Miller v. Duhart

• Citation: 637 S.W.2d 183
• Decision Date: 01 June 1982
• Docket Number: No. 44471,44471
• Parties: Virginia MILLER, Richard Miller, Deitria Miller, Sabrina Miller, Donyell Miller, Dena Miller and Dawon Miller, Plaintiffs-Appellants, v. Fred DUHART, D.O., Alan S. Palmer, D.O. and Normandy Osteopathic Hospital, Defendants-Respondents.
• Court: Court of Appeal of Missouri (US)

Page 183

637 S.W.2d 183

Virginia MILLER, Richard Miller, Deitria Miller, Sabrina

Miller, Donyell Miller, Dena Miller and Dawon

Miller, Plaintiffs-Appellants, v. Fred DUHART, D.O., Alan S. Palmer, D.O. and Normandy

Osteopathic Hospital, Defendants-Respondents.

No. 44471.

Missouri Court of Appeals, Eastern District, Division Three.

June 1, 1982.

Motion for Rehearing and/or Transfer Denied July 16, 1982.

Application to Transfer Denied Sept. 13, 1982.

Susan M. Hais, Clayton, for plaintiffs-appellants.

John J. Horgan, St. Louis, for DuHart.

George L. Fitzsimmons, Anthony R. Behr, Clayton, for Palmer.

Sanford Goffstein, Don R. Sherman, Clayton, for Normandy.

SNYDER, Judge.

This is an action in which the plaintiffs seek damages for the "wrongful life" or "wrongful birth" of a child born after the allegedly negligent performance of a bilateral tubal ligation. The Circuit Court of St. Louis County sustained the defendants' motion to dismiss, ruling that the action was barred by the two-year statute of limitations, § 516.105 R.S.Mo.1978. ¹ The plaintiffs appealed. The judgment is affirmed.

Appellant Virginia Miller, upon the birth of her fourth child, decided she wanted no more children. Respondents Alan S. Palmer, D.O. and Fred DuHart, D.O. were retained to perform a bilateral tubal ligation. The procedure was performed August 25, 1976 at Normandy Osteopathic Hospital. On February 21, 1980, Mrs. Miller's fifth child, Dawon, was born. Prior to the birth of the child, the Millers had no indication that the sterilization operation was ineffective.

Mrs. Miller and her husband, Richard, brought this action against Alan S. Palmer, D.O., Fred DuHart, D.O. and Normandy Osteopathic hospital alleging damages for lost wages, the expense of raising the unplanned child and special expenses. In addition, Mr. Miller claims damages for loss of consortium. The Miller children sought damages for the loss of their mother's and father's society, care, comfort and protection, as well as the loss of financial support resulting from the birth of the additional sibling, who was also named as plaintiff.

The lower court concluded that the cause of action fell under § 516.105 which provides:

"All actions against physicians, hospitals, dentists, registered or licensed practical nurses, optometrists, pediatrists, pharmacists, chiropractors, professional physical therapists, and any other entity providing health care services and all employees of any of the foregoing acting in the course and scope of their employment, for damages for malpractice, negligence, error or mistake related to healthcare shall be brought within two years from the date of the occurrence of the act of neglect complained of, except that a minor under the full age of ten years shall have until his twelfth birthday to bring action and except that in cases in which the act of neglect complained of is introducing and negligently permitting foreign object to remain within the body of a living person, the action shall be brought within two years from the date of discovery of such alleged negligence, or from the date on which the patient in the exercise of ordinary care should have discovered such alleged negligence, whichever date first occurs, but in no event shall any action for damages for malpractice, error, or mistake be commenced after the expiration of ten years from the date of the act of neglect complained of."

The "act of neglect complained of" was determined to be the performance of the tubal ligation, which "occurred" on August 25, 1976. Plaintiffs filed this action January 16, 1981, more than four years after the operation was performed. The lower court granted the defendants' motions to dismiss, holding the action barred by the two-year limitations period set forth in § 516.105.

The plaintiffs appeal on three points. First, they argue that the children's cause of action was not barred by § 516.105 because all of the Miller children were under the age of ten and had until age twelve to maintain a cause of action. Second, appellants assert that this "wrongful birth" action falls under the general tort statute, § 516.100 which provides that the statute of limitations begins to run from the time the injury is capable of ascertainment, rather than from the time the negligent act occurred. Third, the appellants claim that even if this court determines that the causes of action fall under the malpractice statute, § 516.105, the mother and child continued treatment pursuant to the child's birth, thereby tolling the statute.

