Greco v. U.S.

• Decision Date: 30 March 1995
• Docket Number: No. 24587,24587
• Citation: 893 P.2d 345,111 Nev. 405
• Parties: , 63 USLW 2634 Sundi A. GRECO, Individually, and as Mother and Next Friend of Joshua Greco, Appellant, v. UNITED STATES of America, Respondent.
• Court: Nevada Supreme Court

Page 345

893 P.2d 345

111 Nev. 405, 63 USLW 2634

Sundi A. GRECO, Individually, and as Mother and Next Friend of Joshua Greco, Appellant, v. UNITED STATES of America, Respondent.

No. 24587.

Supreme Court of Nevada.

March 30, 1995.

Jack H. Olender and Harlow R. Case, Washington, DC, Hamilton & Lynch, Reno, for appellant.

Gary P. Jordan, U.S. Atty., Jeanette Plante, Asst. U.S. Atty., Donna C. Sanger, Asst. U.S. Atty., D.Md., Baltimore, MD, for respondent.

Bradley & Drendel and Thomas E. Drendel, Reno, for amicus curiae Nevada Trial Lawyers Ass'n.

OPINION

SPRINGER, Justice.

In this case we certify to the United States District Court for the District of Maryland that a mother has a tort claim in negligent malpractice against professionals who negligently fail to make a timely diagnosis of gross and disabling fetal defects, thereby denying the mother her right to terminate the pregnancy. We further certify that the child born to this mother has no personal cause of action for what is sometimes called "wrongful life."

As Justice Felix Frankfurter observed, "[P]erhaps no field of the law comes closer to the lives of so many families in this country than does the law of negligence...." Tiller v. Atlantic Coast Line R., Co., 318 U.S. 54, 73, 63 S.Ct. 444, 466, 87 L.Ed. 610 (1943). Today it is the Greco family whom the law of negligence touches. The first question before this court is whether Nevada's common law of negligence offers relief to the mother of a child born with severe deformities whose physicians' negligence caused the mother to remain ignorant of the fact that she was carrying a severely deformed fetus. We answer this question in the affirmative. The second question before the court is whether Sundi Greco's disabled child has any enforceable legal claims arising out of the child's being born with congenital defects. We answer this question in the negative.

In July 1989, appellant ¹, Sundi A. Greco, mother of co-appellant Joshua Greco, ("Joshua") filed suit individually, and on Joshua's behalf, against respondent, the United States of America. Sundi Greco and Joshua alleged that Sundi Greco's doctors at the Nellis Air Force Base in Nevada committed several acts of negligence in connection with Sundi Greco's prenatal care and delivery and that, as a result, both Sundi and Joshua are entitled to recover money damages. ² The United States moved to dismiss the suit on the ground that the complaint failed to state a cause of action.

On July 20, 1993, the United States District Court for the District of Maryland filed a certification order with this court pursuant to NRAP 5, ³ requesting that this court answer certain questions relating to the negligently caused unwanted birth of a child suffering from birth defects.

The Grecos, mother and child, in this case seek to recover damages from the United States arising out of the negligence of physicians who, they claim, negligently failed to make a timely diagnosis of physical defects and anomalies afflicting the child when it was still in the mother's womb. Sundi Greco asserts that the physicians' negligence denied her the opportunity to terminate her pregnancy and thereby caused damages attendant to the avoidable birth of an unwanted and severely deformed child. On Joshua's behalf, Sundi Greco avers that the physicians' negligence and the resultant denial of Joshua's mother's right to terminate her pregnancy caused Joshua to be born into a grossly abnormal life of pain and deprivation.

These kinds of tort claims have been termed "wrongful birth" when brought by a parent and "wrongful life" when brought on behalf of the child for the harm suffered by being born deformed.

