Fulton-DeKalb Hosp. Authority v. Graves

• Decision Date: 17 April 1984
• Docket Number: FULTON-D,No. 40588,40588
• Citation: 314 S.E.2d 653,252 Ga. 441
• Parties: TheeKALB HOSPITAL AUTHORITY v. GRAVES et al.
• Court: Georgia Supreme Court

Page 653

314 S.E.2d 653

252 Ga. 441

The FULTON-DeKALB HOSPITAL AUTHORITY v. GRAVES et al.

No. 40588.

Supreme Court of Georgia.

April 17, 1984.

Earle B. May, Jr., Bernard Taylor, G. Conley Ingram, Alston & Bird, Atlanta, for the Fulton-DeKalb Hosp. Authority, d/b/a Grady Memorial Hosp.

Robert L. Littlefield, Jr., Rose H. Staples, Decatur, for Claudia Mae Graves et al.

CLARKE, Justice.

Before the court is a case of first impression in this state which presents two questions: (1) Whether Georgia will recognize a cause of action for wrongful pregnancy or wrongful conception and, if so, (2) whether the damages recoverable include the cost of rearing and educating the child. This is not one of those cases which involves foreseeability of the possible birth of a child with a birth defect or other congenital ailment. Therefore, we cannot here reach the issue of measure of damages in such a case.

Plaintiff Claudia Mae Graves, appellee here, gave birth to a child in 1979. Following the delivery, a sterilization procedure was performed upon her by a staff physician of defendant hospital. Subsequently she gave birth to a child with a "club foot." Ms. Graves sued defendant hospital for negligence and for fraudulent misrepresentation. The trial court granted partial summary judgment to defendant on the question of consent. The trial court denied summary judgment to defendant on defendant's contention that no cause of action exists in Georgia for wrongful pregnancy and, if such cause of action does exist, the measure of damages is pecuniary expenses as a direct result of the birth. Defendant appeals the denial of summary judgment. We affirm in part and reverse in part.

Because of the unique division of opinions among the members of the court, we are indicating the position of the court in each of the three divisions of this opinion.

1. Although there is great confusion in the use of the terms wrongful pregnancy, wrongful conception, wrongful birth, and wrongful life, we will refer to wrongful pregnancy or wrongful conception actions as those brought by the parents of a child whose conception or birth was due to the negligence of a physician in performing a sterilization or abortion. An action brought by a child against the parents or physician on the theory that because of his illegitimacy or birth defects he would have been better not born has found almost no support in the law. However, most jurisdictions now allow an action by parents against the physician for wrongful pregnancy or wrongful conception. Ann., Tort Liability for Wrongfully Causing One to Be Born, 83 A.L.R.3d 15.

The United States Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), has recognized that a woman has the right to plan the size of her family. Various arguments based on policy as well as practical considerations have been raised against a cause of action for wrongful pregnancy or wrongful conception. It has been suggested that recognition of such a cause of action would open the door to fraudulent claims, that the injury is remote from the negligence, that recovery would be out of proportion to the defendant's culpability. But these same arguments have been made in connection with countless other tort claims, and the problems presented have been dealt with in the course of traditional tort litigation. Note, "Wrongful Birth: A Child of Tort Comes of Age," 50 U.Cin.L.Rev. 65 (1981).

With this background, we address the first question before us and find no reason why an action for wrongful pregnancy or wrongful conception should not be recognized in Georgia. Such an action is no more than a species of malpractice which allows recovery from a tortfeasor in the presence of an injury caused by intentional or negligent conduct.

All the Justices concur with Division One, except MARSHALL, P.J., and BELL, J., who dissent.

2. The more difficult question is the measure of damages. The vast majority of courts allow recovery of expenses for the unsuccessful medical procedure which led to conception or pregnancy, for pain and suffering, medical complications, costs of delivery, lost wages, and loss of consortium. Cockrum v. Baumgartner, 95 Ill.2d 193, 69 Ill.Dec. 168, 447 N.E.2d 385, cert. den. sub nom. Raja v. Michael Reese Hosp. & Med. Center, 464 U.S. 846, 104 S.Ct. 149, 78 L.Ed.2d 139 (1983). These damages are consistent with the damages which may be recovered in any malpractice case and represent no real deviation from traditional tort remedies. We hold that these damages are subject to recovery.

All the Justices concur with Division Two, except MARSHALL, P.J., and BELL, J., who dissent.

3. The issue of recovery for the cost of rearing of the child raises questions not so easily answered by the application of logic or reliance upon legal precedent. In evaluating a claim for the cost of rearing a child we must consider the value which our society places upon human life in general and on the lives of children in particular. We instinctively recoil from the notion that parents may suffer a compensable injury on the birth of a child. In University of Arizona Health Sciences Center v. Superior Court of State of Arizona, County of Maricopa, 136 Ariz. 579, 667 P.2d 1294 (1983), the Supreme Court of Arizona concluded, "... we believe our function is to leave the emotion and sentiment to others and attempt to examine the problem with logic and by application of the relevant principles of law." Id. at 1298-99. With all respect, we do not agree that a strict application of principles of law will suffice to resolve the complicated questions that arise when the advance of science outstrips the development of ethical considerations. This is not to say that we may lapse into sentimentality or embrace a maudlin picture of home and family, ignoring often harsh realities. Rather, we must strive to bring the full creativity of the law to bear upon these serious questions.

Many of the same arguments marshalled against the cause of action in general have been propounded against cost of rearing the child as an element of damages. See, e.g., White v. United States, 510 F.Supp. 146 (D.Kansas 1981) (construing Georgia law). However, a minority of jurisdictions allow recovery of the expense of child rearing. Of these, only one, Ohio, allows recovery with no offset for the benefit derived from the society and comfort provided by the child. See Bowman v. Davis, 48 Ohio St.2d 41, 356 N.E.2d 496 (1976). Jurisdictions which allow recovery of the expense of raising a healthy child have...