Gami v. Mullikin Medical Center
| Decision Date | 08 September 1993 |
| Docket Number | Nos. B061197,B063306,s. B061197 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Nandini GAMI, a minor, et al., Plaintiffs and Appellants, v. MULLIKIN MEDICAL CENTER, et al., Defendants and Respondents. AND CONSOLIDATED APPEAL. |
Nathaniel J. Friedman, Los Angeles, for plaintiffs and appellants.
O'Flaherty & Belgum, Anaheim, Horvitz & Levy, David M. Axelrad and Lisa R. Jaskol, Encino, for defendants and respondents.
This is an appeal from the dismissal of three consolidated medical malpractice actions brought by parents, individually, and on behalf of their minor daughter, alleging damages for negligence and for wrongful life arising from the birth of a child with neural tube defects, commonly known as spina bifida. 1 Plaintiffs and appellants Raksha and Naran Gami (the Gamis) appeal the judgment (order of dismissal) sustaining defendants' and respondents', Mullikin Medical Center, Juan Jose Arce, M.D., and Sylvia Arellanes (defendants), demurrers without leave to amend. 2 Plaintiff and appellant Nandini Gami (Nandini), by her guardian ad litem Naran Gami, appeals the judgment on the pleadings entered in favor of defendants in an action for wrongful life.
As to the parents, the trial court sustained defendants' demurrers on grounds that the Gamis' actions were barred by the one-year statute of limitations period pursuant to Code of Civil Procedure section 340.5. 3 We need not resolve the issue of whether the Gamis properly pleaded a claim for negligent infliction of emotional distress, because we conclude that their actions were barred by the one-year statute of limitations period. Accordingly, the judgment is affirmed.
As to the child, the trial court granted defendants' motion for judgment on the pleadings, without leave to amend, on the ground that, as a matter of law, Nandini was unable to state a cause of action for wrongful life under Turpin v. Sortini (1982) 31 Cal.3d 220, 182 Cal.Rptr. 337, 643 P.2d 954, because Turpin involved a pre-conception tort and this case involved a post-conception tort. We conclude that under the facts of this case, the holding in Turpin is applicable to actions alleging injuries resulting from post-conception torts. Because Nandini may be able to state a cause of action against defendants for wrongful life, the judgment is reversed.
According to the allegations of the consolidated operative pleadings, Raksha was under the care of Dr. Juan Jose Arce at the Mullikin Medical Center during her pregnancy. On or about October 11, 1988, during her first trimester, she submitted a blood sample for Alpha Fetoprotein (AFP) testing. 4 The blood proved unsuitable for testing. However, neither the hospital, nor the doctor, nor his secretary Sylvia Arellanes, advised Raksha to provide a second sample. Defendants' negligent failure to communicate this information to Raksha deprived her of an opportunity to learn whether the fetus was afflicted with neural tube defect. If further testing would have revealed that the fetus had the neural tube defect, Raksha would have terminated the pregnancy. On February 28, 1989, Nandini was born with congenital hydrocephalus (water on the brain) and spina bifida.
On October 31, 1990, Nandini filed an action for medical negligence, and the Gamis filed actions for, inter alia, negligent infliction of emotional distress/negligence. On or about December 11, 1990, defendants filed an answer to Nandini's complaint. On December 14, 1990, defendants demurred to the Gamis' complaints on grounds, inter alia, that the actions were barred by the statute of limitations. On January 18, 1991, the demurrers were sustained with 30 days leave to amend.
On January 25, 1991, the Gamis filed first amended complaints. The only difference between the original complaints and the first amended complaints was the addition of a paragraph alleging delayed discovery. 5 5 On February 14, 1991, defendants again demurred on grounds, inter alia, that the actions were barred by the statute of limitations, and that there was a failure to sufficiently plead the factual basis and circumstances necessary to raise the issue of belated discovery. On March 6, 1991, the court again sustained the demurrers with 30 days' leave to amend.
