Miller v. Johnson

• Decision Date: 25 April 1986
• Docket Number: 841536,Nos. 822020,s. 822020
• Citation: Miller v. Johnson, 231 Va. 177, 343 S.E.2d 301 (1986)
• Parties: Donald MILLER, M.D. v. Laura JOHNSON. FUNG MAI HWANG v. Gerald J. RUTH, M.D., et al. Record
• Court: Virginia Supreme Court

Page 301

343 S.E.2d 301

231 Va. 177

Donald MILLER, M.D. v.Laura JOHNSON.

FUNG MAI HWANG v.Gerald J. RUTH, M.D., et al.

Record Nos. 822020, 841536.

Supreme Court of Virginia.

April 25, 1986.

Robert A. Rapaport(H.H. Hunter Clarke, Harlan, Knight, Dudley & Pincus, Norfolk, on briefs), for appellant Miller.

William L. Perkins, III(Michael Wayne Price, Price & Perkins, Norfolk, on brief), for appellee Johnson.

John B. Spiers, Jr.(Spiers & Spiers, Radford, on brief), for appellant hwang.

L. Thompson Hanes(George W. Wooten, Woodward, Fox, Wooten & Hart, P.C., Roanoke, on brief), for appellees Ruth, et al.

Present: All the Justices.

COCHRAN, Justice.

The appeal in each of these cases arises from an action by a mother against a physician for damages from what has been characterized as "wrongful pregnancy."In each case, the mother sought an abortion, the abortion failed, and subsequently a child was born.In each case, the mother sought to recover damages related to the unsuccessful abortion, the continuing pregnancy, and the childbirth and, in addition, the costs of rearing the child to majority.

In one case, the trial court entered judgment on the jury verdict awarding damages under an instruction permitting consideration of all these elements.In the other case, the trial court sustained a demurrer to the motion for judgment on the ground that no such action could be maintained.The appeals, therefore, coming from opposite results in the respective trial courts, present the question whether a cause of action for wrongful pregnancy is maintainable in Virginia and, if so, the damages recoverable in such an action.

LAURA JOHNSON

For economic reasons, Laura Johnson--mother of four children, the oldest physically handicapped--and her husband sought to avoid having any more children.She consulted Dr. Donald Miller, an obstetrician and gynecologist, who agreed to perform a tubal ligation.Because she was then being treated for a vision problem with a drug which might cause complications, Miller delayed the sterilization operation.In September 1979, Johnson learned she was pregnant and asked Miller to perform an abortion and the sterilization procedure.In October, he performed a bilaterial tubal ligation and attempted to perform a suction abortion.Miller noticed nothing unusual about her condition when he examined her a week later.A pathology report on the material removed during the attempted abortion, which showed the abortion was not successfully completed, was sent to Miller's office and filed without first being reviewed by a physician in his office.In November, Johnson telephoned Miller complaining of nausea and, upon examination, she was found still to be pregnant.

Johnson was advised by both Miller and a second doctor that neither could perform a suction abortion at this stage of her pregnancy.The second doctor testified he presented Johnson with the options of going elsewhere for a suction abortion, having a more dangerous saline abortion, or continuing the pregnancy.Johnson denied that he told her that a second suction abortion was still possible.Johnson decided to continue the pregnancy and gave birth in May 1980 to a healthy, normal boy.She and her husband did not consider placing the child for adoption.

In December 1980, Johnson filed suit against Miller, alleging that his negligence resulted in the wrongful birth of her son.A jury heard the case and was instructed that, upon a finding of negligence, it could award damages for Johnson's past and future pain and suffering, inconvenience, and medical expenses, her past loss of wages related to the pregnancy and birth, and the reasonable costs of rearing the child to the age of 18 years.The jury awarded Johnson $100,000, and the trial court entered judgment on this verdict.On appeal, Miller challenges only the allowance of damages for the costs of rearing the child to majority.

FUNG MAI HWANG

Fung Mai Hwang and Yuh Chin Hwang, her husband, brought an action against Gerald J. Ruth, M.D., and Gerald J. Ruth, M.D., P.C., a professional corporation of which Gerald J. Ruth, M.D., was an employee, alleging, inter alia, that Ruth's negligent attempt to perform an abortion on Fung Mai Hwang was unsuccessful and resulted in the birth of her child.She sought damages for her lost wages, pain and suffering, expenses of pregnancy and childbirth, and the costs of rearing the child to majority.Yuh Chin Hwang also sought damages.The Hwangs did not allege that the child was healthy, nor did they allege to the contrary.Defendants filed a motion to dismiss and a demurrer based on several grounds, one of which was that the law does not recognize a cause of action for the "alleged wrongful birth of a healthy child."On Yuh Chin Hwang's motion, he was nonsuited as a partyplaintiff.

