Jacobs v. Theimer, B--4583

CourtSupreme Court of Texas
Citation519 S.W.2d 846
Docket NumberNo. B--4583,B--4583
PartiesGeorge S. JACOBS et ux., Petitioners, v. Louis M. THEIMER, Respondent.
Decision Date19 February 1975

Strasburger, Price, Kelton, Martin & Unis, Royal H. Brin, Jr., Bean, Francis, Ford, Francis & Wills, Dallas, for petitioners.

Fillmore, Lambert, Farabee & Purtle, Glynn R. Purtle and Larry L. Lambert, Wichita Falls, for respondent.

REAVLEY, Justice.

Dortha Jean Jacobs contracted rubella in the first trimester of pregnancy and subsequently gave birth to a child whose major organs were defective. Mrs. Jacobs and her husband brought this suit against Dr. Louis M. Theimer, alleging his negligence in failing to diagnose the rubella and to advise them of the attendant risk, and seeking damages for the medical expenses for treatment and care of the child and for their own emotional suffering. The trial court entered summary judgment for the defendant doctor, and the Court of Civil Appeals affirmed. , 507 S.W.2d 288. We hold that a cause of action is pleaded and remand for trial.

From the pleadings and depositions we see these contentions of the plaintiffs: Mrs. Jacobs became ill (with what they now know was rubella) in early July of 1968 while on a brief vacation trip. When she returned home she consulted Dr. Theimer and was hospitalized. During that hospitalization Dr. Theimer informed her that she was pregnant. The discovery alarmed her and she asked him if her illness might have been measles, but he assured her that this was not so. Seven months later, in March of 1969, the child was born. On March 21, 1969, the parties first learned of the extensive toll of the rubella upon the child. Heart surgery was performed in June of 1969, and this was followed by many operations and treatments in Houston, Dallas, Baltimore, and Washington. By the time of the trial in 1973, the medical costs totaled $21,472. The plaintiffs say that they would have had the pregnancy terminated if they had been properly informed by the defendant doctor. Mrs. Jacobs says in her deposition that if it had not been for the assurance by Dr. Theimer: 'I would have gone to any length to have found out what the chances of my child were, and after having found this out, I would have done the kindest thing that I could have known to have done for her, and that would have been to terminate the pregnancy.'

The defendant made no attempt in his motion for summary judgment to negate the allegations of negligence and proximate cause. We must assume the truth of the plaintiffs' contentions at this point. Prestegord v. Glenn,441 S.W.2d 185 (Tex.1969). The sole basis for the summary judgment in the lower courts was the prohibition against abortion in this state's penal code in 1968. At that time eugenic abortions (to prevent the birth of a defective child) were prohibited in Texas; the only justification for abortion was the preservation of the mother's life. 1 This remained the Texas law until all of the penal code provisions relative to abortion were declared to be in violation of the United States Constitution in Roe v. Wade 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

The acts of negligence by defendant which are alleged by the plaintiffs in their pleading include his failure to diagnose and to inform plaintiffs as to the condition of Mrs. Jacobs due to her having contracted rubella. The complaint is Not that the defendant doctor failed to perform an abortion or to tell Mrs. Jacobs that she should obtain an abortion elsewhere. We may not penalize the defendant for complying with the penal code of this state as it stood in July of 1968; but the plaintiffs contend only that the defendant should have given them information as to Mrs. Jacobs' condition and then, with the information she had a right to expect from her doctor, the decision would have been made by the plaintiffs themselves to terminate the pregnancy.

The Court of Civil Appeals suggests that by affording the patient proper diagnosis along with additional information as to the risk of harmful effects upon the expected child, the defendant doctor would thereby have become guilty as an accomplice to any abortion subsequently obtained by the plaintiffs. In this the Court erred. There would have been no criminal liability unless the doctor advised the plaintiffs to commit an illegal act and unless the illegal act were committed. Fondren v. State, 74 Tex.Cr.R. 552, 169 S.W. 411 (Tex.Cr.App.1914); Cooper v. State, 69 Tex.Cr.R. 405, 154 S.W. 989 (Tex.Cr.App.1913); Tucker v. State, 461 S.W.2d 630 (Tex.Cr.App.1971). Plaintiffs do not contend that the defendant should have suggested an abortion or even spoken to them about taking that action, and there is no basis in the summary judgment proof to establish that an illegal abortion would have been obtained by Mrs. Jacobs.

