Marciniak v. Lundborg

• Citation: 450 N.W.2d 243,153 Wis.2d 59
• Decision Date: 16 January 1990
• Docket Number: No. 88-0088,88-0088
• Parties: , 58 USLW 2460 Douglas M. MARCINIAK and Paula J. Marciniak, Plaintiffs-Respondents-Petitioners, v. Gary T. LUNDBORG, M.D., Erick Y. Hakanson, M.D., Ramsey Clinic Associates, P.A., Apple River Valley Memorial Hospital, Inc., and Wisconsin Patients Compensation Fund, Defendants-Appellants.
• Court: United States State Supreme Court of Wisconsin

Page 243

450 N.W.2d 243

153 Wis.2d 59, 58 USLW 2460

Douglas M. MARCINIAK and Paula J. Marciniak Plaintiffs-Respondents-Petitioners, v. Gary T. LUNDBORG, M.D., Erick Y. Hakanson, M.D., Ramsey Clinic Associates, P.A., Apple River Valley Memorial Hospital, Inc., and Wisconsin Patients Compensation Fund Defendants-Appellants.

No. 88-0088.

Supreme Court of Wisconsin.

Argued Oct. 5, 1989.

Decided Jan. 16, 1990.

Ardell W. Skow, William H. Thorie, and Doar, Drill and Skow, S.C., on briefs, Baldwin, James Drill, argued, for plaintiffs-respondents.

Kay Nord Hunt, argued, Thomas J. Niemiec, and Lommen, Nelson, Cole & Stageberg, P.A., on brief, Hudson, for defendants-appellants.

BABLITCH, Justice.

Douglas and Paula Marciniak seek review of a court of appeals' decision which barred their cause of action for costs involved in raising a normal, healthy child conceived subsequent to an allegedly negligent sterilization operation. (The issue of negligence has not yet been tried.) The issues presented to this court are whether the costs of raising the child to the age of majority or beyond are recoverable by the parents, and if so, to what extent these costs should be offset by any benefit they derive from the child. We conclude that the costs of raising the child to the age of majority may be recovered by the parents for damages caused by a negligently performed sterilization operation. We further conclude that these costs may not be offset by any benefits conferred upon the parents by virtue of the presence of the child in their lives. The decision of the court of appeals is therefore reversed and the cause remanded to the trial court for further proceedings.

The facts are as follows. In 1981, Paula Marciniak, wife of Douglas Marciniak, underwent a sterilization operation to avoid having further children. At the time, they had two children, ages 8 and 7. Paula Marciniak discussed undergoing a permanent surgical sterilization with her family physician. She was referred to another physician. The surgery, a "laparoscopy with bilateral fallopian tube cautery," was performed by a third physician.

At the time of the sterilization surgery, Mrs. Marciniak was working 25 hours a week as a clerical aid for the Amery School District to assist the family financially. She worked for the district two school years prior to resigning the September before the baby was born. At the time of her resignation, Marciniak was earning $4.90 an hour.

Mrs. Marciniak testified at her deposition that she used birth control pills prior to the sterilization procedure. She chose surgical sterilization because she desired to get off the pill, and was led to believe that the surgical procedure would be permanent.

The operation was performed in 1981. In 1983, she gave birth to a child. The child was born with no physical or mental impairments. The Marciniaks' two older children were ages ten and nine when the child was born.

Mrs. Marciniak was asked at her deposition why she did not have an abortion. She replied: "I could not kill a baby." She was asked if there was anything in her religion that disapproves of an abortion, and she replied: "I am Catholic." She did not consider giving the child up for adoption: "It was my child."

Marciniak commenced the present action by filing a Submission of Controversy with the Wisconsin Patients Compensation Panel. The action was transferred to the circuit court.

Subsequently, several defendants were dismissed by stipulation and order. The remaining defendants then filed a Motion to Dismiss and/or for Summary Judgment on a number of grounds. As pertains to this appeal, the defendants sought dismissal of the Marciniaks' claim for recovery of child rearing expenses. The trial court ruled in a written decision that the costs of rearing a normal and healthy child to the age of majority are recoverable in an action based on negligent sterilization. However, the trial court also concluded that the defendants may offset the value of any benefits the Marciniaks received by virtue of the presence of the child in their lives.

The court of appeals granted leave to appeal the non-final order, and reversed the circuit court decision. Marciniak v. Lundborg, 147 Wis.2d 556, 433 N.W.2d 617 (Ct.App.1988). The court of appeals concluded that recovery was barred on the basis of the public policy considerations enunciated in Rieck v. Medical Protective Co., 64 Wis.2d 514, 219 N.W.2d 242 (1974). We granted review on February 1, 1989.

