Norwest v. Presbyterian Intercommunity Hospital

• Decision Date: 22 June 1981
• Docket Number: No. 80-374L,80-374L
• Citation: 52 Or.App. 853,631 P.2d 1377
• Parties: Vernon NORWEST, by and through his Guardian, Marion Crain, Appellant, v. PRESBYTERIAN INTERCOMMUNITY HOSPITAL, an Oregon Corporation, and Kenneth Tuttle, M.D., Respondents. ; CA 17847.
• Court: Oregon Court of Appeals

Page 1377

631 P.2d 1377

52 Or.App. 853

Vernon NORWEST, by and through his Guardian, Marion Crain, Appellant, v. PRESBYTERIAN INTERCOMMUNITY HOSPITAL, an Oregon Corporation and Kenneth Tuttle, M.D., Respondents.

No. 80-374L; CA 17847.

Court of Appeals of Oregon, In Banc.

Argued and Submitted Dec. 10, 1980.

Resubmitted In Banc June 9, 1981.

Decided June 22, 1981.

Richard P. Noble, Portland, argued the cause for appellant. With him on the briefs was Kathryn H. Clarke, Portland.

Stanley C. Jones, Klamath Falls, argued the cause for respondent Presbyterian Intercommunity Hospital. With him on the brief was Giacomini, Jones & Associates, Klamath Falls.

William L. Hallmark, Portland, argued the cause for respondent Kenneth Tuttle, M.D. With him on the brief were Lang Klein, Wolf, Smith, Griffith & Hallmark, and Margaret H. Leek Leiberan, Portland.

GILLETTE, Judge.

Plaintiff, a minor child, seeks recovery for the loss of his mother's society, companionship, support and education as a result of defendants' negligent treatment which resulted in permanent brain damage to the mother. Defendants moved to dismiss, based upon the theory that there is no cause of action in Oregon for loss of "parental consortium." Plaintiff appeals from the resulting order of the trial court dismissing his complaint for failure to state ultimate facts sufficient to constitute a claim. We affirm.

Plaintiff's complaint alleges that he is the son of Shirlene Norwest, who underwent surgery for removal of her gall bladder at defendant hospital under the surgical care of the defendant doctor. It alleges that defendants were negligent in failing to discover or treat a condition of hypocalcemia which developed in Shirlene Norwest and which resulted in severe brain damage requiring a lifetime of custodial care. Plaintiff further alleges that he has been deprived of his mother's society, companionship, support and education and has incurred an obligation to support his mother after her own funds are exhausted. He alleges further that defendant hospital is estopped to deny its negligence because a judgment already entered in favor of Shirlene Norwest in an action brought on her behalf has determined the hospital's negligence.

We are called upon to decide if a child may recover damages from a third party whose negligence results in serious injury to a parent and thereby seriously interferes with the parent-child relationship. The courts of this state have never had occasion to consider whether a child has a cause of action for this loss of parental society, or what has been termed "parental consortium." However, the question here is not one of authority. There can be no doubt that this court has the authority to recognize previously unrecognized rights of recovery or new forms of injury. See, e. g., Oksenholt v. Lederle Laboratories, 51 Or.App. 419, 625 P.2d 1357 (1981); Campbell v. Carpenter, 279 Or. 237, 566 P.2d 893 (1977) (tavern owner may be liable in negligence for actions caused to third party injured by intoxicated customer); Hinish v. Meier and Frank, 166 Or. 482, 113 P.2d 438 (1941), (action for invasion of privacy); Cowgill v. Boock, 189 Or. 282, 218 P.2d 445 (1950) (minor child may sue parent for wilful or malicious tort); Apitz v. Dames, 205 Or. 242, 287 P.2d 585 (1955) (wife has action against husband for intentional injuries). The question, rather, is one of judicial policy. For the reasons that follow, we conclude that an action for loss of parental consortium will not lie.

The history of the legal recognition of the importance of family relationships and the protection of those relationships has, in Oregon at least, primarily been a history of legislative, not judicial, change. Initially, at common law, there existed only the action per quod consortium in the husband; the wife, having little more legal status than a chattel, had no such right of action. Oregon generally abolished women's legal disabilities (with the interesting exceptions of the right to vote and the right to hold office) by the Married Women's Act of 1880, Or. Laws 1880, § 1, which provided,

"All laws which impose or recognize civil disabilities upon a wife which are not imposed or recognized as existing as to the husband are hereby repealed: Provided, that this act shall not confer the right to vote or hold office upon the wife, except as is otherwise provided by law; and for any unjust usurpation of her property or natural rights she shall have the same right to appeal in her own name alone to the courts of law or equity for redress that the husband has."

