Garrison v. Foy

• Decision Date: 11 December 1985
• Docket Number: No. 3-1284A343,3-1284A343
• Citation: 486 N.E.2d 5
• Parties: Norman GARRISON and Roseann Garrison, Husband and Wife and Natural Parents and Guardians of Romona Fay Garrison, Minor Child, Appellants (Plaintiffs Below), v. Hayward FOY, M.D., Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 5

486 N.E.2d 5

Norman GARRISON and Roseann Garrison, Husband and Wife and

Natural Parents and Guardians of Romona Fay

Garrison, Minor Child, Appellants (Plaintiffs Below), v. Hayward FOY, M.D., Appellee (Defendant Below).

No. 3-1284A343.

Court of Appeals of Indiana,

Third District.

Dec. 11, 1985.

Kevin L. Likes, John C. Grimm, Grimm & Grimm, P.C., Auburn, for appellants.

John F. Lyons, Ronald J. Ehinger, Barrett, Barrett & McNagny, Fort Wayne, for appellee.

HOFFMAN, Judge.

This case comes before the Court on a stipulation of facts and issues as agreed by the parties at a pre-appeal conference. The issues presented are issues of first impression in Indiana ¹ and, as restated, are:

(1) whether Indiana recognizes a cause of action sounding in negligence for wrongful pregnancy; and

(2) if such a cause of action exists, the extent of damages which may flow therefrom.

In this particular type of case, terminology is important to identify and limit the issues. This action is denominated by the plaintiffs, an action for wrongful pregnancy grounded in traditional negligence law. A wrongful pregnancy action refers to one brought by the parents of a child, which suit alleges the conception of the child was due to the negligent performance of a sterilization technique. Fulton-DeKalb Hosp. Authority v. Graves (1984), 252 Ga. 441, 314 S.E.2d 653. The damages sought in such an action are those owing the parents, not the unplanned child, due to the unsuccessful medical procedures and the resulting birth of a child. Sherlock v. Stillwater Clinic (1977), Minn., 260 N.W.2d 169, 174-175.

Such an action must be distinguished from wrongful birth and wrongful life actions. Wrongful birth denotes an action brought by parents on their own behalf seeking damages for the birth of a deformed child after a failed abortion procedure or after failure of the physician to timely and/or properly inform the parents of a risk of genetic defect in time for the parents to make an informed decision as to terminating the pregnancy. A wrongful life action is that brought on behalf of an infant who suffers from an abnormality. Damages are sought for the failure of the physician to warn of defects or for negligent prevention or termination of conception resulting in the birth and subsequent less valuable life of the deformed individual. Nanke v. Napier (1984), Iowa, 346 N.W.2d 520; Phillips v. United States (D.S.C.1981) 508 F.Supp. 544. See, "Wrongful Life, Wrongful Birth and Wrongful Pregnancy: Judicial Divergence in the Birth-Related Torts," 20 Forum 207 (Winter, 1985).

In the present case we are concerned only with the existence or nonexistence of a wrongful pregnancy cause of action. The issues only concern any damages recoverable by the parents of a deformed child conceived after a vasectomy has been performed on the child's father. There is no issue as to a recovery on behalf of the child. There is no issue as to negligence in diagnosing an illness or warning against a possible defect in the child.

The stipulated facts indicate the plaintiff Norman Garrison had a vasectomy performed by defendant Foy on February 11, 1981. Approximately two weeks later, Dr. Foy performed a test on Garrison's sperm sample and informed Garrison he was in fact sterile. On July 22, 1982, plaintiff Roseann Garrison gave birth to a female child who is abnormal in that she has a complete bilateral cleft of the lip, jaw and palate. Plaintiffs then brought suit on their own behalf alleging negligence by Dr. Foy in performance of the vasectomy, failure to perform adequate and available testing to verify sterility, and failure to adequately explain the risks and benefits of the surgery. They sought damages for medical expenses incurred for the birth and future medical expenses for care of the infant; costs of raising the child to majority; and damages for mental and physical suffering and mental and emotional anguish suffered as a result of the deformity of the child. The defendant filed an Ind.Rules of Procedure, Trial Rule 12(B)(6) motion to dismiss for failure to state a cause of action recognized in Indiana. The trial court granted the defendant's motion and dismissed the cause. This appeal followed. On appeal, the Court must determine whether, considering the evidence most favorable to the plaintiff, there is substantial evidence of probative value which would sustain the material elements of the plaintiff's complaint. Sanson v. Sanson (1984), Ind.App., 466 N.E.2d 770.

