY and Reffie Foy, etc., Plaintiffs and Appellants, v. Bradley GREENBLOTT, et al., Defendants and Respondents.

Civ. 48942.

Court of Appeal, First District, Division 4, California.

March 18, 1983.

Louis C. Castro, Iwama & Castro, San Jose, for plaintiffs and appellants.

Jeffrey O. Brown, Farbstein, Brown & Pillsbury, San Mateo, Eugene P. LaMore, Michael G. Ackerman, Popelka, Allard, McCown & Jones, John R. Williams, Hession, Creedon, Hamlin, Kelly, Hanson & Williams, San Jose, Bruce A. Werlhof, Inge Wagner, Fountain Valley, for defendants and respondents.

CHRISTIAN, Associate Justice.

Virgie Foy, an incompetent person, and Reffie Foy, her minor child, appeal from a judgment on demurrer dismissing an action by which damages were sought on allegations that Virgie became pregnant, and Reffie was born, because of negligence on the part of respondents Bradley Greenblott, M.D., Richard Slade, M.D., Ronald Diebel, M.D., San Jose Care and Guidance Center, and the County of Santa Clara.

Appellants alleged that Virgie Foy had been adjudicated a gravely disabled and incompetent person under the Lanterman Petris Short Act (Welf. & Inst.Code, § 5000 et seq.). The superior court appointed the Santa Clara County public guardian conservator of Virgie. The order of appointment denied the conservatee the rights to consent to or to refuse any medical treatment related or unrelated to her gravely disabled condition. The county placed Virgie in the San Jose Care and Guidance Center, a private, locked mental health facility licensed by the state. Defendants Greenblott, Slade and Diebel were plaintiffs' attending and treating physicians at that facility.

The complaint recites that defendants were aware that Virgie was a "gravely disabled person with a medical history of irresponsible sexual behavior toward patients and other persons." Although the Care and Guidance Center maintained both male and female patients, defendants failed to supervise plaintiff or to provide her with contraceptive devices or counseling. As a proximate cause of this alleged negligence, Virgie Foy became pregnant. Further, defendants failed to discover or to diagnose her pregnancy until two weeks before she delivered. Had the pregnancy been "timely discovered or diagnosed," plaintiffs believe the county as conservator "would have arranged for ... Virgie Foy to undergo a therapeutic abortion." Virgie Foy gave birth to Reffie in due time.

Appellants allege they have each been "injured in body and mind" and suffered great pain and suffering as a consequence of the pregnancy of Virgie and the ultimate birth of Reffie. Recovery for various future costs "associated with the growth and care of Reffie" are sought. Appellants also allege that respondents' negligent failure to prevent the birth of Reffie has deprived mother and child of "fully knowing, caring for, loving and enjoying" one another. Finally, appellants seek awards of exemplary damages.

I.

Appellants do not seek to hold the county vicariously liable for the alleged malpractice of defendant physicians and the Care and Guidance Center. Instead, they assert that the public guardian was personally negligent in his selection of the Center for the conservatee's placement and in his failure to monitor the care and supervision received by her there.

The county claims immunity under various provisions of the California Tort Claims Act (Gov.Code, § 810 et seq.). It is clear that the conservator's selection of a custodian is a complex, discretionary decision immunized under section 820.2. (See Thompson v. County of Alameda (1980) 27 Cal.3d 741, 748-749, 167 Cal.Rptr. 70, 614 P.2d 728.) However, the public guardian had a continuing responsibility to see that Virgie received adequate care at the Center and the performance of this duty necessarily involved ministerial acts and omissions not shielded by section 820.2. (See Buford v. State of California (1980) 104 Cal.App.3d 811, 826, 164 Cal.Rptr. 264.) Such conduct is, however, protected in the circumstances here alleged by another part of the statute. Plaintiffs' actions are barred by section 854.8, which provides in relevant part:

"(a) Notwithstanding any other provision of this part, except as provided in this section and in Sections 814, 814.2, 855, and 855.2, a public entity is not liable for:

(1) An injury proximately caused by a patient of a mental institution.

(2) An injury to an inpatient of a mental institution."

Appellants' injuries are of the type described. The exception in subdivision (d) of the statute for medical malpractice of public employees is inapplicable as appellants' actions are based on the conduct of the conservator, rather than that of the private medical personnel at the Center. Appellants seek to avoid section 854.8 by arguing that the Care and Guidance Center is not a "mental institution" because it is privately operated; this characterization is meritless. "Mental institution" refers to any "county psychiatric hospital" as that term is defined in Welfare and Institutions Code section 7100. (See Gov.Code, §§ 854.2, 854.3.) That statute in turn expressly includes private facilities with which the county contracts for the provision of treatment to conservatees. (Welf. & Inst.Code, §§ 7100, 7103.) As section 854.8 is dispositive of the county's exposure to appellants' actions, it is unnecessary for us to consider whether Government Code section 856, subdivision (a), or Welfare and Institutions Code section 5358.1 provide alternative grounds for immunity here.

