Garrison v. Medical Center of Delaware Inc.

• Decision Date: 13 December 1988
• Citation: 581 A.2d 288
• Parties: Hope GARRISON, by her Next Friend, Charles Garrison; Efser Garrison and Charles S. Garrison, Plaintiffs Below, Appellants, v. The MEDICAL CENTER OF DELAWARE INC., a Corporation of the State of Delaware, Elizabeth Bove and Digamber Borgaonkar, PH.D., Defendants Below, Appellees. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 288

581 A.2d 288

Hope GARRISON, by her Next Friend, Charles Garrison; Efser Garrison and Charles S. Garrison, Plaintiffs Below, Appellants, v. The MEDICAL CENTER OF DELAWARE INC., a Corporation of the State of Delaware, Elizabeth Bove and Digamber Borgaonkar, PH.D., Defendants Below, Appellees.

Supreme Court of Delaware.

Submitted: Dec. 13, 1988.

Resubmitted on Supplemental Briefing: July 13, 1989.

Decided: Dec. 12, 1989.

Opinion Issued: Oct. 9, 1990.

Roger A. Akin (argued), Christopher J. Curtin, and Bruce C. Herron of Sawyer & Akin, P.A., Wilmington, for appellants.

John A. Parkins, Jr. (argued), David C. Johnson-Glebe, and Joseph R. Slights, III of Richards, Layton & Finger, Wilmington, for appellees.

Before CHRISTIE, C.J., HORSEY, MOORE, WALSH, and HOLLAND, JJ., constituting the Court en banc.

HORSEY, Justice:

In this medical malpractice action, we address related issues of first impression under Delaware law: (1) whether the parents of a child born with a genetic disorder have a cause of action against health care providers who fail to timely detect the presence of a genetic disorder, thus precluding the option of terminating the pregnancy [a so-called "wrongful birth" cause of action]; and (2) whether a child born with a genetic disorder has a cause of action against negligent health care providers for an impaired life resulting from the genetic defects [a so-called "wrongful life" cause of action]. ¹ On the first issue, we hold that a cause of action exists for the negligence of a health care provider which results in prejudicial delay in reporting the results of a chromosome study. If such negligence is proved, the parents may be deprived of making an informed choice whether to continue the pregnancy or to terminate the pregnancy in a time and manner permitted under law. While characterized in many jurisdictions as "wrongful birth," the actionable claim that we recognize is an act of negligence or medical malpractice based on negligent performance of a medical procedure and negligent delay in transmitting the results of diagnostic tests.

On the second issue, we hold that no cause of action lies on behalf of the child against health care providers based on a claim of "wrongful life."

I

In their complaint filed in Superior Court in December 1987, plaintiffs, Hope Garrison, an infant, and Charles and Efser Garrison, the infant's parents, assert claims for "wrongful birth" and for "wrongful life" resulting from the birth of Hope Garrison with Down's Syndrome on November 30, 1986. The defendants are: Medical Center of Delaware, Inc. ("Medical Center"); Elizabeth Bove, a technician at the Medical Center's cytogenetics laboratory; and Digamber Borgaonkar, Ph.D., director of the Medical Center's cytogenetics laboratory. Plaintiffs allege that defendants improperly performed a medical procedure known as amniocentesis and negligently delayed informing the plaintiff parents of the results of the chromosome study so that plaintiffs did not learn of the test results until the third trimester of the pregnancy.

Efser Garrison was thirty-nine years old when she was informed by her physician that she was pregnant. Following referral to a state health care counselor, in early July plaintiff was informed of the increased risk, due to her age, of the fetus' being afflicted with Down's Syndrome, a condition characterized by mental retardation, muscular hypotonicity and mongolism. She was also informed of the availability at the Medical Center of amniocentesis, a medical procedure permitting prenatal diagnosis of chromosomal abnormalities, including Down's Syndrome. Plaintiff then decided to undergo the medical procedure; and she and her husband further decided that she would terminate the pregnancy if the test results showed the fetus to be so afflicted.

Plaintiff timely ² submitted to an amniocentesis procedure at the Medical Center in mid-July 1986, during the seventeenth week of her pregnancy. After not being informed by Dr. Borgaonkar until early August 1986 of the inadequacy of the first sample for testing, plaintiff, during her twenty-first week of pregnancy, again submitted to the medical procedure by a Medical Center physician, not a party defendant. The named individual defendants then delayed the completing and reporting of the results of the second analysis to plaintiff's physician until September 9, 1986. Thus, the plaintiff parents did not learn of the presence of the Down's Syndrome chromosome in the fetus until the commencement of the third trimester of pregnancy.