Section 516.105 requires that this action be brought within two years from the date of the occurrence of the act of neglect complained of "except that a minor under the full age of ten years shall have until his twelfth birthday to bring action ...." The language of the statute is clear. If the Miller children have a legally cognizable cause of action, they are not barred from bringing it under the statute of limitations which applies to malpractice actions.

Neither Dawon Miller, whose birth gave rise to these causes of action, nor the other Miller siblings, have a legally cognizable cause of action. Therefore, the judgment of the trial court dismissing the counts of plaintiffs' petition seeking damages for the children must be affirmed.

Appellant Dawon Miller, the child born after the unsuccessful sterilization operation, claims damages for injuries resulting from negligent acts occurring prior to his conception: the allegedly negligent performance of the sterilization procedure. In appellant's brief, this is termed a "wrongful life" tort. It is claimed that absent the negligence of the defendant, Dawon Miller would not have been born. See, Note, In Determining Liability for "Wrongful Life": Curlender v. Bio-Science Laboratories-A Step in the Right Direction? 17 New Eng.L.Rev. 213 n. 1 (1981). In contrast to ordinary prenatal tort cases, where the defendant's negligence results in some form of birth defect, the appellant makes no such claim. The injury he alleges is his birth. In effect, the child is claiming that he would be better off unborn. Note, Wrongful Conception as a Cause of Action and Damages Recoverable, 44 Mo.L.Rev. 589, 590 n. 5 (1979). See also, Annotation, 83 A.L.R.3d 15, 19 n. 3 (1978).

The United States Court of Appeals for the Eighth Circuit has recognized the right of a child "in esse" to bring an action for prenatal injuries. In Bergstreser v. Mitchell, 577 F.2d 22 (8th Cir. 1978), which appellant cites as supportive of his claim, the plaintiff child claimed damages for injuries resulting from a caesarean section performed before the child was conceived. The mother later became pregnant with the plaintiff child. Several weeks prior to the expected delivery of the child, she suffered an occult rupture of the uterus. It was claimed that the rupture was caused by the allegedly negligently performed caesarean. As a result of the rupture, the mother of the plaintiff had to undergo an emergency caesarean section. During the course of delivery, the plaintiff child suffered a period of hypozia, which resulted in a variety of injuries, including brain damage. The court allowed the child to recover damages for his prenatal injuries, not his "wrongful life".

The appellants claim that there would be no tort but for the birth of Dawon Miller. Unlike the plaintiff in Bergstreser, supra, Dawon was born normal and healthy. This court is aware of no other court that has extended the prenatal tort concept to cases where the only claimed injury is the birth of the child, and the court will not do so here.

There are several reasons for declining to recognize the wrongful life tort in this case. First, it would be against public policy to recognize a cause of action which would encourage suits by "all others born into the world under conditions they might regard as adverse." Zepeda v. Zepeda, 41 Ill.App.2d 240, 190 N.E.2d 849, 858 (1963). To recognize the "wrongful life" tort we would be required to find that a child has a right not to be born. Such a conclusion would require the judiciary to possess the divine ability to determine when a life is wrongful.

"Even as a pure question of law, unencumbered by unresolved issues of fact, the weighing of the validity of a cause of action seeking compensation for the wrongful causation of life itself casts an almost Orwellian shadow, premised as it is upon concepts of genetic predicability once foreign to the evolutionary process. It borders on the absurdly obvious to observe that resolution of this question transcends the mechanical application of legal principles. Any such resolution, whatever it may be, must invariably be colored by notions of public policy, the validity of which remains, as always, a matter upon which reasonable men may disagree."

Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 898, 386 N.E.2d 807, 810 (1978).

Second, it is impossible to ascertain damages for a "wrongful life." This court would be required to compare the condition the appellant Dawon Miller would have been in but for the defendants' alleged negligence, against the impaired condition he is in as a result of the alleged negligence. Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689, 692(3) (1967). In effect, the plaintiff would have us measure "the damages for his life against the utter void of nonexistence." White v. United States, 510 F.Supp. 146, 148 (D.Kan.1981).

"Simply put, a cause of action brought on behalf of an infant seeking to recover for wrongful life demands a calculation of damages dependent upon a comparison between the Hobson's choice of life in an impaired state and non-existence. This comparison the law is not equipped to make." Becker v. Schwartz, 413 N.Y.S.2d at 900, 386 N.E.2d at 812.

Third, the appellant child claims an injury "without foundation in law or logic." Aronoff v. Snider, 292 So.2d 418, 419 (Fla.App.1974). Despite the label applied by the appellant, the action in ...