II.

Virgie and Reffie seek general and punitive damages for the deprivation of a normal parent-child relationship. Appellants insist these claims are distinguishable from actions for loss of parental or filial consortium, as they seek recovery for the creation of an impaired relationship rather than injury to an existing one.

Losses of parental or filial consortium are not actionable. "[T]he inadequacy of monetary damages to make whole the loss suffered, considered in light of the social cost of paying such awards, constitutes a strong reason for refusing to recognize the asserted claim." (Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441, 447, 138 Cal.Rptr. 302, 563 P.2d 858; also see Baxter v. Superior Court (1977) 19 Cal.3d 461, 138 Cal.Rptr. 315, 563 P.2d 871.) The distinction claimed by plaintiffs actually aggravates the problems of ascertaining damages as these actions would require comparison of plaintiffs' impaired relationship with a hypothetical normal parent-child relationship rather than with any actual relationship existing before the tort.

The hazards of awarding general damages for the creation of an undesirable situation, rather than for injury to preexisting interests, received attention in Turpin v. Sortini (1982) 31 Cal.3d 220, 182 Cal.Rptr. 337, 643 P.2d 954. The Turpin court recognizes in an infant a cause of action for "wrongful life" in certain circumstances. However, only special damages, such as medical and educational expenses associated with the infant's disability, are recoverable. "[W]ith respect to the child's claim for pain and suffering or other general damages--recovery should be denied because (1) it is simply impossible to determine in any rational or reasoned fashion whether the plaintiff has in fact suffered an injury in being born impaired rather than not being born, and (2) even if it were possible to overcome the first hurdle, it would be impossible to assess general damages in any fair, nonspeculative manner." (Turpin v. Sortini, supra, 31 Cal.3d 220, 234-235, 182 Cal.Rptr. 337, 643 P.2d 954.) Just as general damages are not available to compensate a plaintiff for her own existence, they cannot be awarded for the creation of an impaired parent-child relationship in place of no relationship at all. The court acted correctly when it sustained without leave to amend respondents' demurrers to these causes of action.

III.

The most critical items in the complaint are, of course, the actions of Virgie Foy for "wrongful birth" and of Reffie Foy for "wrongful life." ¹ We examine first the former of these.

California law now permits a mother to hold medical personnel liable for their negligent failure to prevent or to terminate a pregnancy. In Custodio v. Bauer (1967) 251 Cal.App.2d 303, 59 Cal.Rptr. 463, the appellate court rejected defendant's contentions that "pregnancy, the ensuing birth of a child, and the costs and expenses of the delivery and rearing of a child, are not legally cognizable injuries." (Custodio v. Bauer, supra, 251 Cal.App.2d 303, 310, 59 Cal.Rptr. 463.) The court refused to impose "public policy" limitations on the types of damages recoverable but held that ordinary tort principles of compensation for "all the detriment proximately caused" should govern. (Custodio v. Bauer, supra, 251 Cal.App.2d 303, 325, 59 Cal.Rptr. 463; see Civ.Code § 3333.) Similarly, in Stills v. Gratton (1976) 55 Cal.App.3d 698, 127 Cal.Rptr. 652, a judgment of nonsuit was held to be improper in a wrongful birth action based upon the negligent performance of a therapeutic abortion. These decisions do not specify recoverable damages; they hold simply that should the plaintiff prevail she is entitled to "full compensation" under "ordinary tort principles." (Stills v. Gratton, supra, 55 Cal.App.3d 698, 709, 127 Cal.Rptr. 652.) In each case, the fact that the infant had been born healthy and had no apparent hereditary defects was no bar to the suit. (Custodio v. Bauer, supra, 251 Cal.App.2d 303, 309, fn. 3, 59 Cal.Rptr. 463; Stills v. Gratton, supra, 55 Cal.App.3d 698, 703, 127 Cal.Rptr. 652.) Finally, although the Supreme Court has had no occasion to rule upon the validity of wrongful birth actions, in the course of its opinion in Turpin v. Sortini, supra, 31 Cal.3d 220, 225-227, 182 Cal.Rptr. 337, 643 P.2d 954, the court discusses with apparent approval Custodio, Stills and several...