Kingsbury v. Smith, 81-150

• Citation: 442 A.2d 1003,122 N.H. 237
• Decision Date: 10 March 1982
• Docket Number: No. 81-150,81-150
• Parties: Frederica J. KINGSBURY et al. v. Alexander C. SMITH, M.D., et al.
• Court: Supreme Court of New Hampshire

Page 1003

442 A.2d 1003

122 N.H. 237

Frederica J. KINGSBURY et al. v. Alexander C. SMITH, M.D., et al.

No. 81-150.

Supreme Court of New Hampshire.

March 10, 1982.

Burns, Bryant, Hinchey, Cox & Shea, Dover (Robert P. Shea, Dover, on brief and orally), for plaintiffs.

Wadleigh, Starr, Peters, Dunn & Kohls, Manchester (Theodore Wadleigh, Manchester, on brief and orally), for defendants.

BATCHELDER, Justice.

This case, raising questions concerning whether New Hampshire recognizes a claim for "wrongful birth" and, if so, what damages may be considered by the trier of fact, comes to us from a certification of questions from the United States District Court for the District of New Hampshire (Devine, C. J.). The questions are:

"1. Under New Hampshire law, may recovery be had for the 'wrongful birth', i.e., the birth of a child which would not have occurred 'but for' the act or omission of the defendant tortfeasor?

2. If the answer to Question No. 1 is in the affirmative, what elements of damages are to be included in the recovery of the parents in such action?

3. If the answer to Question No. 1 is in the affirmative, may a husband and father recover for loss of consortium in such type of action?

4. If the answer to Question No. 1 is in the affirmative, to what extent, if any, will the defendants be permitted any right of setoff as against the damages to be allowed the parents?"

The facts certified by the District Court which form the basis for this decision are as follows:

The plaintiffs, Frederica J. Kingsbury and Bobby Kingsbury, respectively wife and husband, reside in South Sanford, Maine. The defendants, Doctors Alexander C. Smith and Charles C. Thompson, the Rochester OB-GYN Professional Association, and Frisbie Memorial Hospital, are individual and corporate citizens of Rochester, New Hampshire.

Prior to April 4, 1977, the plaintiffs sought obstetrical care from Doctor Smith for Frederica Kingsbury, who was expecting their third child. They advised Doctor Smith that they did not desire to conceive another child. Doctor Smith accordingly arranged for Doctor Thompson to perform a tubal ligation on Mrs. Kingsbury, in which Doctor Smith assisted, at Frisbie Memorial Hospital on April 4, 1977, shortly after the birth of the third child.

On October 19, 1978, however, Mrs. Kingsbury was again admitted to Frisbie Memorial Hospital, where a fourth child, born normal, healthy, alive and well, was delivered by Doctor Smith. On that date, Doctor Thompson again was requested to undertake further sterilization procedures and did so. The plaintiffs then filed a diversity action in federal district court.

Adopting the distinctions set forth in Speck v. Finegold, 268 Pa.Super. 342, 408 A.2d 496, 502 (1979), aff'd, --- Pa. ---, 439 A.2d 110 (1981), we construe this "wrongful birth" action, as described in the certified questions, as an action for "wrongful conception," which is an action for damages arising from the birth of a child to which a negligently performed sterilization procedure, see, e.g., Bowman v. Davis, 48 Ohio St.2d 41, 46, 356 N.E.2d 496, 499 (1976) (per curiam), or a negligently filled birth control prescription which fails to prevent conception, see, e.g., Troppi v. Scarf, 31 Mich.App. 240, 245-46, 187 N.W.2d 511, 517 (1971), was a contributing factor.

Throughout its course, the common law has recognized that life on this planet is not free from all risks and, in this recognition, has endeavored to provide rational remedies to those persons whose lot in life has taken a detrimental turn as the result of the conduct of others who have breached a duty owed to the injured party. In many situations, the outlines of the duty are more apparent than the remedy which society chooses to provide. Such is the case at hand.

Courts which have considered this type of case have not reached a consensus with respect to what damages, if any, may be recoverable. The body of developing law indicates the existence of four different legal positions:

1. Non Recognition of Any Damages Resulting from the Birth of the Child. Although our research shows that no court presently holds that it will not permit any damages for wrongful conception, some commentators have read Christensen v. Thornby, 192 Minn. 123, 255 N.W. 620 (1934), for this proposition. See, e.g., Comment, Liability for Failure of Birth Control Methods, 76 Colum.L.Rev. 1187, 1197 (1976). The Christensen case was based upon deceit in the representations by the doctors to the effect that a sterilization operation would prevent conception by the wife, and in denying relief, the court held that fraudulent intent had not been alleged and stressed the fact that malpractice was not claimed. Christensen, 192 Minn. at 126, 255 N.W. at 622. Dicta in the case stated that no damages were foreseeable because they were too remote. Additional dicta in the case expressed what other courts have since adopted and referred to as the "blessing" theory.

"Instead of losing his wife, the plaintiff has been blessed with the fatherhood of another child. The expenses alleged are incident to the bearing of the child, and their avoidance is remote from the avowed purpose of the operation. As well might plaintiff charge defendant with the cost of nurture and education of the child during its minority."

Id., 255 N.W. at 622. The Minnesota Supreme Court in a more recent wrongful conception case, Sherlock v. Stillwater Clinic, 260 N.W.2d 169, 172-73 (Minn.1977), rejected the interpretation of Christensen that it forbade damages for the resultant birth and the costs of raising the child, pointing out that the issue of damages had never been reached in Christensen.

2. Complete Recovery for the Costs of Child Rearing. The extreme edge or frontier of the contemporary view is expressed in a 1967 California case, where the court, dealing with a negligently performed tubal ligation, held that, upon a finding of a breach of duty, the plaintiff's recoverable damages could include a sum "to replenish the family exchequer so that the new arrival will not deprive the other members of the family of what was planned as their just share of the family income." Custodio v. Bauer, 251 Cal.App.2d 303, 324, 59 Cal.Rptr. 463, 477 (1967). See Cockrum v. Baumgartner, 99 Ill.App.3d 271, 273, 54 Ill.Dec. 751, 753, 425 N.E.2d 968, 970 (1981).

Christensen and Custodio, in contemporary common law, are perhaps more symbolic of approaches to claims in the area of wrongful conception than important for their contribution to the common law. Each case contains factual and procedural limitations on its authority.

3. Child Rearing Costs Offset by the Benefits of Parenthood. The third approach is expressed in cases which recognize a cause of action and permit recovery for the costs of child rearing, but require an offset on the reasoning and application of the "benefits" rule of the Restatement (Second) of Torts § 920 (1977). See, e.g., Troppi v. Scarf, 31 Mich.App. at 254-55, 187 N.W.2d at 517-18; Sherlock v. Stillwater Clinic, 260 N.W.2d at 176.

"Thus, in obedience to the rule of law, we feel compelled to conclude that where the parents of an unplanned, healthy child choose to include this item of damages in their claim, hopefully after being advised of the psychological consequences which could result from litigating such claim, we will permit them to recover the reasonably foreseeable costs of rearing,...