Moores v. Lucas

• Decision Date: 28 October 1981
• Docket Number: Nos. 80-1360,81-117,s. 80-1360
• Citation: 405 So.2d 1022
• Court: Florida District Court of Appeals
• Parties: Daniel L. MOORES and Linda G. Moores, individually and as parents and natural guardians of Justin Daniel Moores, Appellants, v. Charles S. LUCAS, M.D.; Carl J. Brunoehler, M.D.; Raymond Bernstein, M.D.; Charles R. Frans, M.D.; Brunoehler, Franz, Lucas & Bernstein, M.D., P.A.; and Florida Physicians Insurance Reciprocal, Appellees.

Page 1022

405 So.2d 1022

Daniel L. MOORES and Linda G. Moores, individually and as parents and natural guardians of Justin Daniel Moores, Appellants, v. Charles S. LUCAS, M.D.; Carl J. Brunoehler, M.D.; Raymond Bernstein, M.D.; Charles R. Frans, M.D.; Brunoehler, Franz, Lucas & Bernstein, M.D., P.A.; and Florida Physicians Insurance Reciprocal, Appellees.

Nos. 80-1360, 81-117.

District Court of Appeal of Florida, Fifth District.

Oct. 28, 1981.

Rehearing Denied Nov. 23, 1981.

Anne C. Conway of Wells, Gattis, Hollowes, Holbrook & Conway, Orlando, for appellants.

William B. Wilson, of Maguire, Voorhis & Wells, P.A., Orlando, for appellees.

COBB, Judge.

This case raises questions concerning Florida's recognition of causes of action for wrongful life and wrongful birth, and appropriate damages for such actions.

Appellants/plaintiffs Daniel and Linda Moores, as parents and natural guardians of Justin Daniel Moores, filed suit against various defendant physicians specializing in obstetrics and gynecology, their professional association, and their insurance carrier. Their complaint alleged that Linda suffers from a genetic malady known as "Larsen's Syndrome," which has caused her physical problems, mental suffering, and substantial expenses for medical care since birth. Linda and Daniel decided to have a child and sought the medical advice of the defendants as to whether or not Linda's condition was inheritable. If they had been advised that the condition was inheritable, they would have avoided having a child. The complaint further alleged that the defendants had negligently failed to advise the plaintiffs that the condition was inheritable, and consequently Justin was conceived and he was born with Larsen's Syndrome.

The damages which Daniel and Linda Moores sought to recover are: (1) past and future medical expenses for the extraordinary care involved in the treatment of Justin Daniel Moores' physical abnormalities related to Larsen's Syndrome; (2) past and future emotional pain and suffering of the plaintiffs resulting from the birth of their afflicted son; (3) physical pain and suffering and mental anguish of Linda Moores caused by becoming pregnant, carrying to term, and giving birth to her son; and (4) costs of bringing the action.

The appellees/defendants moved to dismiss or strike the claim of Justin Daniel Moores for wrongful life on the ground that such a cause of action was not recognized in Florida. The trial court granted the motion and dismissed the claim for wrongful life with prejudice. Additionally, the defendants moved to dismiss the claim of the parents for wrongful birth or alternatively to strike the damages sought on that claim. The defendants argued that the allegations of the complaint showed that Linda Moores wanted to become pregnant and bear a child; that the pregnancy and delivery in connection with Justin were no more painful or difficult than if he had been normal; that costs of bringing an action are not a recognizable basis for stating a claim; and that there was no basis for the claim to damages for pain, suffering, and mental anguish due to Florida's "impact doctrine." The trial court granted the motion and both dismissed the claim of the parents for wrongful birth and struck the various claims for damages. The case is before this court on the consolidated appeals of those two orders.

I. THE CLAIM OF THE CHILD

The wrongful life cases that have been brought on behalf of children have fallen into three major categories: (1) actions brought by illegitimates; (2) actions brought by unwanted children who were born as the result of a failed sterilization or abortion; and (3) actions brought by a child was was born deformed as a result of a failure to diagnose and/or inform his parents of an inheritable disease.

There is no cause of action for wrongful life by illegitimates: Pinkney v. Pinkney, 198 So.2d 52 (Fla. 1st DCA 1967), overruled on other grounds, Brown v. Brown, 300 So.2d 668 (Fla.1974); Stills v. Gratton, 55 Cal.App.3d 698, 127 Cal.Rptr. 652 (1976); Zepeda v. Zepeda, 41 Ill.App.2d 240, 190 N.E.2d 849 (1963), cert. denied, 379 U.S. 945, 85 S.Ct. 444, 13 L.Ed.2d 545 (1964); Williams v. State, 18 N.Y.2d 481, 276 N.Y.S.2d 885, 223 N.E.2d 343 (1966); Slawek v. Stroh, 62 Wis.2d 295, 215 N.W.2d 9 (1974).

