Lininger By and Through Lininger v. Eisenbaum

• Decision Date: 28 November 1988
• Docket Number: No. 86SC307,86SC307
• Citation: 764 P.2d 1202
• Parties: Thomas Pierce LININGER, a minor, By and Through his parents and next friends, Richard LININGER and Pamela Lininger, and Richard Lininger and Pamela Lininger, individually, Petitioners, v. Allan M. EISENBAUM, M.D., W. Bruce Wilson, M.D., Gerald E. Meltzer, M.D., and Gerald E. Meltzer, M.D., P.C., Respondents.
• Court: Colorado Supreme Court

Page 1202

764 P.2d 1202

Thomas Pierce LININGER, a minor, By and Through his parents and next friends, Richard LININGER and Pamela Lininger, and Richard Lininger and Pamela Lininger, individually Petitioners, v. Allan M. EISENBAUM, M.D., W. Bruce Wilson, M.D., Gerald E Meltzer, M.D., and Gerald E. Meltzer, M.D., P.C. Respondents.

No. 86SC307.

Supreme Court of Colorado En Banc.

Nov. 28, 1988.

Neil A. Hillyard, M. Susan Kudla, Branney, Hillyard, Kudla and Lee, Englewood, for petitioners.

Peter W. Pryor, Ingrid E. Slezak, Pryor, Carney & Johnson, Englewood, for respondents.

Gerald P. McDermott, Gene M. Hoffman, Hoffman & Boyd, Denver, for amicus curiae Colorado Trial Lawyers Ass'n.

Susan Smith Fisher, Breit, Best, Richman and Bosch, P.C., Denver, for amicus curiae Colorado Defense Lawyers Ass'n.

ROVIRA, Justice.

Plaintiffs Richard and Pamela Lininger and their son, Pierce, seek review of the district court's dismissal of their medical malpractice claims against the defendants-physicians. We granted the Liningers' petition for a writ of certiorari pursuant to C.A.R. 50 on the following issues: (1) Does the complaint filed by an infant's parents, alleging negligent conduct by physicians resulting in wrongful birth, state a claim upon which relief may be granted? and (2) Does the complaint filed on behalf of an infant, alleging negligent conduct by physicians resulting in wrongful life, state a claim upon which relief may be granted?

We answer the first question in the affirmative, the second in the negative, and accordingly affirm in part and reverse in part the district court's order of dismissal.

I.

Because we are assessing the legal sufficiency of the Liningers' complaint, we accept the following factual allegations as true. On October 14, 1981, Stephen Skyler Lininger (Stephen) was born to Pamela and Richard Lininger (Liningers). Dr. Caplan, Stephen's pediatrician, examined him in March 1982, and detected problems with Stephen's vision. Stephen was later examined by Dr. Eisenbaum, a pediatric ophthalmologist, Dr. Wilson, a neuro-ophthalmologist, and Dr. Meltzer, an ophthalmologist. Each physician opined that Stephen had a congenital optic nerve hypoplasia.

The Liningers were concerned that Stephen's blindness might have arisen from a genetic defect. Although they thought a fully sighted child would be beneficial in assisting Stephen's development, they were unwilling to have another blind child. To better inform their decision, the Liningers sought their physicians' advice about the possibility that a second child would be born blind.

The defendants-physicians informed the Liningers that, in their opinion, Stephen's affliction was non-hereditary. In reliance on that advice, the Liningers chose to conceive a second child, and on August 26, 1983, Thomas Pierce Lininger (Pierce) was born. A few months later, it was discovered that he, too, was blind. Both children were subsequently diagnosed as being afflicted with Leber's congenital amaurosis, an hereditary form of blindness. Given that Stephen was born with Leber's, the risk that Pierce would suffer a similar disability was one in four.

The Liningers allege that the defendants were negligent in failing to diagnose properly Stephen's condition as Leber's congenital amaurosis when they first examined him, in communicating the misdiagnosis to the Liningers, and finally, in advising them that Stephen's affliction was not hereditary. But for those acts of negligence, the complaint further alleges, the Liningers would "have avoided conception or terminated the pregnancy...." Pierce claims that as a result of the defendants' negligence, he has suffered a loss of enjoyment of a natural life, has endured pain and suffering, and will suffer in the future. Both the Liningers and Pierce seek general damages for emotional distress and pain and suffering, and special damages for doctors, nurses, hospitals, and special education.

On defendants' motion for summary judgment, the district court found that neither the Liningers nor Pierce stated cognizable claims for relief against defendants under Colorado law, and dismissed the complaint in its entirety. ¹

II.