On April 8, 1991, the Gamis filed second amended complaints. The only difference between the first and second amended complaints was the deletion of the belated discovery allegation. On April 30, 1991, defendants again demurred on limitations grounds. At a hearing on May 22, 1991, the court refused to accept the Gamis' tender of a third amended complaint, and again sustained the demurrers to the negligence cause of action without leave to amend. On May 29, 1991, the Gamis moved for reconsideration of the court's May 22, 1991 order, without addressing the statute of limitations issue. 6 They attached a copy of the third amended complaint to the motion. On June 14, 1992, the motion was denied. An order dismissing the Gamis' actions was filed on July 29, 1991, and entered on July 30, 1991. On August 23, 1991, the Gamis filed a notice of appeal.
After preliminary procedural matters, Nandini's trial was set for September 30, 1991, but trailed. On or about October 3, 1991, defendants served and filed a motion for judgment on the pleadings. For the purpose of the motion only, defendants assumed they were negligent in failing to communicate to Raksha the need for a second blood sample. However, defendants argued that Nandini was unable to state a claim entitling her to relief under Turpin v. Sortini, supra, 31 Cal.3d 220, 182 Cal.Rptr. 337, 643 P.2d 954, because (1) the remedy in Turpin applied only to actions involving pre-conception issues; (2) Turpin was not binding precedent because it was factually distinguishable from this case; and, (3) the Turpin decision was analytically unsound and should not be expanded.
Defendants contended that the holding in Turpin was inapplicable in the context of a post-conception injury because of Roe v. Wade (1973) 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147. They argued that in this case, Nandini claimed that defendants negligently failed to inform her already pregnant mother, Raksha, of the need for a second blood sample. As a result of this negligence, Raksha did not have the opportunity to learn that Nandini could have been afflicted with a neural tube defect and was, therefore, deprived of the opportunity to have an abortion. Therefore, defendants argued, any injury resulting from defendants' alleged negligence was suffered by Raksha, who was allegedly deprived of her constitutional right to choose an abortion. (See Roe v. Wade, supra.) It was the mother, not the child, who suffered this injury. Only the mother had standing to seek damages based on the deprivation of her right to an abortion. Since Nandini lacked standing to recover for an injury to her mother, she could not assert any cause of action based on that injury.
On October 8, 1991, defendants' motion was granted without leave to amend. Judgment was entered on October 28, 1991. On November 1, 1991, Nandini filed a notice of appeal.
A. The Gamis' Actions are Barred by the One-Year Statute of Limitations Under Sections 340.5. ***
B. A Child Claiming Injuries Resulting From Post-Conception Negligence is Able to State a Cause of Action for Wrongful Life, but Only Recover Special Damages.
The sole issue in Nandini's appeal is whether a genetically impaired child can maintain a tort action against medical care providers for negligence that occurred after her conception. 10 Defendants' argument that Turpin is inapplicable in our case because of Roe v. Wade, is attenuated and unsupportable.
We conclude, for reasons explained below, that Turpin is applicable to wrongful life claims for injuries resulting from post-conception negligence.
" (Barker v. Hull (1987) 191 Cal.App.3d 221, 224, 236 Cal.Rptr. 285.)
(Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852, 19 Cal.Rptr.2d 671.)
"Wrongful life" is a "cause[ ] of action brought by the infant alleging that, due to the negligence of the defendant, birth occurred; ..." (Curlender v. Bio-Science Laboratories (1980) 106 Cal.App.3d 811, 817, 165 Cal.Rptr. 477.) 11 The gravamen of the action is that a child afflicted with a genetic defect "alleges that but for the defendant's negligence he or she would not have been born and thus would not have had to suffer the defect." (Turpin v. Sortini: Recognizing the Unsupportable Cause of Action for Wrongful Life (1983) 71 Cal.L.Rev. 1278, 1283, hereinafter...
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