M.A. v. U.S.

• Decision Date: 02 January 1998
• Docket Number: No. S-7593,S-7593
• Citation: 951 P.2d 851
• Parties: M.A., individually and as parent and next friend to J.A., and N.A., as parent and next friend to J.A., a minor child, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: Alaska Supreme Court

Page 851

951 P.2d 851

M.A., individually and as parent and next friend to J.A. and N.A., as parent and next friend to J.A., a minor child, Plaintiffs, v. UNITED STATES of America, Defendant.

No. S-7593.

Supreme Court of Alaska.

Jan. 2, 1998.

Keenan Powell, Powell & Slaten, LLC, Anchorage, for Plaintiff.

Richard L. Pomeroy, Assistant United States Attorney, and Robert C. Bundy, United States Attorney, Anchorage, for Defendant.

Before COMPTON, C.J., and MATTHEWS, EASTAUGH, FABE and BRYNER, JJ.

OPINION

BRYNER, Justice.

I. INTRODUCTION

We accepted certification in this case to decide whether a cause of action exists under Alaska law for a physician's negligent failure to diagnose a pregnancy and, if so, the scope of recovery allowed under that cause of action. We conclude that negligent failure to diagnose a pregnancy gives rise to a cause of action for medical malpractice and is compensable to the extent that damages are ordinarily allowable in medical malpractice cases, but that no recovery may be awarded for expenses of rearing a healthy child born as a result of the misdiagnosis.

II. FACTS AND PROCEEDINGS

M.A. and N.A., acting on behalf of their minor daughter, J.A., filed a suit in federal court against the United States of America (the United States) for injuries stemming from the allegedly negligent failure of an Alaska Native Medical Center physician to diagnose J.A. as being pregnant. M.A. and N.A. contend that the negligence delayed J.A.'s awareness of her condition and precluded her from safely aborting her child, thus resulting in the birth of a healthy child. M.A. separately seeks damages in her own right for negligent infliction of emotional distress.

Upon the filing of cross motions for summary judgment, the United States District Court for the District of Alaska certified the following questions:

1. Does negligent failure to diagnose a pregnancy which results in the birth of a healthy child give rise to a cause of action for medical malpractice?

2. In a cause of action for negligent failure to diagnose pregnancy, what damages are recoverable for the birth of a healthy child?

3. Specifically, would recoverable damages include past medical expenses, pain and suffering of the mother, and the cost of raising the child?

4. Would any recoverable damages be offset by the benefits the parent derives from the child?

5. If the mother is precluded from bringing a claim for negligent failure to diagnose pregnancy, may a close relative bring a claim for negligent infliction of emotional distress?

We accepted certification pursuant to Alaska Appellate Rule 407 ¹ and now address these questions.

III. DISCUSSION

A. Standard of Review

A decision by this court upon certification from another court involves determinative questions of Alaska law as to which there is no controlling precedent. Appellate Rule 407(a). Because we address questions of law and essentially stand in the shoes of the certifying court, we must exercise our independent judgment and select "the rule of law that is most persuasive in light of precedent, reason, and policy." Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). For purposes of resolving the certified questions, we assume that J.A.'s treating physician negligently failed to diagnose her pregnancy, thereby precluding J.A. from opting for an abortion and resulting in her delivery of a healthy child. See Poor v. Moore, 791 P.2d 1005, 1005, 1008 (Alaska 1990).

B. Should a Cause of Action Be Recognized for a Physician's Negligent Failure to Diagnose a Pregnancy?

We first consider whether to recognize a cause of action for negligent failure to diagnose a pregnancy. ² The United States, arguing that the issue is one of public policy, undertakes an analysis under D.S.W. v. Fairbanks North Star Borough School District, 628 P.2d 554, 555 (Alaska 1981), where we adopted a multifactored test for deciding whether a legal duty should be deemed to arise in novel situations. ³ The result of the D.S.W. analysis, in the United States' view, is that no duty should be imposed here.

The D.S.W. test, however, does not apply if the existence of a duty is governed by statute. ⁴ In the present case, the United States' argument mistakenly assumes the absence of any generally applicable physician-patient duty arising under statute. The subject of medical malpractice is addressed in AS 09.55.530-.560, whose express purpose is to "codify the law with regard to medical liability." AS 09.55.530. Alaska Statute 09.55.540(a) specifically describes a physician's duty to act with "the degree of knowledge or skill possessed or the degree of care ordinarily exercised under the circumstances, at the time of the act complained of, by health care providers in the [doctor's] field or specialty." ⁵ The diagnosing of pregnancy is well within the mainstream of commonly rendered medical services to which this provision applies.

