Green v. Sudakin

• Decision Date: 23 February 1978
• Docket Number: Docket No. 77-1289
• Citation: 265 N.W.2d 411,81 Mich.App. 545
• Parties: Ruth GREEN and Herbert Green, Plaintiffs-Appellees, v. Dr. Leonard B. SUDAKIN and Dr. Joseph Stern, jointly and severally, Defendants-Appellants. 81 Mich.App. 545, 265 N.W.2d 411
• Court: Court of Appeal of Michigan — District of US

Page 411

265 N.W.2d 411

Ruth GREEN and Herbert Green, Plaintiffs-Appellees, v. Dr. Leonard B. SUDAKIN and Dr. Joseph Stern, jointly and severally, Defendants-Appellants.

Docket No. 77-1289.

81 Mich.App. 545, 265 N.W.2d 411

Court of Appeals of Michigan.

Feb. 23, 1978.

Released for Publication May 10, 1978.

[81 MICHAPP 546] Harvey, Kruse & Westen, P. C. by Jonathan Martin, Detroit, for defendants-appellants.

Jeffrey M. Mallon, Southfield, for plaintiffs-appellees.

Before BASHARA, P. J., and J. H. GILLIS and KAUFMAN, JJ.

PER CURIAM.

Plaintiffs commenced this action in Wayne County Circuit Court seeking damages from defendant-doctors ¹ for alleged medical malpractice and breach of contract.

The record reveals that plaintiff-wife ² consulted with defendants, and decided to have a tubal ligation performed immediately following the birth of her third child. The purpose of such a procedure is to prevent future pregnancies.

After delivering plaintiffs' third child, defendants failed to perform the agreed upon tubal ligation. The issue of whether or not plaintiffs were notified of this fact was contested at trial. Plaintiffs claimed that defendants failed to inform them of the fact that the operation was not performed. Hence, plaintiffs, apparently in reliance upon defendants' promise to perform the operation, took no birth control precautions subsequent to the delivery of their third child, which resulted in plaintiff-wife promptly becoming pregnant with her fourth child.

[81 MICHAPP 547] The jury determined that defendants had failed to notify plaintiffs of the fact that the tubal ligation had not been performed, and entered a verdict of $95,000 in favor of plaintiffs.

Defendants appeal citing several instances of error.

Defendants first contend that an award of damages for the unwanted birth of a normal, healthy child is contrary to the public policy of this state. Defendants claim that the birth of such a child confers an unquestionable benefit upon the parents, which outweighs, as a matter of law, any detrimental expenses related to the birth and rearing of the child.

Such an assumption has been expressly rejected by this Court in the case of Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971), lv. den., 385 Mich. 753 (1971). Therefore, we find no public policy considerations which warrant that defendants be exempted from the consequences of their negligent acts.

Defendants next contend that an award of damages to compensate plaintiffs for the expenses of rearing their fourth child would be speculative and ethically questionable. We disagree.

As Troppi, supra, points out, the cost of rearing a child is a computation which is routinely performed in numerous cases:

"As to the costs of rearing the child until his majority, this is a computation which is routinely performed in countless cases.

"It should be clear that ascertainment of gross damages is a routine task. Whatever uncertainty attends the final award arises from application of the benefits rule, which requires that the trier of fact compute the dollar value of the companionship and services of an unwanted child. Placing a dollar value on these segments[81 MICHAPP 548] may well be more difficult than assessing damages for, say, Mrs. Troppi's lost wages. But difficulty in determining the amount to be subtracted from the gross damages does not justify throwing up our hands and denying recovery altogether.

"Michigan law is clear that there need only be a basis for reasonable ascertainment of the amount of the damages. Where the fact of liability is proven, difficulty in determining damages will not bar recovery." Troppi, supra, at 261, 187 N.W.2d at 521.

Hence, we find that the damages in the instant matter are reasonably ascertainable. ³

Defendants' allegation that the damages are unethical under the circumstances of the instant matter fails in light of the Troppi case, supra.

Defendants finally contend that the trial court erred in instructing the jury that their verdict could include an award for mental pain and suffering.

We note that damages for mental anguish are generally not permitted in breach of...