Johnson v. University Hospitals of Cleveland

• Citation: 44 Ohio St.3d 49,540 N.E.2d 1370
• Decision Date: 05 July 1989
• Docket Number: No. 88-485,88-485
• Parties: JOHNSON, Appellant, v. UNIVERSITY HOSPITALS OF CLEVELAND, et al., Appellees.
• Court: United States State Supreme Court of Ohio

Page 49

44 Ohio St.3d 49

540 N.E.2d 1370

JOHNSON, Appellant, v. UNIVERSITY HOSPITALS OF CLEVELAND, et al., Appellees.

No. 88-485.

Supreme Court of Ohio.

Submitted March 28, 1989.

Decided July 5, 1989.

Syllabus by the Court

Law Offices of James E. Behrens, James E. Behrens and Joseph R. Gioffre, for appellant.

Arter & Hadden, Robert C. Tucker and Irene C. Keyse-Walker, Cleveland, for appellees.

Patrick J. Perotti, Cleveland, urging affirmance for amicus curiae Ohio Right to Life Society, Inc.

DOUGLAS, Justice.

1. In a "wrongful pregnancy" action, the mother need not mitigate damages by abortion or adoption since a tort victim has no duty to make unreasonable efforts to diminish or avoid prospective damages.

2. In a "wrongful pregnancy" action, Ohio recognizes the "limited damages" rule which limits the damages to the pregnancy itself and does not include child-rearing expenses. The extent of recoverable damages is limited by Ohio's public policy that the birth of a normal, healthy child cannot be an injury to her parents.

On July 27, 1983, appellant, Ruth Johnson, filed a claim against appellees, University Hospitals of Cleveland ("University Hospitals") and three doctors employed by University Hospitals. Appellant alleged that she had undergone a tubal ligation for sterilization purposes at University Hospitals which was negligently performed by the three appellee-doctors on March 4, 1982. As a result, Johnson was not sterilized, and she became pregnant in July 1982, delivering a baby girl on April 27, 1983.

In her complaint, Johnson requested damages for pain and suffering arising out of the pregnancy and birth, for damages for injury to her person caused by the increased care, responsibility and work involved in raising a child, and for child-rearing expenses.

In Paragraph 10 of the complaint, Johnson specifically alleged that " * * * as a result of defendants' negligence, the birth of said female child will require great additional cost and expense to properly care for and raise said child to the age of maturity, a sum which is estimated to be approximately Three Hundred Thousand Dollars ($300,000.00)."

Pursuant to Loc.R. 37 of the Court of Common Pleas of Cuyahoga County, General Division, the court submitted Johnson's medical claim to a medical arbitration panel. Based on a suggestion of University Hospitals, the court instructed the arbitrators that if they found any defendant liable, damages could include:

"1) Reasonable medical and hospital costs incurred by plaintiff and related to the prenatal care of plaintiff, the cost of the delivery and post-delivery medical and hospital care related to the birth of the child;

"2) Pain and suffering of plaintiff, if any, resulting from the pregnancy and delivery of the child;

"3) Reasonable medical and hospital expenses incurred by plaintiff and related to any subsequent sterilization procedure;

"4) Reasonably foreseeable expenses to be incurred by the parents in maintaining, supporting, and educating the child to the age of majority, offsetting such expense by the economic value to the parents and the family of the child's love, aid, comfort, and society which will benefit the parents for the duration of the parents' lives, including the pecuniary benefits that the parents might reasonably expect from the child after reaching majority."

The arbitration panel recommended a finding in favor of Johnson against University Hospitals and one of the physicians. However, the panel found that Johnson was not entitled to any child-rearing expenses since any monetary expense is " * * * substantially outweighed by the offsetting value of her [the child's] love, aid, comfort and society. * * * " The panel assessed all Johnson's remaining damages at $12,500. ¹ Johnson appealed the arbitration award on November 6, 1986 to obtain a trial de novo. She subsequently settled all her claims for damages with appellees except her claim for child-rearing costs.

Appellees moved the trial court to dismiss or, in the alternative, for summary judgment as to the claim alleged for costs to support the child until the age of majority. The trial court granted appellees' motion on the grounds that "under Ohio law there is no legally cognizable claim for wrongful birth or wrongful pregnancy and as a matter of law plaintiff [Johnson] may not recover the 'additional cost and expense to properly care for and raise' a healthy child to the age of majority."

