Liddington v. Burns

• Citation: 916 F. Supp. 1127
• Decision Date: 26 January 1996
• Docket Number: No. CIV-95-0005-M.,CIV-95-0005-M.
• Parties: Robert LIDDINGTON and Shirley Liddington, individually, and as parents and next friends of Holly Nicole Liddington, a minor, Plaintiffs, v. Larry A. BURNS, D.O., Larry A. Burns, D.O., Inc., James E. Short, M.D. and James E. Short, M.D., Inc., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

916 F. Supp. 1127

Robert LIDDINGTON and Shirley Liddington, individually, and as parents and next friends of Holly Nicole Liddington, a minor, Plaintiffs, v. Larry A. BURNS, D.O., Larry A. Burns, D.O., Inc., James E. Short, M.D. and James E. Short, M.D., Inc., Defendants.

No. CIV-95-0005-M.

United States District Court, W.D. Oklahoma.

October 31, 1995.

Order Denying Reconsideration and Clarifying Decision January 26, 1996.

COPYRIGHT MATERIAL OMITTED

David L. Thomas, Glendell D. Nix, Oklahoma City, Oklahoma, for plaintiffs.

John Wiggins, Randall Sewell, Oklahoma City, Oklahoma, for defendants.

ORDER DENYING MOTION FOR SUMMARY JUDGMENT

MILES-LaGRANGE, District Judge.

Before the Court is the motion for summary judgment filed September 1, 1995 by defendants James E. Short, M.D. and James E. Short, M.D., Inc. (collectively, "Dr. Short"). Plaintiffs responded October 2, 1995. Based upon the parties' submissions, the Court makes its determination.

INTRODUCTION

This is a medical negligence case arising from the birth of Holly Nicole Liddington with severe cerebral and neurological deformities. Shirley Liddington ("Mrs. Liddington") and Robert Liddington ("Mr. Liddington") are Holly's parents.

Early in the first trimester of her pregnancy, Mrs. Liddington (then Shirley Chambers) decided to have an abortion and selected Dr. Larry A. Burns to perform it. He made his first attempt on January 5, 1993. It was unsuccessful. He made his second attempt on January 9, 1993. It also was unsuccessful. Mrs. Liddington decided to see a different doctor and on January 12, 1993, she saw Dr. Short to complete the abortion. She told Dr. Short of Dr. Burns' two failed abortion attempts. Dr. Short performed an ultrasound and told her the fetus was "probably" normal. She decided to continue her pregnancy. Dr. Short treated her from January 12 to mid-May 1993, but never performed another ultrasound on her. In mid-May, Mr. and Mrs. Liddington moved to Phoenix, Arizona to be near his parents. Mrs. Liddington's Phoenix physician performed an ultrasound and informed her the fetus was severely deformed. By then she was in her third trimester (28 weeks) and her physician informed her that she could not legally obtain an abortion. Holly was born August 17, 1993, with severe cerebral and neurological deformities. The cost of her care is approximately $300,000.00 per year.

Mr. and Mrs. Liddington allege Dr. Short was negligent in advising Mrs. Liddington that there was probably nothing wrong with the fetus and in encouraging her to carry her pregnancy to term. They further allege Dr. Short was negligent in failing to order repeat ultrasound tests on a regular basis following his initial examination on January 12, 1993, because those tests would have revealed the fetus' gross central nervous system abnormalities at a time when it would have been legally permissible for Mrs. Liddington to terminate her pregnancy.

DISCUSSION

Initially, Dr. Short contends that he has no liability because Oklahoma would not allow the Liddington's to recover damages proximately caused by his alleged negligence under the circumstances of this case. In other words, Dr. Short contends Oklahoma would not recognize this type of medical negligence action (which, as explained below, is often labeled a wrongful birth action).

At the outset, the Court emphasizes that the question at this point is not who should ultimately prevail. The jury will decide that. The question is whether Oklahoma would recognize a wrongful birth claim.

Also at the outset, the Court emphasizes this case is not about whether abortion is right or wrong. The Supreme Court has already established a constitutional right of parents to decide whether to prevent the conception or birth of a child. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (reaffirming constitutional right of a woman to chose an abortion before fetal viability). Consequently, it is undisputed that during the time Mrs. Liddington was being treated by Dr. Short, she had the right to have an abortion and the right to seek medical advice that might lead to her decision to have an abortion. The existence of this right and of the correlative duty of health care providers not to deprive her of an opportunity to make an informed decision are well established. Haymon v. Wilkerson, 535 A.2d 880 (D.C.App.1987).