Even then, however, and in spite of the recognition of the right of a husband to maintain an action for loss of consortium as recognized in Elling v. Blake-McFall Co., 85 Or. 91, 166 P. 57 (1917), the Oregon courts consistently declined to expand the common law to recognize a similar right in the wife. Kosciolek v. Portland Ry. L. & P. Co., 81 Or. 517, 160 P. 132 (1916); Sheard v. Oregon Electric Ry. Co., 137 Or. 341, 2 P.2d 916 (1931). Finally, the rule was changed legislatively in 1941, when the Married Women's Act was amended to read,

"All laws which impose or recognize civil disabilities upon a wife which are not imposed or recognized as existing as to the husband hereby are repealed, and all civil rights belonging to the husband not heretofore conferred upon the wife, or which she does not have at common law, hereby are conferred upon her, including, among other things, the right of action for loss of consortium of her husband; and for any unjust usurpation of her property or natural or civil rights she shall have the same right to appeal in her own name alone to the courts of law or equity for redress that the husband has." Oregon Laws 1941, ch. 228, p. 356.

As was true with respect to the development of a wife's right to bring an action for loss of consortium, legislative action was necessary to establish a right of a mother (as opposed to the father) to bring an action for an injury to her child. See ORS 30.010. And, as was true for the parent, so legislative development has been the key to the availability of actions for the benefit of the child.

In Oregon, the significance to the child of the parent-child relationship has been recognized in the fact that children now have a cause of action for wrongful death of a parent. ORS 30.020. ¹ There are, however, significant limits to the child's separate rights, and these limits are the product of judicial, not legislative, decision making. For example, the Supreme Court, in Burnette v. Wahl, 284 Or. 705, 588 P.2d 1105 (1978), disallowed a tort action by a child against its mother for damage incurred because of the failure of the mother to provide parental care, nurturance and companionship. The court, in refusing to allow the action, noted, "the legislature recognizing the necessity of parental nurture, support and physical care for children, has enacted a vast array of laws for the purpose of protecting or vindicating those rights. * * * " Id., at 709, 588 P.2d 1105. The court went on to say,

" * * * (T)he statutory enactments demonstrate that the legislature has put its mind to the deprivations of which plaintiff children are alleged to be victims and has attempted to remedy such situations by enacting a vast panoply of procedures, both civil and criminal, to ensure that children receive proper nurturing, support and physical care. It has never undertaken to establish, however, a cause of action for damages for any emotional injury to the child which may have been caused by a parent's refusal to provide these services. This failure of the legislature to act is significant because this is not a field of recovery which has heretofore been recognized by courts, and it would therefore be natural for it to have provided such a remedy if it thought it was wise in view of the social problem it attempts to solve and the statutory provisions it has enacted for that purpose. * * * " Id., at 710, 588 P.2d 1105.

The court further noted,

" * * * (C)ourts must look carefully not only at the particular statute establishing the right or duty but at all statutes which might bear either directly or indirectly on the legislative purpose. If there is any chance that invasion into the field by the court's establishment of a civil cause of action might interfere with the total legislative scheme, courts should err on the side of non-intrusion because it is always possible for the legislature to establish such a civil cause of action if it desires. Courts have no omnipotence in the field of planning, particularly social planning of the kind involved here. Courts should exercise restraint in fields in which the legislature has attempted fairly comprehensive social regulations." Id., at 712, 588 P.2d 1105.

Even a prominent decision recognizing a certain cause of action in a child also recognized the role of the legislature in establishing the basis for that judicially recognized right. In allowing an action by a child for injuries received before birth, the Supreme Court in Mallison v. Pomeroy, 205 Or. 690, 696, 291 P.2d 225 (1955), quoted with approval:

" 'Negligence law is common law, and the common law has been molded and changed and brought up-to-date in many another case.' " (Citing Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691, 27 A.L.R.2d 1250 (1951)).

The court then went on to note, however, that the legislature had recognized the unborn child as a separate entity by providing protection for the child's property rights and against criminal conduct directed at the unborn child. In view of that legislative foundation, the court concluded that there was no logical reason that the unborn child should not also be protected against injury by tort. Id., 102 N.E.2d at 696-697.

The foregoing statutory and decisional history establishes two points: (1) the general availability of a right of action for loss of consortium or the loss of companionship ...