THE CHILD'S CAUSE OF ACTION: "WRONGFUL LIFE"

We decline to recognize any action by a child for defects claimed to have been caused to the child by negligent diagnosis or treatment of the child's mother. The Grecos' argument is conditional and narrowly put, so: if this court does not allow Sundi Greco to recover damages for Joshua's care past the age of majority, it should allow Joshua to recover those damages by recognizing claims for "wrongful life." Implicit in this argument is the assumption that the child would be better off had he never been born. These kinds of judgments are very difficult, if not impossible, to make. Indeed, most courts considering the question have denied this cause of action for precisely this reason. ⁴ Recognizing this kind of claim on behalf of the child would require us to weigh the harms suffered by virtue of the child's having been born with severe handicaps against "the utter void of nonexistence"; this is a calculation the courts are incapable of performing. Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689, 692 (1967). The New York Court of Appeals framed the problem this way Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians. Surely the law can assert no competence to resolve the issue, particularly in view of the very nearly uniform high value which the law and mankind has placed on human life, rather than its absence.

Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 900, 386 N.E.2d 807, 812 (1978). We conclude that Nevada does not recognize a claim by a child for harms the child claims to have suffered by virtue of having been born.

THE MOTHER'S CAUSE OF ACTION

With regard to Sundi Greco's claim against her physician for negligent diagnosis or treatment during pregnancy, we see no reason for compounding or complicating our medical malpractice jurisprudence by according this particular form of professional negligence action some special status apart from presently recognized medical malpractice or by giving it the new name of "wrongful birth." ⁵ Sundi Greco either does or does not state a claim for medical malpractice; and we conclude that she does.

Medical malpractice, like other forms of negligence, involves a breach of duty which causes injury. To be tortiously liable a physician must have departed from the accepted standard of medical care in a manner that results in injury to a patient. Fernandez v. Admirand, 108 Nev. 963, 843 P.2d 354 (1992); see also NRS 41A.009 (defining medical malpractice as "the failure of a physician, hospital or employee of a hospital, in rendering services, to use the reasonable care, skill or knowledge ordinarily used under similar circumstances"). In the case before us, we must accept as fact that Sundi Greco's physicians negligently failed to perform prenatal medical tests or performed or interpreted those tests in a negligent fashion and that they thereby negligently failed to discover and reveal that Sundi Greco was carrying a severely deformed fetus. As a result of such negligence Sundi Greco claims that she was denied the opportunity to terminate her pregnancy and that this denial resulted in her giving birth to a severely deformed child.

It is difficult to formulate any sound reason for denying recovery to Sundi Greco in the case at hand. Sundi Greco is saying, in effect, to her doctors:

"If you had done what you were supposed to do, I would have known early in my pregnancy that I was carrying a severely deformed baby. I would have then terminated the pregnancy and would not have had to go through the mental and physical agony of delivering this child, nor would I have had to bear the emotional suffering attendant to the birth and nurture of the child, nor the extraordinary expense necessary to care for a child suffering from such extreme deformity and disability."

The United States advances two reasons for denying Sundi Greco's claim: first, it argues that she has suffered no injury and that, therefore, the damage element of negligent tort liability is not fulfilled; second, the United States argues that even if Sundi Greco has sustained injury and damages, the damages were not caused by her physicians. To support its first argument, the United States points out that in Szekeres v. Robinson, 102 Nev. 93, 715 P.2d 1076 (1986), this court held that the mother of a normal, healthy child could not recover in tort from a physician who negligently performed her sterilization operation because the birth of a normal, healthy child is not a legally cognizable injury. ⁶ The United States argues that no distinction can be made between a mother who gives birth to a healthy child and a mother who gives birth to a child with severe deformities and that, therefore, Szekeres bars recovery.

Szekeres can be distinguished from the instant case. Unlike the birth of a normal child, the birth of a severely deformed baby of the kind described here is necessarily an unpleasant and aversive event and the cause of inordinate financial burden that would not attend the birth of a normal child. The child in this case will unavoidably and necessarily require the expenditure of extraordinary medical, therapeutic and custodial care expenses by the family, not to mention the additional reserves of physical, mental and emotional strength that will be required of all concerned. Those who do not wish to undertake the many burdens associated with the birth and continued care of such a child have the legal right, under Roe v. Wade and codified by the voters of this state, to terminate their pregnancies. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); NRS 442.250 (codifying by referendum the conditions under which abortion is permitted in this state). Sundi Greco has certainly suffered money damages as a result of her physician's malpractice.

We also reject the United State's second argument that Sundi Greco's physicians did not cause any of the injuries that Sundi Greco might have suffered. We note that the mother is not claiming that her child's defects were caused by her physicians' negligence; rather, she claims that her physicians' negligence kept her ignorant of those defects and that...