The issues presently before this court are limited to whether a cause of action exists for the Marciniaks' expenses of rearing the child to the age of majority or beyond, and if so, whether the costs may be offset by any benefits conferred by the presence of the child in their lives. These issues involve questions of law which we determine independently of the lower courts' decisions. See Ball v. District No. 4, Area Board, 117 Wis.2d 529, 537, 345 N.W.2d 389 (1984).

We conclude that the costs of raising a child to the age of majority may be recovered by the parents for damages caused by a negligently performed sterilization operation. We further conclude that these costs may not be offset by the benefits conferred upon the parents by virtue of the presence of the child in their lives.

I.

We first address the issue of whether the costs involved in raising a normal, healthy child conceived subsequent to an allegedly negligent sterilization operation are recoverable. The general rule in Wisconsin is that a person has an obligation to exercise reasonable care so as to not cause foreseeable harm to another. See Denny v. Mertz, 106 Wis.2d 636, 656, 318 N.W.2d 141 (1982) (citing A.E. Investment Corp. v. Link Builders, Inc., 62 Wis.2d 479, 483-84, 214 N.W.2d 764 (1974). As restated in Hartridge v. State Farm Mut. Auto Ins. Co., 86 Wis.2d 1, 11, 271 N.W.2d 598 (1978):

'Otherwise expressed, the law is that if the act is one which the party ought, in the exercise of ordinary care, to have anticipated was liable to result in injury to others, then he is liable for any injury approximately resulting from it, although he could not have anticipated the particular injury which did happen. Consequences which follow in unbroken sequence, without an intervening efficient cause, from the original negligent act, are natural and proximate; and for such consequences the original wrongdoer is responsible, even though he could not have foreseen the particular results which did follow.' (quoting Christianson v. Chicago, St. P., M. & O.R. Co., 67 Minn. 94, 97, 69 N.W. 640 (1896)).

However, we have also recognized in numerous cases that negligence plus an unbroken sequence of events establishing cause-in-fact does not always and necessarily lead to a determination that a defendant is liable for the plaintiff's injuries. In Rieck, 64 Wis.2d at 517-18, 219 N.W.2d 242, we said:

Even where the chain of causation is complete and direct, recovery may sometimes be denied on grounds of public policy because: (1) The injury is too remote from the negligence; or (2) the injury is too wholly out of proportion to the culpability of the negligent tort-feasor; or (3) in retrospect it appears too highly extraordinary that the negligence should have brought about the harm; or (4) because allowance of recovery would place too unreasonable a burden (in the case before us, upon physicians and obstetricians); or (5) because allowance of recovery would be too likely to open the way for fraudulent claims; or (6) allowance of recovery would enter a field that has no sensible or just stopping point. See also Colla v. Mandella, 1 Wis.2d 594, 598-99, 85 N.W.2d 345 (1957), quoted and followed in Hass v. Chicago & North Western Ry. Co., 48 Wis.2d 321, 326, 179 N.W.2d 885 (1970).

This case presents us with the question of whether the normal rule of recovery in negligence cases should be followed, thereby allowing the Marciniaks to recover the cost of raising the child after proof of causal negligence, or whether public policy considerations dictate denial of recovery notwithstanding a complete and direct chain of causation from the alleged negligence to the injury. Defendants present numerous public policy considerations which they contend dictate that we deny recovery.

Defendants first argue that child rearing costs are too speculative and that it is impossible to establish with reasonable certainty the damages to the parents. We do not agree that the damages are too speculative. As noted in Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511, 520-21 (1971), similar calculations are routinely performed in countless other malpractice situations. On this same subject, the Maryland Court of Appeals has also stated that such a computation is based upon foreseeable factors relating to the maintenance, support, and educational expenses which the parents will incur until the child reaches majority. Jones v. Malinowski, 299 Md. 257, 473 A.2d 429, 436 (1984). Juries are frequently called on to make far more complex damage assessments in other tort cases. There may thus actually be a less speculative calculation involved than in many other malpractice actions which are routinely allowed, such as those involving pain, suffering, and mental anguish. Population studies are readily available to provide figures for the costs of raising a child. We therefore conclude the defendants' position with respect to speculative damages is without merit.

Defendants next argue that because the costs of raising a child are so significant, allowing these costs would be wholly out of proportion to the culpability of the negligent physician. We find no merit in that contention. Admittedly, the cost of raising a child is substantial. However, the public policy of this state does not categorically immunize defendants from liability for foreseeable damages merely because the damages may be substantial. Individuals often seek sterilization precisely because the...