Thereafter, when plaintiffs sought to terminate the pregnancy at the Medical Center, they were only then informed by the Center of its policy of not permitting the eugenic termination of pregnancy after the first two trimesters, or twenty-six weeks, of pregnancy. Plaintiffs assert that as a result of defendants' negligence, they were deprived of the opportunity of making an informed decision either to carry the child to term or to undergo a timely and legal abortion of the fetus.

Following defendants' filing of a motion to dismiss the complaint for failure to state a claim for relief under Delaware law, the parties stipulated, for the purposes of the motion, to plaintiffs' well-pleaded allegations. Superior Court then certified the following questions to this Court under Supreme Court Rule 41:

1. Do the parents of a child born with a genetic defect have a cause of action for "wrongful birth" against a health care provider whose negligence deprived them of the opportunity to decide whether to continue the pregnancy of the defective child to term?

2. Does a child born with genetic defects have a cause of action for "wrongful life" against a health care provider whose negligence deprived the child's parents of the opportunity to accept or reject the child's birth?

Following this Court's acceptance of the questions certified on June 9, 1988, and briefing and argument before a panel of this Court on November 1, 1988, the case was rescheduled for hearing before the Court en banc and was heard on December 13, 1988. By Order dated March 23, 1989, this Court directed supplemental briefing on further questions posed by the Court, which was completed on or about July 13, 1989. Satisfied that the parties had fully addressed the novel issues presented, this Court, by order dated December 12, 1989, answered the first question in the affirmative and the second question in the negative. ³ We now give the reasons for our decision.

II

Addressing the first question, we hold that there is an actionable claim under Delaware law, rooted in common law, for negligence in performing a medical testing procedure and for negligence in failing to timely report the results of testing. The cause of action need not be characterized as "wrongful birth" since it falls within the realm of traditional tort and medical malpractice law. To prevail in such an action, plaintiffs must establish a duty on the part of defendants to report test results in a timely fashion, a breach of that duty, and a resulting injury proximately caused by the breach. The resulting injury to the plaintiff parents lies in their being deprived of the opportunity to make an informed decision to terminate the pregnancy, requiring them to incur extraordinary expenses in the care and education of their child afflicted with a genetic abnormality.

A.

The potential liability of the health care providers under the cause of action we recognize on behalf of the plaintiff parents results from the application of ordinary tort principles and the finding of the elements of negligence. Defendants argue that such a cause of action was unknown at common law and must therefore be enacted by the General Assembly, which can better weigh the important policy implications involved. We reject this formalistic argument and hold that an action in tort for a negligently performed or delayed medical diagnostic procedure lies within the common law of negligence, and therefore is actionable. ⁴ See Phillips v. United States, D.S.C., 508 F.Supp. 544 (1981); Gildiner v. Thomas Jefferson University Hospital, E.D.Pa., 451 F.Supp. 692, 696 (1978).

Alternatively, defendants assert that our earlier decision in Coleman v. Garrison, Del.Supr., 349 A.2d 8 (1975), precludes the recognition of a cause of action in the instant case. However, the factual premise of Coleman is readily distinguished from the facts of this case, and, therefore, Coleman is not controlling. In Coleman, the plaintiffs brought a medical malpractice action based on the improper performance of a sterilization procedure, resulting in the birth of a healthy child. Although the Coleman Court characterized the Coleman plaintiffs' action as one of "wrongful life," the Coleman case involved a tort action more properly termed "wrongful pregnancy." See University of Arizona v. Superior Court, Ariz.Supr., 136 Ariz. 579, 667 P.2d 1294, 1296 n. 1 (1983). The Court in Coleman denied recovery because the damages in that case were speculative. The recovery sought was the full cost of raising an unwanted, but normal and healthy, child. ⁵ 349 A.2d at 12.

Unlike the Coleman case, the Garrisons' asserted damages are not speculative. Due to the defendants' asserted negligence, the parents were arguably denied the opportunity to make an informed choice to legally and timely terminate the pregnancy due to the fetus' potential for birth defects. As a result of being denied the option of abortion, the parents face ascertainable damages in the form of the additional financial burden of raising a child with Down's Syndrome, an amount far exceeding the cost of raising a normal child, the difference being the measure of the parents' recoverable damages.

In contrast, the only injury in Coleman was the birth of a well, albeit unwanted, child. The parties in Coleman did not dispute the defendant-surgeon's liability for provable pain and discomfort of pregnancy, medical...