Johnson appealed this decision to the court of appeals. On January 25, 1988, in a two-to-one decision, the court of appeals held that Ohio recognizes a claim for wrongful pregnancy, but limited the recoverable costs to "damages arising from the pregnancy itself * * *, i.e., delivery fees, prenatal care, loss of spousal consortium and services during pregnancy, pain and suffering during pregnancy and child birth, etc." The court upheld the trial court's denial of child-rearing expenses for a normal, healthy child for several reasons. The court stated that a child is a benefit per se. Thus, a parent can never be damaged by the birth of a normal, healthy child. Furthermore, the court of appeals found that recovery of the costs of raising a child would be a windfall to the parents, that the benefits of child rearing are too speculative and, therefore, are impossible to weigh against the cost of child rearing, and that allowing a recovery for child-rearing expenses might harm the child emotionally and psychologically if the child learned that he or she was unwanted before birth. Appellant appealed this decision.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

The issue raised in this case is whether the parent of a healthy, normal child, born subsequent to a negligently performed sterilization operation, may recover, as an element of damages, the expenses of raising the child.

Numerous cases in other jurisdictions have been reported concerning the type of action before us. These cases have been variously classified as "wrongful pregnancy," "wrongful birth," or "wrongful life." However, a consensus appears to be emerging that several distinct causes of action are described in these categories. Smith v. Gore (Tenn.1987), 728 S.W.2d 738, 741.

I

An action for "wrongful pregnancy" refers to a suit filed by a parent for proximate damages arising from the birth of a child subsequent to a doctor's failure to properly perform a sterilization procedure. See, e.g., Jones v. Malinowski (1984), 299 Md. 257, 473 A.2d 429. The case before us now is a "wrongful pregnancy" action.

"Wrongful birth," on the other hand, refers to a cause of action whereby parents, on their own behalf, seek to recover damages for the birth of an impaired child when the impairment was caused by the defendant's failure to diagnose or discover a genetic defect in the parents or the infant through prenatal testing or counseling in time for the parent to obtain a eugenic abortion or to prevent pregnancy altogether. See Smith v. Gore, supra, at 741.

A "wrongful life" action is brought by a child, on his own behalf, claiming damages due to the negligent failure of physicians to sterilize his parents. Bowman v. Davis (1976), 48 Ohio St.2d 41, 45, 2 O.O.3d 133, 135, 356 N.E.2d 496, 499, fn. 3.

This court in Bowman, a five-to-two per curiam decision, clearly decided that Ohio recognizes a "wrongful pregnancy" action. Such a cause is " * * * not barred by notions of public policy. The choice not to procreate, as part of one's right to privacy, has become (subject to certain limitations) a Constitutional guarantee." (Citations omitted.) Bowman at 46, 2 O.O.3d at 135, 356 N.E.2d at 499.

Bowman did not directly address the measure of damages in a "wrongful pregnancy" action. The court said at 44, 2 O.O.3d at 134, 356 N.E.2d at 498, fn. 1:

"A third issue, that appellees' damages should be limited to the expenses of the pregnancy after a negligently performed sterilization, was not raised at the appellate level. To the extent that this issue is not settled in our discussion of appellant's other propositions of law, we decline to decide it. * * * " (Citations omitted.) (Emphasis sic.)

Thus, whether child-rearing expenses are recoverable in a "wrongful pregnancy" action in Ohio is a question of first impression. Numerous jurisdictions have already addressed this issue and four theories of recovery of damages in a "wrongful pregnancy" action have developed. We will review these four theories.

II

A No Recovery

When cases of this kind were first brought in the United States, courts were hesitant to recognize any cause of action at all. An early case, Christensen v. Thornby (1934), 192 Minn. 123, 255 N.W. 620, involved a failed vasectomy. The Minnesota Supreme Court denied any recovery in that case. Subsequently, in Shaheen v. Knight (1957), 11 Pa.D. & C.2d 41, a Pennsylvania common pleas court held that to permit damages for the birth of a healthy child was foreign to the popular sentiment regarding children and the family. Both of these jurisdictions now recognize an action for "wrongful pregnancy." ²

Recently, at least one other court has taken the position that the birth of a normal child is " * * * an event which, of itself, is not a legally compensable injurious consequence even if the birth is partially attributable to the negligent conduct of someone purporting to be able to prevent the eventuality of childbirth." Szekeres v. Robinson (1986), 102 Nev. 93, 715 P.2d 1076, 1078. Although apparently refusing to recognize the tort of wrongful pregnancy, the court permitted the case to go to trial on the theory of breach of contract. Thus, Nevada is currently the only jurisdiction to adhere to this absolute position of no tort recovery in a "wrongful pregnancy" action, at least when a normal, healthy child is born.

B The Benefits Rule

Several jurisdictions recognize that an uninterrupted chain of causation exists...