Haymon v. Wilkerson

• Decision Date: 31 December 1987
• Docket Number: No. 86-1594.,86-1594.
• Citation: 535 A.2d 880
• Parties: Carolyn B. HAYMON, et al., Appellants, v. Marciana W. WILKERSON. M.D., Appellee.
• Court: D.C. Court of Appeals

535 A.2d 880

Carolyn B. HAYMON, et al., Appellants, v. Marciana W. WILKERSON. M.D., Appellee.

No. 86-1594.

District of Columbia Court of Appeals.

Argued November 4, 1987.

Decided December 31, 1987.

Aaron M. Levine, Washington, D.C., with whom Brenda C. Wagner, Winston-Salem, N.C., was on the brief, for appellant.

Michael F. Flynn, Jr., with whom Katherine S. Duyer, Rockville, Md., was on the brief, for appellee.

Before NEWMAN, ROGERS and STEADMAN, Associate Judges.

ROGERS, Associate Judge:

This appeal presents the issue whether, in the District of Columbia, a parent may sue to recover extraordinary medical and other health care expenses resulting from the "wrongful birth" of a child with birth defects. The trial court granted a motion to dismiss for failure to state a claim upon which relief may be granted, SUPER.CT. CIV.R. 12(b)(6), dismissing a wrongful birth claim brought by the mother of a child born with Down's Syndrome. The child's mother alleges that her obstetrician's failure to counsel her properly regarding the advisability of performing an amniocentesis was negligent and deprived her and her husband of the choice of terminating her pregnancy. Consequently, the mother seeks to recover damages attributable to the extraordinary medical, nursing and other health care expenses she alleges would not have been incurred but for the negligence of the defendant. We hold that a parent may bring a cause of action for wrongful birth to recover damages for the extraordinary medical and other health care expenses attributable to her child's affliction. Accordingly, we reverse and remand.

I

Throughout her pregnancy, the plaintiff Ms. Haymon was under the care of defendant Dr. Wilkerson, an obstetrician. Ms. Haymon, who was thirty-four years old, was troubled about the possible implications of pregnancy at this age, and she and her husband asked the doctor about genetic testing. Specifically, they inquired about the advisability of an amniocentesis, a relatively safe in utero technique which detects the existence of genetic defects in the fetus. The doctor assured them, even after they had voiced their concerns on several occasions, that an amniocentisis was unnecessary. Ms. Haymon alleges that she has no moral or religious objections to terminating a pregnancy for therapeutic reasons and would have done so had she known she was carrying a fetus with Down's Syndrome. Ignorant of what an amniocentisis would have disclosed, Ms. Haymon allowed her pregnancy to continue, and on February 9, 1986, she gave birth to a daughter who was afflicted with Down's Syndrome, a genetic disorder characterized by mental retardation and physical abnormalities.

On June 13, 1986, Ms. Haymon, individually and as the mother and next friend of her daughter, filed suit against her obstetrician, alleging personal injury and medical malpractice. The complaint alleges that the doctor accepted Ms. Haymon as her patient and rendered obstetrical care throughout the full term of her pregnancy, that the medical care provided by the doctor was negligent and constituted a departure from established standards of medical and obstetrical care in several respects, including the failures to test, obtain an adequate history, utilize adequate clinical and laboratory diagnostic techniques and studies, monitor the pregnancy, and perform and recommend an amniocentesis. The complaint also alleges that as a result of the doctor's negligence the Haymon's daughter suffered severe and permanent injuries, has and will in the future suffer pain of mind and body, and will be prevented from pursuing her employment and other ordinary activities. The complaint further alleges that Ms. Haymon has and in the future will incur medical, hospital, and nursing expenses for the child's care.

Dr. Wilkerson filed a motion to dismiss the complaint for failure to state a claim pursuant to SUPER.CT.CIV.R. 12(b)(6). The doctor argued that the complaint, consisting of the actions generally known as "wrongful birth" and "wrongful life," did not state causes of action recognized in the District of Columbia. The trial judge granted the motion. On appeal, Ms. Haymon does not contest the dismissal of her daughter's wrongful life action, nor pursue recovery for the ordinary child-rearing expenses associated with the care of a healthy child. Thus, the only issue before this court is that which was expressly reserved for future resolution in Flowers v. District of Columbia, 478 A.2d 1073, 1076 n. 3 (D.C. 1984), namely, whether a parent's claim for extraordinary medical and other expenses resulting from the wrongful birth of a child with birth defects presents a claim upon which relief may be granted.

