Gallagher v. Duke University

• Decision Date: 29 August 1988
• Docket Number: 87-1061 and 87-1062,Nos. 87-1056,s. 87-1056
• Citation: 852 F.2d 773
• Parties: John Albert GALLAGHER; Kimberly Miriam Gallagher, Plaintiffs-Appellees, and Lisa Marie Gallagher, by next friend Michelle Robertson, Plaintiff, v. DUKE UNIVERSITY, Defendant-Appellant, and The Private Diagnostic Clinic; George H. Mickey, Ph.D., Defendants. John Albert GALLAGHER; Kimberly Miriam Gallagher, Plaintiffs-Appellants, and Lisa Marie Gallagher, by next friend Michelle Robertson, Plaintiff, v. DUKE UNIVERSITY; the Private Diagnostic Clinic; George H. Mickey, Ph.D., Defendants-Appellees. John Albert GALLAGHER; Kimberly Miriam Gallagher, Plaintiffs-Appellees, and Lisa Marie Gallagher, by next friend Michelle Robertson, Plaintiff, v. George H. MICKEY, Ph.D., Defendant-Appellant, and Duke University; the Private Diagnostic Clinic, Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 773

852 F.2d 773

John Albert GALLAGHER; Kimberly Miriam Gallagher, Plaintiffs-Appellees, and Lisa Marie Gallagher, by next friend Michelle Robertson, Plaintiff, v. DUKE UNIVERSITY, Defendant-Appellant, and The Private Diagnostic Clinic; George H. Mickey, Ph.D., Defendants.

John Albert GALLAGHER; Kimberly Miriam Gallagher, Plaintiffs-Appellants, and Lisa Marie Gallagher, by next friend Michelle Robertson, Plaintiff, v. DUKE UNIVERSITY; the Private Diagnostic Clinic; George H.

Mickey, Ph.D., Defendants-Appellees.

John Albert GALLAGHER; Kimberly Miriam Gallagher, Plaintiffs-Appellees, and Lisa Marie Gallagher, by next friend Michelle Robertson, Plaintiff, v. George H. MICKEY, Ph.D., Defendant-Appellant, and Duke University; the Private Diagnostic Clinic, Defendants.

Nos. 87-1056, 87-1061 and 87-1062.

United States Court of Appeals, Fourth Circuit.

Argued March 8, 1988.

Decided July 28, 1988.

Opinion on Denial of Rehearing and Rehearing In Banc Aug. 29, 1988.

Joel M. Craig (E.C. Bryson, Jr., Newsom, Graham, Hedrick, Bryson & Kennon, on brief), Timothy C. Barber (O. William Faison, Faison, Brown, Fletcher & Brough on brief) for Duke University et al.

Donald Beskind (Beskind and Rudolf, P.A., Neil R. Rosen, Evans, Rosen, Portnoy, Quinn & Donohue, on brief), for Gallagher et al.

Before ERVIN and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

BUTZNER, Senior Circuit Judge:

Duke University and Dr. George H. Mickey appeal the district court's judgment entered on the verdict of a jury awarding damages to John and Kimberly Gallagher for failure to detect a genetic abnormality resulting in the birth of a daughter who suffers severe physical and mental defects. The Gallaghers cross appeal, assigning error to the district court's refusal to measure damages by the life expectancy of their daughter, Lisa. They also appeal the district court's denial of their claim for emotional distress. ¹

Jurisdiction is founded on diversity of citizenship, and the case is governed by North Carolina law. We affirm the judgment in favor of the Gallaghers. We conclude that the district court properly declined to measure damages by Lisa's life expectancy. Relying primarily on North Carolina cases decided after the district court entered judgment, we vacate the court's dismissal of the Gallaghers' claim for emotional distress and remand the case for further proceedings on this issue.

I

Mrs. Gallagher gave birth to a daughter, Jennifer, who suffered severe, multiple birth defects. She was transferred from a hospital in Jacksonville, North Carolina, to Duke for treatment, and died less than three weeks later. Dr. Mickey, a cytogeneticist at Duke, performed a chromosome analysis on a sample of Jennifer's blood and concluded that she had no genetic abnormalities.

The Gallaghers met with Duke staff members after Jennifer's death and were informed that based on Dr. Mickey's tests their chances of having a normal child were the same as the general population. The staff also informed the Gallaghers that there was no reason for either of them to be tested for any abnormal genetic traits because of the negative results of Jennifer's tests. Relying on this advice, the Gallaghers conceived a second child. They were referred to the University of North Carolina Genetic Counseling Department, where the staff concluded after examining Dr. Mickey's test results that an amniocentesis was unnecessary.

Lisa Gallagher was born on March 21, 1983, suffering severe birth defects similar to those that afflicted Jennifer. Lisa was transferred to Duke, where Dr. Mickey conducted a chromosome analysis on a sample of her blood. This time, Dr. Mickey discovered a genetic abnormality. He then re-examined the slides he had taken of Jennifer Gallagher and discovered that she possessed the same or a similar abnormality. Tests later conducted at the University of North Carolina revealed that Mr. Gallagher carried a genetic abnormality which he passed on to both Jennifer and Lisa and would likely pass on to some or all of his future children.