Wrongful pregnancy, wrongful birth and wrongful life actions

There are three categories of cases in this area of medical negligence litigation. They are labeled wrongful pregnancy, wrongful birth and wrongful life actions. See, e.g., Keel v. Banach, 624 So.2d 1022 (Ala.1993). In a "wrongful pregnancy" action, a parent claims that the physician's negligence in the provision of contraceptives, in the performance of a sterilization procedure or in the performance of an abortion procedure, led to the birth of a healthy and normal, but unplanned child. In a "wrongful birth" action, a parent claims the physician's negligence caused the birth of an unhealthy, abnormal child. And in a "wrongful life" action, an unhealthy, abnormal infant sues on its own behalf (or through its parent(s)).¹

Using the labels identified above, this is a wrongful birth action.² However, the labels are not instructive because it is not the pregnancy, birth or life that is wrongful. As stated by the Maryland court:

Any "wrongfulness" lies not in the life, the birth, the conception or the pregnancy, but in the negligence of the physician. The harm, if any, is not the birth itself but the effect of the defendant's negligence on the parents resulting from the denial to the parents of their right, as the case may be, to decide whether to bear a child or whether to bear a child with a genetic or other defect.

Reed v. Campagnolo, 332 Md. 226, 630 A.2d 1145, 1150 (1993) (quoting Viccaro v. Milunsky, 406 Mass. 777, 551 N.E.2d 8, 10 n. 3 (1990)).

Moreover, the so-called wrongful pregnancy, wrongful birth and wrongful life actions are not "new" torts. They fall within the traditional boundaries of negligence actions. Keel, 624 So.2d at 1026; Arche v. United States of America, Dept. of the Army, 247 Kan. 276, 798 P.2d 477 (1990); Robak v. United States, 658 F.2d 471 (7th Cir.1981).

Nevertheless, because the literature and the decisions from other jurisdictions use the labels, this Court will use them too.

The Erie doctrine

A federal court sitting in diversity must apply the law of the forum state, in this case Oklahoma, and thus must ascertain and apply Oklahoma law with the objective that the result obtained in the federal court should be the result that would be reached in an Oklahoma court. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Wood v. Eli Lilly & Co., 38 F.3d 510, 512 (10th Cir.1994). If the federal court cannot ascertain the law of the forum state, it must in essence sit as a state court and predict how the highest state court would rule. Carl v. City of Overland Park, Kansas, 65 F.3d 866 (10th Cir.1995). This is accomplished by considering related decisions from the forum state, the "majority rule", decisions from other jurisdictions whose doctrinal approach is substantially the same, treatises, law review articles, and other legal resources. See 19 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4507 at 100-03 (1982).

Since Oklahoma has not yet addressed wrongful birth actions, this Court must reach the decision it believes the Oklahoma Supreme Court would reach.

Guidance from Oklahoma Supreme Court decisions

Two decisions of the Oklahoma Supreme Court suggest that Oklahoma would recognize wrongful birth actions. First, in recognizing wrongful pregnancy actions, the Oklahoma Supreme Court held that "where the exercise of a constitutional right to refrain from procreation is interfered with as a result of the negligent performance of a physician in an attempted sterilization procedure, it is clear that a cause of action exists to recover for the detriment resulting from such negligence." Morris v. Sanchez, 746 P.2d 184, 185-86 (Okla.1987). There seems little doubt the Oklahoma Supreme Court would reach the same conclusion where the same constitutional right is at stake and the only difference is the form of the physician's negligence.

Second, in Graham v. Keuchel, 847 P.2d 342 (Okla.1993), the Oklahoma Supreme Court reversed a judgment in favor of a physician in a medical negligence case where the alleged negligence was the failure to type the mother's blood and administer the hyper-immune globulin Rho-GAM during an earlier miscarriage, which proximately caused the death of her infant son four days after his birth. While Graham was a wrongful death action, not a wrongful birth action, the legal analysis of the medical negligence claim is the same. The only difference between Graham and a wrongful birth action is whether the baby dies (wrongful death) or lives with severe abnormalities (wrongful birth).

The "majority rule"

Virtually every court that has addressed the wrongful birth cause of action has recognized it. Robak v. United States, 658 F.2d 471 (7th Cir.1981) (applying Alabama law); Keel v. Banach, 624 So.2d 1022 (Ala.1993); Lininger v. Eisenbaum, 764 P.2d 1202 (Colo. 1988); Garrison v. Medical Ctr. of Del., Inc., 581 A.2d 288 (Del.1989); Haymon v. Wilkerson, 535 A.2d 880 (D.C.1987); Fassoulas v. Ramey, 450 So.2d 822 (Fla.1984); Blake v. Cruz, 108 Idaho 253, 698 P.2d 315 (1984); Goldberg v. Ruskin, 113 Ill.2d 482, 101 Ill. Dec. 818, 499 N.E.2d 406 (1986); Arche v. United States of America, Dept. of the Army, 247 Kan. 276, 798 P.2d 477 (1990); Pitre v. Opelousas General Hosp., 530 So.2d 1151 (La.1988); Reed v. Campagnolo, 332 Md. 226, 630 A.2d 1145 (1993); Viccaro v. Milunsky, 406 Mass. 777, 551 N.E.2d 8 (1990); Proffitt v. Bartolo, 162 Mich.App. 35, 412 N.W.2d 232 (1987...