Keel v. Banach

• Decision Date: 16 July 1993
• Citation: 624 So.2d 1022
• Parties: Karen KEEL and Danny Keel v. Warren BANACH, M.D., and Warren Banach, M.D., P.C. 1920471.
• Court: Alabama Supreme Court

Page 1022

624 So.2d 1022

Karen KEEL and Danny Keel v. Warren BANACH, M.D., and Warren Banach, M.D., P.C.

1920471.

Supreme Court of Alabama.

July 16, 1993.

Rehearing Denied Aug. 20, 1993.

Edward L. Hardin, Jr. and Belinda L. Kimble of Hardin & Tucker, Birmingham, for appellants.

W. Stancil Starnes, Randal H. Sellers and M. Christopher Eagan of Starnes & Atchison, Birmingham, for appellees.

SHORES, Justice.

The plaintiffs are Karen and Danny Keel, parents of Justin Keel, who was born on January 18, 1985, with severe multiple congenital abnormalities. Justin died in February 1991, at the age of six. The defendants are Warren Banach, M.D., who was Karen's doctor and who performed the sonographic examinations of the fetus, and his professional corporation. The Keels charged the defendants with medical malpractice in failing to discover several severe, life-threatening fetal abnormalities that, the Keels say, had they been known to them, would have caused them to terminate the pregnancy. Actions such as that filed by the Keels have come to be called actions for "wrongful birth."

The trial judge entered a summary judgment for the defendants, holding, as a matter of law, that no cause of action for wrongful birth, or damages for wrongful birth, are recognized in the State of Alabama. The plaintiffs appealed. We reverse and remand.

Rule 56, A.R.Civ.P., sets forth a two-tiered standard for determining whether to enter a summary judgment. In order to enter a summary judgment, the trial court must determine: 1) that there is no genuine issue of material fact, and 2) that the moving party is entitled to a judgment as a matter of law.

The sole issue on appeal is whether this State recognizes a cause of action for wrongful birth. At the outset, we must emphasize the posture in which this case is now before this Court: The question presented for review is not whether the plaintiffs should ultimately prevail in this litigation, but whether their complaint states a claim upon which relief can be granted.

On October 22, 1984, Karen Keel had her first prenatal visit with Dr. Banach, an obstetrician practicing in Ozark, Alabama. There is conflicting testimony as to the content of the conversations between the physician and his patient pertaining to the couple's medical history. The Keels say that they relayed their concerns regarding this pregnancy because Danny had earlier fathered a stillborn infant with anencephaly, the congenital absence of brain and spinal cord, which is the most severe of spinal cord abnormalities. Spinal cord defects are known to be hereditary, and the Keels contend that they told Dr. Banach that they did not want their child to suffer such a fate.

Dr. Banach did a sonogram on October 26, 1984. He derived a biparietal diameter consistent with 19 weeks' gestation, and a femur length consistent with 22 weeks' gestation. Under "obvious anomalies" he wrote: "none seen." The Keels say that, to alleviate their fears, Dr. Banach moved the transducer around to show them what appeared to be a healthy fetus's head, body, arms, and legs. The sonogram machine produced several photographs of the sonographic images. Two were given to Karen.

Another sonogram was performed on January 4, 1985. Again Dr. Banach marked under "obvious anomalies" "none seen." During this sonogram, Dr. Banach determined that the fetus was a male. As during the first sonogram, the machine produced photographs, and all were retained in the medical records.

Justin was born on January 18, 1985, with severe multiple congenital abnormalities. He had only a two-vessel umbilical cord (as opposed to the normal three-vessel cord), a short cord, ventriculomegaly, absent right leg, imperforate anus, one testicle, one kidney, a vertebrae anomaly in the lumbar sacral region, hydrocephaly, ¹ a large fluid-filled sac extending off the right aspect of the sacrum consistent with meningocele (spina bifida). Justin underwent numerous surgeries during his life. A shunt from his brain to his heart channeled fluids, which, for the most part, prevented any brain damage due to the hydrocephaly. Blood clots from the heart, impregnating the lungs, a known but unpreventable risk of the shunt, were the direct cause of Justin's death.

According to Dr. Banach, the fact that Danny had fathered a stillborn with anencephaly was not revealed to him until after Justin was born.

