Johnston v. Elkins

• Decision Date: 01 May 1987
• Docket Number: No. 60079,60079
• Citation: 736 P.2d 935,241 Kan. 407
• Parties: Stanley C. JOHNSTON and Mary A. Johnston, Appellants, v. Robert L. ELKINS, M.D., and Community Group Health Plan, Appellees.
• Court: Kansas Supreme Court

Page 935

736 P.2d 935

241 Kan. 407

Stanley C. JOHNSTON and Mary A. Johnston, Appellants, v. Robert L. ELKINS, M.D., and Community Group Health Plan, Appellees.

No. 60079.

Supreme Court of Kansas.

May 1, 1987.

Syllabus by the Court

In an action against a physician for negligence in post-surgical testing and advice, following an unsuccessful vasectomy, it is held: the action is recognized in this state; following Byrd v. Wesley Med. Center, 237 Kan. 215, 699 P.2d 459 (1985), the birth of a normal, healthy child is not a legal wrong for which damages may be recovered; and ordinarily, damages recoverable in the action cease at the time of the birth of a normal, healthy child.

Loren W. Moll, of Brown, Koralchik & Fingersh, of Overland Park, argued the cause, and James F. Davis, of the same firm, was with him on the brief for appellants.

Bruce Keplinger, of Payne & Jones, Chartered, of Overland Park, argued the cause and was on the brief for appellee Robert L. Elkins.

Richard T. Merker, of Wallace, Saunders, Austin, Brown, and Enochs, Chartered, argued the cause, and Laura K. Simpson, of the same firm, was with him on the brief for appellee Community Group Health Plan.

MILLER, Justice:

The plaintiffs, Stanley C. Johnston and his wife Mary A. Johnston, appeal from the entry of summary judgment against them and in favor of the defendants, Robert L. Elkins, M.D., and Community Group Health Plan. Essentially, this is a malpractice action arising out of an unsuccessful bilateral vasectomy performed by Dr. Elkins on Mr. Johnston. Dr. Elkins tested Mr. Johnston after the surgery and informed him he was sterile. Thereafter, Mrs. Johnston became pregnant. Plaintiffs seek to recover damages incident to the pregnancy and childbirth. The issues are whether plaintiffs have asserted a valid cause of action, and if so, the extent of damages recoverable.

When summary judgment is challenged on appeal, we must review the record in the light most favorable to the party who defended against the motion for summary judgment. Werner v. Kliewer, 238 Kan. 289, 292-93, 710 P.2d 1250 (1985); Credit Union of Amer. v. Myers, 234 Kan. 773, Syl. p 1, 676 P.2d 99 (1984). With that rule in mind, we state the facts most favorable to the plaintiffs.

Dr. Elkins, a physician and surgeon, performed a vasectomy on Mr. Johnston on July 19, 1984. One month later, he examined a semen sample of Mr. Johnston and informed him that he was sterile as a result of the surgery. Dr. Elkins is an agent and employee of Community Group Health Plan d/b/a Prime Health. Prime Health's guidelines call for two post-operative semen examinations before a determination of the successfulness of the surgery may be made. Elkins informed the plaintiffs that he required only one test. Relying on Dr. Elkins' advice, plaintiffs stopped using contraceptives. Mrs. Johnston became pregnant in late September 1984, and a follow-up examination of Mr. Johnston's semen in October indicated the presence of sperm. On May 31, 1985, Mrs. Johnston gave birth to a normal, healthy baby, the couple's fifth child. On July 15, 1985, Mr. and Mrs. Johnston commenced this action. They alleged various acts of negligence, all arising out of the acts, advice, and post-surgical testing by Dr. Elkins. They alleged that defendants' negligence caused them physical and emotional stress, health care expenses, and pain and suffering associated with pregnancy and childbirth. They sought damages of one million dollars.

Prime Health moved for summary judgment, contending that Dr. Elkins was an independent contractor, not Prime Health's agent or employee. Dr. Elkins also moved for summary judgment, claiming that due to the fact that the child was normal and healthy, the plaintiffs are without a legal cause of action in this state. The trial judge sustained both of the motions for summary judgment on the ground that wrongful pregnancy does not constitute a valid cause of action in Kansas. The judge recognized that Prime Health did not move for summary judgment on that particular ground, but characterized the ruling as to that defendant as a dismissal for failure to state a claim upon which relief can be granted. If the action fails against Dr. Elkins, then even if there is an agency relationship, it must fail against Prime Health.

The issue before us is whether we recognize this cause of action, however it be labeled, and if so, then the extent of the recoverable damages.

We have recently decided two cases which bear upon the issues raised here, and we shall discuss those opinions briefly. In Byrd v. Wesley Med. Center, 237 Kan. 215, 699 P.2d 459 (1985), the plaintiff mother became pregnant and gave birth to a normal, healthy child after an obviously unsuccessful tubal ligation had been performed upon her for the purpose of preventing her from having any more children. She sued the hospital where the unsuccessful sterilization procedure was performed, and she sought damages, including the cost of rearing her child to majority. The sole issue before us in Byrd was stated in the first paragraph of the opinion as follows:

"When a normal, healthy child is born to a mother upon whom an unsuccessful sterilization procedure has been performed, are the costs of rearing and educating the child items of damage which are recoverable in a medical negligence action? That is the primary question posed in this proceeding."

We were careful to point out in Byrd that we were not concerned with ordinary damages arising from a claim of medical malpractice in a performance of a sterilization operation--the expense of the unsuccessful operation, the pain and suffering of the patient, any medical complications caused by the unsuccessful surgery, or by the pregnancy, the cost of delivery, lost wages, or loss of consortium.

We carefully considered the views expressed in the opinions of courts of other jurisdictions dealing with the problem, and adopted the majority rule: In a medical malpractice action for negligent sterilization, the projected cost of rearing a normal, healthy child to majority may not be recovered.

In the course of the opinion we said:

"[W]e cannot recognize actions for wrongful birth or wrongful conception of a normal, healthy child. The birth of a normal, healthy child may be one of the consequences of a negligently performed sterilization, but we hold that it is not a legal wrong for which damages should or may be awarded." 237 Kan. at 225, 699 P.2d 459.

The second recent case is Bruggeman v. Schimke, 239 Kan. 245, 718 P.2d 635 (1986). Schimke was an action for wrongful life, instituted on behalf of a minor by his natural mother and next friend. His parents, having a daughter who was born with multiple congenital anomalies, sought genetic counseling from the defendants and were advised that their first child's condition was not due to any known chromosomal or measurable biochemical disorder. It was alleged that the defendants were negligent in so advising the parents. Relying upon that advice, the parents proceeded to have another child, the plaintiff, a severely impaired person from the time of birth. He sought damages for injury, pain, mental anguish, and past and future extraordinary expenses for medical, surgical, nursing, and hospital care. Upon examining the authorities from various states, we concluded and held that a cause of action for wrongful life is not recognized in this state.

The petition in the case now before us was obviously drafted with a view to our opinion in Byrd. Plaintiffs here are not seeking the full cost of rearing their child; they do not claim damage because of the birth of the child; rather, they are seeking other damages with which we were not concerned and which we did not address in Byrd. We will discuss the matter of damages later in this opinion.

This action could be characterized as one for "wrongful pregnancy." We define such an action in Syl. p 1 of Bruggeman, 239 Kan. 245, 718 P.2d 635, as follows:

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