There would seem to be no reason not to follow the course of the other states which have addressed the issue and recognize that at least some damages would flow from the unwanted pregnancy caused by the negligent performance of a sterilization procedure and/or follow-up. Byrd v. Wesley Medical Center (1985), 237 Kan. 215, 699 P.2d 459, 461. Such a cause of action is indistinguishable from any other medical negligence action. Sherlock v. Stillwater Clinic, supra, Minn., 260 N.W.2d 169, 174, reh. denied. The plaintiff is alleging and will have to establish the existence of the three elements of the cause of action: 1) a duty on the part of the defendant; 2) a failure to perform that duty; and 3) damages or injuries proximately resulting to the plaintiff as a result of that failure. Long v. Johnson (1978), 177 Ind.App. 663, 381 N.E.2d 93, 100, reh. denied. Such an action merely requires the application of existing principles of medical negligence law, and failure to allow such a cause of action would immunize those in the medical field from liability for their performance in one particular area of medical practice. See, Robak v. United States (7th Cir.1981) 658 F.2d 471, 475 (applying Alabama law).

Having recognized the existence of this cause of action for wrongful pregnancy, the difficult issue, which has divided the jurisdictions, is the appropriate damages to be allowed the parents of the unplanned child. In the present case the Garrisons have sought medical expenses for the birth of the child and future medical expenses for the care of the child; costs of raising the child to majority; and damages for mental and physical suffering and mental and emotional anguish due to the child's defect.

From the case law established in this area of tort law, the courts have generally held that the parents may recover the expenses directly incident to the pregnancy such as expenses of the unsuccessful operation, the pain and suffering involved, any medical complications caused by the pregnancy, the costs of delivery, lost wages and loss of consortium. Cockrum v. Baumgartner (1983), 95 Ill.2d 193, 69 Ill.Dec. 168, 447 N.E.2d 385, 387, reh. denied. As to costs of rearing a healthy, normal child born to a "sterilized" parent, there are three views: (1) the no recovery rule: the parent may not recover the costs of rearing the child followed in Cockrum v. Baumgartner, supra; ² (2) the full recovery rule: the parent may recover all costs of rearing the child, which has little if any support; ³ and (3) the benefits rule: the parent may recover the cost of rearing the child offset by the benefits the parent will incur as a result of having the child, followed in University of Ariz. v. Superior Court (1983), 136 Ariz. 579, 667 P.2d 1294 and cases cited therein. Byrd v. Wesley Medical Center, supra, 237 Kan. 215, 699 P.2d 459, 462-463.

The reason for the adoption of one view or the other is based in each jurisdiction on policy considerations. The policy considerations most persuasive in Indiana lead to the denial of costs to rear the child.

Although the physician/defendant in the present case is not within the purview of the Medical Malpractice Act, the policy of this state as evidenced by the limitations imposed under the act, IND.CODE Sec. 16-9.5-1-1 et seq., is one of limitation of liability. Recovery of rearing costs would be inconsistent with that policy in that "[t]o permit the parents to keep their child and shift the entire costs of its upbringing to the negligent health care provider would result in a penalty wholly out of proportion to the culpability involved." Byrd v. Wesley Medical Center, supra, 699 P.2d at 461; Flowers v. District of Columbia (D.C.App.1984) 478 A.2d 1073, 1077-1078.

In addition, the adoption of the view held by many jurisdictions that the rearing costs offset by the benefit the child confers on the parents is the proper damage award is inconsistent with Indiana law as to damages in other actions. Under Indiana law, when parents bring a wrongful death action for the death of a child, the jury may not consider the deprivation of happiness, comfort and society of the child or the occurrence of physical or mental suffering or pain by reason of loss of the child. Boland v. Greer (1980), Ind.App., 409 N.E.2d 1116, trans. denied, 422 N.E.2d 1236 (1981); IND.CODE Sec. 34-1-1-8. Therefore consideration of these factors would not be permissible in a wrongful pregnancy action to offset the costs of rearing and the balancing would be rendered impossible.

Finally, in Indiana, the comparative fault statute requires the apportionment of fault between plaintiff and defendant. IND.CODE Sec. 34-4-33-1 et seq. In the situation where a child is not wanted and a sterilization is performed but pregnancy results and is properly diagnosed, the decision or...