II

On appeal from a Rule 12(b)(6) dismissal for failure to state a claim, this court must construe the complaint in the light most favorable to the plaintiff. Vicki Bagley Realty, Inc. v. Laufer, 482 A.2d 359, 364 (D.C. 1984); see SUPER.CT.CIV.R. 8(f) ("[a]ll pleadings shall be so construed as to do substantial justice"). Consequently, we accept as true each of the plaintiff's allegations and all reasonable inferences flowing from them. Vicky Bagley Realty, Inc., supra, 482 A.2d at 364. We therefore assume that at the time of pregnancy (1) Dr. Wilkerson failed to counsel Ms. Haymon properly regarding the advisability of performing an amniocentesis; (2) this failure to recommend an amniocentesis constituted a departure from acceptable medical practice; (3) had the doctor recommended an amniocentesis, Ms. Haymon would have submitted to the procedure; (4) the results of an amniocentesis would have indicated that the child, if born, would be afflicted with Down's Syndrome; and (5) upon being notified of this fact, Ms. Haymon would have terminated the pregnancy. See Berman v. Allan, 80 N.J. 421, 426, 404 A.2d 8, 11 (1979); Becker v. Schwartz, 46 N.Y.2d 401, 408, 386 N.E.2d 807, 810, 413 N.Y.S.2d 895, 898 (1978). Thus, under standard principles of tort law, Ms. Haymon has met her burden to establish the elements of a negligence action against a physician, which are a duty of care owed by the defendant to the plaintiff, a breach of that duty by the defendant, and damage to the plaintiff's interests proximately caused by the breach. Psychiatric Institute of Washington r. Allen, 509 A.2d 619, 623-24 (D.C. 1986); Meek v. Shepard, 484 A.2d 579, 581 (D.C. 1984); District of Columbia v. Cooper, 483 A.2d 317, 321 (D.C. 1984); Morrison v. MacNamara, 407 A.2d 555, 560 (D.C. 1979). Dr. Wilkerson does not argue that she did not owe a duty to Ms. Haymon. See Gordon v. Neviaser, 478 A.2d 292, 294 (D.C. 1984); Crain v. Allison, 443 A.2d 558, 562 (D.C. 1982).

The Supreme Court has established the constitutional right of parents to decide whether to prevent the conception or birth of a child as set forth in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). See also Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). Consequently, it is undisputed that Ms. Haymon had the right to seek medical advice regarding a diagnostic procedure designed to impart information which may have led to a decision to terminate pregnancy. In view of the existence of the parental right of choice, and a correlative duty of the health care provider not to deprive the parents of an opportunity to make an informed decision, Blake v. Cruz, 108 Idaho 253, 257, 698 P.2d 315, 319 (1984), our only concern is whether a parent may recover damages proximately caused by the breach of the duty that bears on that right. See Smith v. Cote, 128 N.H. 231, ____, 513 A.2d 341, 344 (1986).

III

There are substantive differences between the instant wrongful birth action for extraordinary medical and other health care expenses which will be incurred as a result of the child's mental and physical abnormalities, and other closely related, but distinguishable, causes of action known as "wrongful life" and "wrongful pregnancy." In a wrongful life action, an abnormal, unhealthy infant, or the parents on the infant's behalf, claim that but for the physician's negligent advice or treatment the child would not have been born to experience the pain and suffering associated with life in an impaired condition. Most courts have refused to recognize a wrongful life action because determining the measure of damages, in their view, necessitates performing "a calculation of damages dependent upon a comparison between the Hobson's choice of life in an impaired state and nonexistence." Becker v. Schwartz, supra, 46 N.Y.2d at 412, 386 N.E.2d at 812, 413 N.Y.S.2d at 900; see, e.g., Phillips v. United States, 508 F.Supp. 537 (D.S.C. 1980); Blake v. Cruz, supra, 108 Idaho 253, 698 P.2d 315; Bruggeman v. Schimke, 239 Kan. 245, 249-50, 718 P.2d 635, 639 (1986) (and cases cited therein); but see Turpin v. Sortini, 31 Cal.3d 220, 643 P.2d 954, 182 Cal.Rptr. 337 (1982); Continental Casualty Co. v. Empire Casualty Co., 713 P.2d 384 (Colo.App. 1985); Procanik v. Cillo, 97 N.J. 339, 478 A.2d 755 (1984); Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 656 P.2d 483 (1983) (en banc), aff'd, 746 F.2d 517 (9th Cir. 1984).

In a wrongful pregnancy action, the parents of a healthy child claim that negligence in the provision of contraceptives or the performance of a sterilization or termination of pregnancy operation has led to the birth of an unplanned child. In Flowers, supra, 478 A.2d 1073, this court refused to recognize a wrongful pregnancy action,¹ holding that shifting the financial burden of raising an unplanned but healthy child to a physician would be wholly disproportionate to the culpability involved. Id. at 1077. This decision was in accord with the majority of jurisdictions. Id. at 1075 n. 2; but see University of Arizona Health Sciences Center v. Superior Court, 136 Ariz. 579, 667 P.2d 1294 (1983) (en banc); Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463 (1967); Jones v. Malinowski, 299 Md. 257, 473 A.2d 429 (1984); Troppi v....