The Keels sued Dr. Banach, alleging that he had failed to meet the standard of prenatal care and that, had he done so, he would have further investigated questionable sonogram findings. The plaintiffs contend that there were discrepancies in the fetus measurements that should have prompted further investigation. They contend that there were images on the sonogram that showed an oblong head with open frontal bones visible (known as a "lemon sign," frequently noted in spina bifida). They contend that the sonogram findings should have prompted an amniocentesis, which, had it been performed, would in all likelihood have diagnosed this fetus's neurotube defect.

As described by the considerable literature and litigation in this area, a "wrongful birth action" refers to a claim for relief by parents who allege they would have avoided conception or would have terminated the pregnancy but for the negligence of those charged with prenatal testing, genetic prognosticating, or counseling parents as to the likelihood of giving birth to a physically or mentally impaired child. The underlying premise is that prudent medical care would have detected the risk of a congenital or hereditary genetic disorder either before conception or during pregnancy. In such an action, the parents allege that as a proximate result of this negligently performed or omitted genetic counseling or prenatal testing they were foreclosed from making an informed decision whether to conceive a potentially handicapped child or, in the event of a pregnancy, to terminate it. See, Trotzig, The Defective Child and the Actions for Wrongful Life and Wrongful Birth, 14 Fam.L.Q. 15, 16-17 (1980).

The history of wrongful birth actions and the judicial reasoning behind the development of this area of law is traced in a 1992 law review article:

"Courts initially resisted recognizing a cause of action for wrongful birth. The early cases befuddled the courts because, unlike traditional malpractice cases, nothing that the health care provider could have done would have prevented the harm to the child. The logic behind these early suits was that if the parents of the affected child had received proper counseling or diagnosis, they could have decided not to conceive or to seek an abortion. Early case law dealing with wrongful birth actions rejected the notion that the failure to warn the parents of a fetus' risk of serious defect was actionable because the physician was not the proximate cause of the defect. However, liability for a missed diagnosis in other areas of medicine was, and still is, common even though, in such cases, the physician did not cause the illness.

"Another reason that courts were reluctant to recognize the wrongful birth cause of action was that the post-conception remedy available--abortion--was illegal. This reasoning is no longer valid after Roe v. Wade [410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147], which upheld a woman's constitutional right to undergo an abortion during the first two trimesters of pregnancy. As one court noted, '[t]he value of genetic testing programs ... is based on the opportunity of parents to abort afflicted fetuses, within appropriate time limitations.'

"Wrongful birth cases are now widely recognized. An action exists when physicians fail to warn prospective parents that they are at risk of conceiving or giving birth to a child with a serious genetic disorder. This potential liability includes instances in which a reasonable physician should have known of the risk because the couple's previous child had a genetic disorder or because of the woman's advanced age. Liability can also arise if the health care provider fails to advise prospective parents of known risks due to one or both parents belonging to a particular ethnic or racial group. Finally, courts find physicians liable for failing to discuss the availability of genetic services when specific risk assessment services are available. Thus, physicians may be liable for failing to inform a couple about the availability of carrier status testing (to determine whether the parents' genes harbor a defect which, if passed to the child, could cause a genetic disorder) or prenatal diagnosis (to determine if the fetus is currently affected or will develop the genetic disorder)."

Lori B. Andrews, Torts and the Double Helix: Malpractice Liability for Failure to Warn of Genetic Risks, 29 Hous.L.Rev. 149, 152-55 (1992). (Footnotes omitted.) The author of this article reviews court decisions and notes the concern that the issue of damages has caused those courts that have recognized the cause of action. She notes that some courts feel that the benefit of having the child should offset any damages award. However, some disagree with this approach. A justice of the Georgia Supreme Court stated his disagreement in this compelling language:

"More importantly we would not even consider the theory that the joy of parenthood should offset the damages. Would anyone in their right mind suggest that where a healthy fetus is injured during delivery the joy of parenthood should offset the damages? There is no more joy in an abnormal fetus come to full term than a normal fetus permanently injured at delivery. Both are heartbreaking conditions that demand far more psychological and financial resources than those blessed with normal children can imagine."

Atlanta Obstetrics & Gynecology Group v. Abelson, 260 Ga. 711, 398 S.E.2d 557, 565 (1990) (Smith, J., dissenting).

An action for wrongful birth was first considered in Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d...