Jones v. Malinowski, 29

Decision Date06 April 1984
Docket NumberNo. 29,29
PartiesThomas W. JONES v. Juanita MALINOWSKI et vir. Sept. Term 1983.
CourtMaryland Court of Appeals

Patricia M. Flannery and John F. King, Baltimore (Angus R. Everton and Anderson, Coe & King, Baltimore, on the brief), for appellant.

Gary I. Strausberg, Baltimore (M. Melinda Thompson and Melnicove, Kaufman, Weiner & Smouse, P.A., Baltimore, on the brief), for appellees.


MURPHY, Chief Judge.

We granted certiorari to consider a single issue of first impression in this State raised in the joint petition of the parties, namely: "Where a negligently performed sterilization resulted in the birth of a healthy child, did the trial court err in its charge that the jury could award damages for the expenses of raising the unplanned child during minority reduced by the value of the benefits conferred upon the parents by having the child?" 1


The record discloses that Leon and Juanita Malinowski were married in 1971 and had three children, born in 1973, 1975 and 1978. Mrs. Malinowski's first pregnancy resulted in a breech birth; the second child was born with a brain disease and the third child nearly died at birth and suffers from heart disease. The Malinowskis are of limited financial means. He is employed as a drafting technician. Mrs. Malinowski, prior to the birth of her first child, was employed as a cryptology assistant by the federal government. She worked only sporadically after the birth of her first child, but planned to work full time after her third child reached school age. Her potential earnings would have increased the Malinowskis' annual income by approximately sixty percent.

After the birth of their third child, the Malinowskis decided not to have any more children. Economic factors motivated their decision; they determined that they could not afford to support another child. In addition, Mrs. Malinowski wished to avoid the possible recurrence of her prior traumatic experiences with pregnancy and child birth. Consequently, she sought to be sterilized by Dr. Thomas W. Jones. The Malinowskis advised Dr. Jones of their reasons for wanting to prevent future pregnancies.

On June 2, 1978, Dr. Jones performed a sterilization operation upon Mrs. Malinowski, who was then twenty-five years old. The operation, known medically as a bipolar tubal laparoscopy, consisted of blocking both Fallopian tubes by cauterization. Dr. Jones misidentified the left tube and cauterized the wrong structure, leaving the left tube intact. As a result, the sterilization operation proved ineffective. Subsequently, Mrs. Malinowski again became pregnant and on August 16, 1979, gave birth to the couple's fourth child, Juanita. The child was born normal, is healthy and is loved by her parents. Juanita's birth, however, placed a greater financial burden on the Malinowskis in the rearing of another child, i.e., added expenses associated with the costs of housing, food, transportation, clothing, medical care and education.

The Malinowskis sued Dr. Jones in the Circuit Court for Baltimore County in tort for negligent sterilization. At the trial, Dr. Thomas Espenshade, an economist demographer appearing on behalf of the Malinowskis, testified that based on Mr. Malinowski's earning history, the family's standard of living, and other factors, it would cost the couple an estimated $53,702 in 1981 dollars to raise Juanita from birth to majority. The witness estimated that it would cost $85,053 to rear Juanita if Mrs. Malinowski were employed.

In instructing the jury on damages, the court (Sfekas, J.) said that "persons have the right to limit the size of their family for whatever reason, be it for health or socio-economic reasons, and limiting the size of the family may be done by various means which include sterilization." The court charged the jury that it could consider, as an element of damages for negligent sterilization, "the costs of raising the unplanned child from birth to the age of majority, which is eighteen." 2 It also instructed the jury to consider in mitigation of damages "the value conferred upon [the Malinowskis] in having a healthy child, such as the child's aid, comfort and society during the parents' life expectancy." The jury was further instructed that in computing damages, if any, it was not to consider that the Malinowskis "might have aborted the child or placed the child out for adoption [since] ... as a matter of personal conscience and choice parents may wish to keep an unplanned child."

After finding that Dr. Jones was negligent, the jury awarded $70,000 in damages to the Malinowskis. It cannot be ascertained from the jury's general lump sum damage award whether it included any money for rearing costs, or, if it did, the extent to which, if any, it took into account the benefits conferred upon the Malinowskis by having a healthy and normal child.