Assuming that there would have been no violation of the criminal law as of 1968, and apart from that area of the law, Mrs. Jacobs says that a patient of Dr. Theimer had the right to information adequate for her to exercise an informed consent or refusal to his medical treatment during her pregnancy. Dr. Theimer was under a duty to make reasonable disclosure of that diagnosis, and risk of the proposed treatment in continuing the pregnancy, as would have been made by a reasonable medical practitioner under the circumstances. Wilson v. Scott, 412 S.W.2d 299 (Tex.1967); Anno: 'Malpractice: physician's duty to inform patient of nature and hazards of disease or treatment,' 79 A.L.R.2d 1028 (1961). For purposes of weighing the summary judgment, we assume that defendant has failed to meet the accepted medical standards in this respect.

We do not regard the issue before us as requiring our decision of the public policy either for or against abortion. This is a matter of very different but very deep feeling. So long as no violation of criminal statutes is proposed, the courts should regard the question as one to be resolved by the wife and her husband. At least, the courts should not penalize them for the choice which these plaintiffs say that they would have made.

The difficulty in the case is seen when we consider the damages for which recompense is sought by plaintiffs, which are the expenses, past and future, required to treat the birth defects of the child as well as their own emotional suffering. It seems to be unquestioned that there was no available treatment of Mrs. Jacobs during her pregnancy that would have avoided any defect with which the child was afflicted when born. The only alternative by which the plaintiffs' damages could have been avoided, if the plaintiffs had been fully informed about rubella and its consequences, was the termination of the pregnancy. Again, we assume that Mrs. Jacobs could and would have terminated the pregnancy by lawful means, since that showing would be essential for a causal connection between defendant's failure to inform and plaintiffs' damages. This brings us to the question: when may damages be recovered by reason of birth rather than non-birth, by reason of life rather than no life?

Suits seeking recovery of damages due solely, to the existence of life, rather than no life, have not met with favor in the courts. See, Rieck v. Medical Protective Co., 64 Wis.2d 514, 219 N.W.2d 242 (1974); Stewart v. Long Island College Hospital, 35 A.D.2d 531, 313 N.Y.S.2d 502 (1970), aff'd 30 N.Y.2d 695, 332 N.Y.S.2d 640, 283 N.E.2d 616 (1972); Williams v. State of New York, 18 N.Y.2d 481, 276 N.Y.S.2d 885, 223 N.E.2d 343 (1966); Aronoff v. Snider, 292 So.2d 418 (Fla.App.1974); Anno: 'Tort liability for wrongfully causing one to be born,' 22 A.L.R.3rd 1441 (1968). A cause of action has been allowed even when birth was given to a healthy child. Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971); Ziemba v. Sternberg, 45 A.D.2d 230, 357 N.Y.S.2d 265 (1974); Jackson v. Anderson, 230 So.2d 503 (Fla.App.1970); Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463, 27 A.L.R.3rd 884 (1967); Contra, Terrell v. Garcia, 496 S.W.2d 124 (Tex.Civ.App.1973, writ ref'd n.r.e.)

The case most nearly resembling the one before us is that of Gleitmann v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967), noted at: 46 Tex.L.Rev. 1004 (1968), 10 So.Tex.L.J. 174 (1968), 46 No.Car.L.Rev. 205 (1967). In the New Jersey case the defendant doctor was alleged to have assured the mother that German measles suffered by her during pregnancy would have no effect upon her child, but the child when born was seriously impaired. Mrs. Jacobs, our plaintiff, alleges that the defendant doctor assured her that she had not suffered German measles, whereas she had in fact contracted the disease which had its serious effect upon her child. The New Jersey Supreme Court majority (4--3) held that it could not measure life with defects against no life at all. Insofar as the child sues for damages for life itself or the parents sue for damages for all expenses incurred and to be incurred in raising the child and for their own mental or emotional anguish, the objection is more understandable. The objection is to an award based upon speculation as to the quality of life and as to the pluses and minuses of parental mind and emotion.

The economic burden related solely to the physical defects of the child is a different matter which is free from the above objection. These expenses lie within the methods of proof by which the courts are accustomed to determine awards in personal injury cases. No public policy obstacle should be interposed to that recovery. It is impossible for us to justify a policy which at once deprives the parents of information by which they could elect to terminate the pregnancy likely to produce a child with defective body, a policy which in effect requires that the deficient embryo be carried to full gestation until the deficient child is born, and which policy then denies recovery from the tortfeasor of costs of treating and caring for the...

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