The trial court sustained the demurrer and dismissed the action with prejudice, concluding that public policy prohibits recovery of damages for the birth of a healthy child.On appeal, Fung Mai Hwang challenges this ruling and, in addition, contends that the trial court erred in dismissing her action in which she also sought damages for negligence in performing an abortion, failure to obtain informed consent to a medical procedure, failure to provide proper post-treatment care, and failure to perform the abortion properly and terminate the pregnancy as agreed.

THE LAW

Some confusion has existed in the terminology applied to the relatively new field of tort law involving actions in which negligence is alleged to have resulted in the birth of a child.The terms "wrongful birth,""wrongful life,""wrongful pregnancy," and "wrongful conception" have gained recent acceptance and distinguish the various birth-related tort actions.

A wrongful birth action is brought by parents on their own behalf, seeking damages resulting from the birth of a defective child after a failed abortion or the failure of a physician to advise the parents of risk of genetic or birth defects and thereby allow an informed decision as to termination of the pregnancy.SeeNaccash v. Burger, 223 Va. 406, 409, 290 S.E.2d 825, 826-27(1982)(action for wrongful birth of child afflicted with Tay-Sachs disease).

A wrongful life action is a similar action brought by or on behalf of the defective child for the physician's failure to warn of potential defects or failure to prevent or terminate the pregnancy in light of known risks.Most courts have rejected this theory that the life of the defective child is worth less than the child's nonexistence.See, e.g., Elliott v. Brown, 361 So.2d 546, 548(Ala.1978);Blake v. Cruz, 108 Idaho 253, 259-60, 698 P.2d 315, 322(1984);Becker v. Schwartz, 46 N.Y.2d 401, 412, 386 N.E.2d 807, 812, 413 N.Y.S.2d 895, (1978);Azzolino v. Dingfelder, 315 N.C. 103, 110, 337 S.E.2d 528, 533(1985);Nelson v. Krusen, 678 S.W.2d 918, 925(Tex.1984);Dumer v. St. Michael's Hospital, 69 Wis.2d 766, 773, 233 N.W.2d 372, 375-76(1975);Beardsley v. Wierdsma, 650 P.2d 288, 292(Wyo.1982).Those few courts allowing wrongful life claims have limited the damages recoverable to the extraordinary expenses attributable to the child's impaired condition.See, e.g., Turpin v. Sortini, 31 Cal.3d 220, 237, 643 P.2d 954, 965, 182 Cal.Rptr. 337, 348(1982);Procanik v. Cillo, 97 N.J. 339, 352, 478 A.2d 755, 762(1984);Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 475, 656 P.2d 483, 496-97(1983).

Wrongful conception and wrongful pregnancy actions are suits by parents for damages arising from the negligent performance of a sterilization procedure or an abortion and the subsequent birth of a child.SeeBoone v. Mullendore, 416 So.2d 718, 720(Ala.1982);University of Ariz. v. Superior Court, 136 Ariz. 579, 581 n. 1, 667 P.2d 1294, 1296 n. 1(1983);Garrison v. Foy, Ind.App., 486 N.E.2d 5, 7(1985);Nanke v. Napier, 346 N.W.2d 520, 521(Iowa1984);Kingsbury v. Smith, 122 N.H. 237, 240, 442 A.2d 1003, 1004(1982).These actions most frequently have involved normal, healthy children, although they may involve children with a disease or abnormality where the disease or abnormality was not foreseeable and its prevention was not the purpose of the failed abortion or sterilization procedure.See, e.g., Garrison, Ind.App., 486 N.E.2d at 7;see alsoBoone, 416 So.2d at 723(court expressly restricted holding in wrongful pregnancy case, reserving decision on the measure of damages in cases involving children "born and afflicted with predetermined or readily foreseeable genetic or hereditary defects ").

The trial court in Hwang(RecordNo. 841536) relied on dicta in McNeal v. United States, 689 F.2d 1200, 1202(4th Cir.1982), predicting that Virginia would not permit recovery of damages for wrongful pregnancy as a matter of public policy.Such reliance is misplaced.

We have held that whether a cause of action exists for wrongful birth, where the child is fatally defective, is a question to be determined in accordance with traditional tort principles.Naccash, 223 Va. at 413, 290 S.E.2d at 829.Holding such an action exists, we approved damages for the extraordinary care and treatment of the fatally defective child during the 31 months of her life.Id. at 414, 290 S.E.2d at 829-30.We reaffirm the inclusion of the expenses of such care and treatment as allowable damages in a wrongful birth case.We see no reason not to apply traditional tort principles to determine whether a cause of action exists for wrongful pregnancy or wrongful conception, where the child is reasonably healthy, both physically and mentally.

Within specified limits a woman is entitled to have an abortion if she so chooses.SeeRoe v. Wade, 410 U.S. 113, 153-54, 93 S.Ct. 705, 726-27, 35 L.Ed.2d 147(1973);Code§§ 18.2-71 to -76.2.Individuals are likewise free to practice contraception to further their constitutionally-protected choice not to have children.SeeEisenstadt v. Baird, 405 U.S. 438, 453-54, 92 S.Ct. 1029,...