Moreover, the United States' D.S.W. analysis focuses too heavily on the specific circumstances of the present case. The existence of a duty turns not on the particularized facts of a given case, but rather on the basic nature of the relationship between the parties to the cause of action. ⁶ On past occasions we have recognized that the unique nature of the physician-patient relationship confers upon physicians a fiduciary responsibility toward their patients. See Chizmar v. Mackie, 896 P.2d 196, 203-04 (Alaska 1995) (holding that a doctor has the duty to refrain from conduct that would foreseeably result in emotional harm to a patient).

Given the provisions of AS 09.55.540(a) and this court's recognition of the fiduciary nature of the physician-patient duty, we conclude that a complaint alleging an examining physician's negligent failure to diagnose a pregnancy, as well as proximately resulting injuries, states a valid cause of action for medical malpractice.

C. Are Expenses of Child Rearing Compensable when Negligent Misdiagnosis Results in the Birth of a Healthy Child?

The more difficult question is how to conceptualize and compensate injuries stemming from this tort. The United States concedes that if negligent failure to diagnose a pregnancy is to be recognized as a viable cause of action, a plaintiff who proves that a misdiagnosis has precluded termination of the pregnancy should be entitled to recover ordinary tort damages through the time of childbirth, including medical expenses, pain and suffering associated with the pregnancy and delivery, and lost wages. Cf. Poor v. Moore, 791 P.2d 1005, 1008 (Alaska 1990). Damages for emotional distress would also be recoverable. See Chizmar v. Mackie, 896 P.2d at 203-04.

A harder issue is whether the costs of raising a healthy child may additionally be awarded and, if so, whether these damages should be offset by the benefits of parenthood. Neither of the two jurisdictions recognizing a cause of action for negligent failure to diagnose a pregnancy has held that child-rearing expenses are compensable. See Rinard v. Biczak, 177 Mich.App. 287, 441 N.W.2d 441 (1989); Debora S. v. Sapega, 56 A.D.2d 841, 392 N.Y.S.2d 79 (1977).

Courts dealing with the related issue of "wrongful pregnancy"--a category typically encompassing failed sterilization procedures resulting in unwanted pregnancies ⁷--are divided on the recoverability of child-rearing expenses: some allow full recovery, others adopt a mixed approach in which expenses are offset by the benefits of having a child, but most allow no recovery. ⁸ This split in authority in wrongful pregnancy cases largely reflects diverging policy views. ⁹ States denying childrearing expenses advance two principal rationales: first, the fear that children might someday suffer harm upon learning that they were not wanted and that a person other than a parent funded their upbringing; ¹⁰ second, the belief that a normal, healthy child should not be regarded as an injury. ¹¹ An additional rationale sometimes mentioned is that child-rearing costs are too speculative. ¹² Courts allowing recovery for wrongful pregnancy have disparaged each of these rationales. ¹³

In assessing the relative persuasiveness of these divergent authorities, we take guidance from Poor v. Moore, 791 P.2d at 1007-08, where we declined to allow child-rearing expenses to a mother who had been seduced and impregnated by her therapist. We assumed in Poor that the act of seduction amounted to malpractice, but we nonetheless concluded that the tortious conduct should not relieve the mother of her duty to support her child. Id. We took the view that recovery of this kind "could seldom, if ever, result in benefit to a child." Id. at 1008 (quoting Barbara A. v. John G., 145 Cal.App.3d 369, 193 Cal.Rptr. 422 (1983)).

While M.A. and N.A. accurately observe that Poor is not binding here because that case involved an action by one parent against another, Poor is nonetheless highly persuasive. For if "[t]he fact that the child was conceived during the commission of a tort on his mother does not relieve her of the statutory and common law duty of support," Poor, 791 P.2d at 1007, then it would seem anomalous that the fact of a failure to diagnose a pregnancy should relieve both parents of their duty to care for a child whom they conceived through a volitional act of sexual intercourse.

There is also reason to fear that such a rule would tend to influence the fates of children who are born of unplanned and unwanted pregnancies. When a young mother like J.A. considers whether to keep or relinquish for adoption her newborn child, she faces a profoundly difficult and uniquely personal decision. The child's best interests will clearly be served if this decision is firmly grounded in the mother's family values, her moral convictions, and her feelings for her child; yet a rule permitting awards of child-rearing expenses might encourage a decision founded instead on the vagaries of legal strategy and the desire for compensation. The risk of this...