Before us Dr. Jones argues that the trial court erred in instructing the jury that it could consider rearing costs as an element of damages. He contends that the creation of a healthy normal child does not constitute a legally cognizable injury giving rise to damages for child rearing costs under the law of Maryland. This is so, Dr. Jones maintains, because the benefits of having a normal child outweigh the costs of rearing the child to majority, both as a matter of law and of the public policy of the State, as expressed in the Wrongful Death Act, Maryland Code (1980 Repl.Vol.), § 3-901--904 of the Courts and Judicial Proceedings Article. This statute, according to Dr. Jones, is premised on the notion that the deprivation of life due to another's negligence is a compensable wrong; that in light of this established policy, the creation of life cannot constitute a compensable wrong; and that, consequently, the Wrongful Death Act precludes the recognition of child rearing costs as damages, absent a legislative act authorizing their recovery. Dr. Jones further argues that rearing costs are too speculative and unascertainable in any event to constitute the basis of an award for damages. He claims that the overwhelming majority of courts which have considered whether rearing costs are recoverable in a negligent sterilization case support his position. He urges that damages must be limited to the costs of the second sterilization procedure, which Mrs. Malinowski subsequently underwent, together with pain and suffering associated with that operation.


That there is a cause of action in tort based upon traditional medical malpractice principles for negligence in the performance of a sterilization procedure is well accepted. See Annot., Tort Liability For Wrongfully Causing One To Be Born, 83 A.L.R.3d 15 (1978). Maryland law is in accord. See Sard v. Hardy, 281 Md. 432, 379 A.2d 1014 (1977). The cases are divided, however, as to whether the cause of action encompasses damages for the costs of rearing the unplanned but healthy child to majority. Most jurisdictions deny recovery for these costs. See Boone v. Mullendore, 416 So.2d 718 (Ala.1982); Wilbur v. Kerr, 275 Ark. 239, 628 S.W.2d 568 (1982); Coleman v. Garrison, 327 A.2d 757 (Del.Super.Ct.1974), aff'd 349 A.2d 8 (Del. 1975); Fassoulas v. Ramey, --- So.2d ---- (Fla.), decided February 18, 1984; Public Health Trust v. Brown, 388 So.2d 1084 (Fla.Dist.Ct.App.1980); Cockrum v. Baumgartner, 95 Ill.2d 193, 69 Ill.Dec. 168, 447 N.E.2d 385, cert. denied, --- U.S. ---, 104 S.Ct. 149, 78 L.Ed.2d 139 (1983); Schork v. Huber, 648 S.W.2d 861 (Ky.1983); Kingsbury v. Smith, 122 N.H. 237, 442 A.2d 1003 (1982); P. v. Portadin, 179 N.J.Super. 465, 432 A.2d 556 (1981); Sala v. Tomlinson, 73 A.D.2d 724, 422 N.Y.S.2d 506 (1979); Sorkin v. Lee, 78 A.D.2d 180, 434 N.Y.S.2d 300 (1980); Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 453 A.2d 974 (1982); Hickman v. Myers, 632 S.W.2d 869 (Tex.App.1982); Terrell v. Garcia, 496 S.W.2d 124 (Tex.Civ.App.1973); Beardsley v. Wierdsma, 650 P.2d 288 (Wyo.1982); McNeal v. United States, 689 F.2d 1200 (4th Cir. 1982) (dicta applying Virginia law); White v. United States, 510 F.Supp. 146 (D.Kan.1981) (applying Georgia law).

These cases, recognizing the paramount importance of the family to society, and the need to develop and preserve the family relationship, conclude in one form or another that public policy considerations dictate that the birth of a healthy child is always a benefit to the parents which, as a matter of law, outweighs concomitant financial child rearing burdens imposed upon the parents by the unplanned child's birth. This view was recently expressed by the Supreme Court of Illinois in Cockrum v. Baumgartner, 95 Ill.2d 193, 69 Ill.Dec. 168, 447 N.E.2d 385 (1983). In declining to apply the traditional tort concept that a tortfeasor is liable for all costs resulting from the tortious misconduct, the court there observed, as to rearing costs in negligent sterilization cases, that "[r]easonableness is an indispensable quality in the administration of justice." 69 Ill.Dec. at 173, 447 N.E.2d at 390. It said that to consider the birth of a healthy child as an injury to the parents "offends fundamental values attached to human life." Id. at 171, 447 N.E.2d at 388. It adopted the view that a parent cannot be said to have been damaged by the birth and rearing of a normal, healthy child. It subscribed to the position articulated by the Supreme Court of Wyoming in Beardsley v. Wierdsma, supra, 650 P.2d at 293, that "[t]he bond of affection between child and parent, the pride in a child's achievement, and the comfort, counsel and society of a child are incalculable benefits, which should not be measured by some misplaced attempt to put a specific dollar value on a child's life." The Illinois court concluded:

"In a proper hierarchy of values the benefit of life should not be outweighed by the expense of supporting it. Respect for life and the...

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