The complaint attempts to state a "wrongful birth" claim on behalf of the Liningers and a "wrongful life" claim on behalf of Pierce. ² "Wrongful birth" is the term used to describe a medical malpractice claim brought by the parents of a child born with an impairment or a birth defect. In this case, the malpractice claim is based on an allegedly negligent diagnosis which resulted in the failure to properly inform the parents of potential risks to a second child. The parents allege that but for a physician's negligence in either misinforming them or failing to inform them about the likelihood that their child would be born with a birth defect or impairment, they would not have conceived or would not have carried to term the child who was subsequently born with an impairment. "Wrongful life," on the other hand, denominates a medical malpractice claim in which the child alleges that but for a physician's negligence, as described above, he would not have been born to suffer the impairment. ³

Although courts and commentators often speak of wrongful life and wrongful birth as torts in themselves, it is more accurate to view these terms as describing the result of a physician's negligence. The asserted negligence may involve any number of distinguishable negligent acts including, but not limited to, the misdiagnosis of an hereditary condition, the misrepresentation of the risks associated with conception and delivery of a child, the negligent interpretation of diagnostic tests, or the negligent performance of a sterilization procedure. ⁴

The questions before us are whether the Liningers' complaint sufficiently alleges facts which, if proven, entitle them to relief, and similarly, whether Pierce's allegations state a claim upon which he could be granted relief. We address the purported claims in turn.

A.

To state a claim sounding in tort upon which relief may be granted, a complaint must identify (1) a legal duty the defendant owes to the plaintiff, (2) the defendant's breach of that duty, and (3) an injury to the plaintiff that is (4) proximately caused by the defendant's breach. W. Prosser & W. Keeton, The Law of Torts 164-65 (5th ed. 1984).

The Liningers first assert that each defendant had a duty to disclose the nature of Stephen's impairment, and further, each defendant had a duty to inform them of the enhanced likelihood that a second child would be similarly afflicted. They then allege that defendants negligently failed to accurately diagnose Stephen's condition, and thus negligently failed to inform them of the increased risk to a second child.

In Bloskas v. Murray, 646 P.2d 907 (Colo.1982), we recognized that a cause of action for negligent misrepresentation will lie against a physician who, during the course of the physician-patient relationship, "negligently conveys false information to the patient, and the patient relies upon the information" to his detriment. 646 P.2d at 915. Moreover, we have recognized that a physician owes to his patients the duty to act within reasonable standards of medical care in diagnosing the patient's medical condition. See Comstock v. Collier, 737 P.2d 845, 848 (Colo.1987); Foose v. Haymond, 135 Colo. 275, 283, 310 P.2d 722, 726 (1957). Defendants do not contend, nor do we see any reason to find, that those duties did not arise in their diagnosis of Stephen and provision of medical advice to the Liningers. ⁵

The complaint sufficiently alleges, therefore, that defendants breached some duty owed to the Liningers. The complaint also adequately alleges, and again defendants do not disagree, that the defendants' purported negligence proximately caused the birth of Pierce since the Liningers would not have conceived a second child (or would have terminated the pregnancy) had they accurately been apprised of the possibility that a second child would suffer the same affliction. ⁶

Finally, the Liningers assert that they were damaged in the following respects: Plaintiffs Richard and Pamela Lininger have incurred expenses on behalf of Thomas Pierce Lininger for doctors, nurses, hospitals, medicines, therapists, special schools, special education and special equipment and will in the future incur [similar expenses]. Plaintiffs Richard and Pamela have in the past suffered a loss of time and earnings and will in the future suffer a loss of time and earnings, all to their damage ... [and] have in the past experienced emotional distress, embarrassment, humiliation and anxiety and will in the future experience emotional distress, embarrassment, humiliation and anxiety.

Although defendants did not assert before the trial court that the Liningers failed to plead a cognizable injury resulting from their asserted negligence, they now urge that we follow the Supreme Court of North Carolina in declaring that:

In order to allow recovery [for wrongful birth] courts must ... take a step into entirely untraditional analysis by holding that the existence of a human life can constitute an injury cognizable at law. Far from being "traditional" tort analysis, such a step requires a view of human life previously unknown to the law of this jurisdiction. We are unwilling to take any such step because we are unwilling to say that life, even life with severe defects, may ever amount to a legal injury.

Azzolino v. Dingfelder, 315 N.C. 103, 109-112, 337 S.E.2d 528, 533-34 (1985), cert. denied, 479 U.S. 835, 107 S.Ct. 131, 93 L.Ed.2d 75 (1986) (emphasis in original).

We disagree. The Liningers allege, at a minimum, that but for the defendants' negligence they would not be burdened by extraordinary medical and education expenses associated with the treatment of Pierce's blindness. That monetary burden is no different from medical or rehabilitation expenses associated with any personal injury,...