It has also been held that there is no cause of action for wrongful life by an unwanted healthy child born as the result of a failed sterilization or abortion: Coleman v. Garrison, 349 A.2d 8 (Del.1975); Sala v. Tomlinson, 73 App.Div.2d 724, 422 N.Y.S.2d 506 (1979); Clegg v. Chase, 89 Misc.2d 510, 391 N.Y.S.2d 966 (1977). Nor is there a cause of action for wrongful life by an unwanted deformed child born as the result of a failed sterilization or abortion: LaPoint v. Shirley, 409 F.Supp. 118 (W.D. Tex. 1976); Elliott v. Brown, 361 So.2d 546 (Ala.1978); Stribling v. DeQuevedo, --- Pa.Super. ---, 432 A.2d 239 (1980).

The following cases have held there is no cause of action for wrongful life by a deformed child born as the result of the failure to diagnose and/or inform his parents regarding an inheritable disease: Gildiner v. Thomas Jefferson University Hospital, 451 F.Supp. 692 (E.D.Pa. 1978); Smith v. United States, 392 F.Supp. 654 (N.D.Ohio 1975); Berman v. Allen, 80 N.J. 421, 404 A.2d 8 (1979); Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689, 22 A.L.R.3d 1411 (1967), overruled on other grounds, Berman v. Allen, 80 N.J. 421, 404 A.2d 8 (1979); Becker v. Schwartz/Park v. Chessin, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978); Karlsons v. Guerinot, 57 App.Div.2d 73, 394 N.Y.S.2d 933 (1977); Speck v. Finegold, 268 Pa.Super. 342, 408 A.2d 496 (1979); Stewart v. Long Island College Hospital, 35 App.Div.2d 531, 313 N.Y.S.2d 502 (1970), affirmed, 30 N.Y.2d 695, 332 N.Y.S.2d 640, 283 N.E.2d 616 (1972); Speck v. Finegold, 268 Pa.Super. 342, 408 A.2d 496 (1979); Dumer v. St. Michael's Hospital, 69 Wis.2d 766, 233 N.W.2d 372, 83 A.L.R.3d 1 (1975). Only one case has been cited to us by appellants which lends support to the novel theory underlying an action for wrongful life by a deformed child born as the result of the failure to diagnose and/or warn his parents of an inheritable disease: Curlender v. Bio-Science Laboratories, 106 Cal.App.3d 811, 165 Cal.Rptr. 477 (1980).

We are invited by the appellants, in support of such an action, to pass beyond the horizon of the known world of law, however imperfect it may be, into a labyrinth of imponderabilities. We concur with the analysis of the Pennsylvania court in Speck v. Finegold, which wrote:

In the instant case, we deny Francine's claim to be made whole. When we examine Francine's claim, we find regardless of whether her claim is based on "wrongful life" or otherwise, there is a failure to state a legally cognizable cause of action even though, admittedly, the defendants' actions of negligence were the proximate cause of her defective birth. Her claims to be whole have two fatal weaknesses. First, there is no precedent in appellate judicial pronouncements that holds a child has a fundamental right to be born as a whole, functional human being. Whether it is better to have never been born at all rather than to have been born with serious mental defects is a mystery more properly left to the philosophers and theologians, a mystery which would lead us into the field of metaphysics, beyond the realm of our understanding or ability to solve. The law cannot assert a knowledge which can resolve this inscrutable and enigmatic issue. Second, it is not a matter of taking into consideration the various and convoluted degrees of the imperfection of life. It is rather the improbability of placing the child in a position she would have occupied if the defendants had not been negligent when to do so would make her nonexistent. The remedy afforded an injured party in negligence is intended to place the injured party in the position he would have occupied but for the negligence of the defendant. Thus, a cause of action brought on behalf of an infant seeking recovery for a "wrongful life" on grounds she should not have been born demands a calculation of damages dependent on a comparison between Hobson's choice of life in an impaired state and non-existence. This the law is incapable of doing.

Finally, we hold that the impossibility of this suit as to Francine comes not so much from the difficulty in measuring the alleged damages as from the fact, unfortunately, that this is not an action cognizable in law. Thus, the recognized principle, not peculiar to traditional tort law alone, that it would be a denial of justice to deny all relief where a wrong is of such a nature as to preclude certain ascertained damages, is inapposite and inapplicable here. Accordingly, plaintiffs' complaint insofar as Francine's claim for damages for "wrongful life" is concerned, does not present a legally cognizable action at law.

408 A.2d at 508.

We, therefore, affirm the trial court's action in dismissing with prejudice the claim by Justin Moores for "wrongful life."

II. THE CLAIM...