The Gallaghers sued Duke and Dr. Mickey, claiming that they would not have conceived and given birth to Lisa if they knew about Mr. Gallagher's genetic defect. The Gallaghers' complaint sought damages for the extraordinary expenses of caring for Lisa for the rest of her life, the loss of Lisa's future earnings, and for their own emotional distress. The court ruled that even if Duke and Dr. Mickey were liable, the Gallaghers could only recover damages for the extraordinary medical expenses that they would incur for Lisa's care during their lifetimes, despite the fact that Lisa was expected to outlive them and would continue to require medical attention and care. The jury returned a verdict in favor of the Gallaghers and awarded them $1,031,000 in damages, and the court entered judgment on the verdict. The court held that North Carolina law did not permit under the circumstances recovery for emotional distress, and the Gallaghers assign cross error to this ruling. The court dismissed a claim filed on behalf of Lisa for her "wrongful life" holding that it was not cognizable under North Carolina law. The Gallaghers do not appeal this dismissal. The jury exonerated another defendant, the Private Diagnostic Clinic, and the Gallaghers do not appeal the judgment in its favor.

II

Dr. Mickey and Duke state that the sole issue for which they seek review is: "Did the district court err in concluding that a claim for relief for the wrongful birth of a genetically defective child is cognizable under North Carolina law?" They rely primarily on Jackson v. Bumgardner, 318 N.C. 172, 347 S.E.2d 743 (1986), and Azzolino v. Dingfelder, 315 N.C. 103, 337 S.E.2d 528 (1985).

In Jackson, the Supreme Court of North Carolina held that a complaint alleging that a physician's failure to replace an intrauterine device resulting in the plaintiff's pregnancy and the consequent birth of a healthy child states a claim for medical malpractice based on wrongful conception. The Court explained its reasons as follows:

Whatever a woman's reason for desiring to avoid pregnancy, when a physician undertakes to provide medical care or advice to her for that purpose, he or she must provide the professional services in that case, just as in the rendering of professional services in any instance, according to the established professional standards. Just as in any other case, a failure to measure up to the established standards results in negligence which becomes actionable if the negligence proximately causes legal injury.

318 N.C. at 177, 347 S.E.2d at 746-47. The court noted that it followed the majority rule, saying:

Our survey shows that the vast majority of courts which have considered wrongful conception cases have viewed the case as being indistinguishable from an ordinary medical malpractice action where the plaintiff alleges a breach of duty on the part of a physician and resulting injury for failure to perform that duty.

318 N.C. at 179, 347 S.E.2d at 747. ²

Tested by Jackson, the Gallaghers have proved a cause of action for medical malpractice based on wrongful conception that is recognized in North Carolina. They consulted Dr. Mickey to determine whether they should attempt to have a second child after their first child was born with severe defects. The doctor had a duty to exercise reasonable care in responding to their requests. See Jackson, 318 N.C. at 178, 347 S.E.2d at 747. The evidence disclosed that Dr. Mickey and Duke deviated from an acceptable standard of care in analyzing the cause of the defects to the Gallaghers' first child. Relying on this faulty analysis, the defendants misinformed the Gallaghers that they could have a normal child. Consequently, the defendants' negligence was the proximate cause of the birth of a profoundly defective child, Lisa. Jackson establishes that the Gallaghers' evidence is sufficient to show "the existence of a duty, breach of that duty, and damages resulting from the breach." 318 N.C. at 178, 347 S.E.2d at 747. Because the North Carolina Supreme Court recognizes a cause of action for medical malpractice based on wrongful conception when a normal child is born, we are confident that the Court would recognize a cause of action based on the same malpractice when a genetically defective child is born.

III

The next question is the proper measure of damages. The North Carolina Supreme Court cited with approval the reasoning of Miller v. Johnson, 231 Va. 177, 343 S.E.2d 301 (1986), a wrongful conception case, which held that the parents could recover medical expenses and damages for pain and emotional distress suffered by the mother. 318 N.C. at 183, 347 S.E.2d at 750.

The North Carolina Court, however, held (with one justice dissenting) that the Jacksons could not recover the cost of rearing their healthy baby. It referred to its decision in Azzolino in which it said that "life, even life with severe defects, cannot be an injury in the legal sense." 315 N.C. at 109 and 111, 337 S.E.2d at 532 and 534. The Court concluded that recovery of the costs of rearing a healthy child would be contrary to the holding and rationale of Azzolino. The Court also reasoned that recovery of the costs of rearing a normal child should not be allowed because of the difficulty of determining the value of the offsetting benefits from the child's life. The result, the Court concluded, would necessarily be based on speculation and conjecture. 318 N.C. at 183, 347 S.E.2d at 750. In North Carolina speculative damages cannot be recovered. DiDonato v. Wortman, 320 N.C. 423, 430, 358 S.E.2d 489, 493 (1987) (citing Jackson ).

The Gallaghers' claim, unlike the Jacksons', does not present the difficulty of offsetting the costs of care with the benefits of parenthood. No evidence of benefits was introduced. Lisa is profoundly impaired. Her learning and cognitive skills will never develop past those of a one and one-half year old...