Ochs v. Borrelli

• Court: Connecticut Supreme Court
• Writing for the Court: PETERS
• Citation: Ochs v. Borrelli, 187 Conn. 253, 445 A.2d 883 (Conn. 1982)
• Decision Date: 01 June 1982
• Parties: Carol OCHS et al. v. Anthony P. BORRELLI et al.

Page 883

445 A.2d 883

187 Conn. 253

Carol OCHS et al. v. Anthony P. BORRELLI et al.

Supreme Court of Connecticut.

Argued March 12, 1982.

Decided June 1, 1982.

Edward J. Holahan, Jr., Bridgeport, for appellants (defendants).

Richard A. Silver, Stamford, with whom were Stanley A. Twardy, Jr., and, on the brief, Patricia M. Haugh, Stamford, for appellees (plaintiffs).

Before PETERS, HEALEY, PARSKEY, ARMENTANO and SHEA, JJ.

PETERS, Associate Justice.

The principal issue in this case of first impression in Connecticut is whether the parents of a child conceived after an unsuccessful sterilization procedure may be compensated for the costs of rearing that child when the physician who performed the procedure is found to be negligent. The plaintiffs, Carol and William Henry Ochs III, brought suit against the defendants, physician Anthony P. Borrelli and his professional corporation, following the birth of their daughter, Catherine, with a mild orthopedic defect. After a jury found for the plaintiffs and awarded damages, the defendants, conceding negligence, appealed the question of damages to this court.

The underlying facts of this case are not disputed. In July 1973, the plaintiff Carol Ochs arranged for the individual defendant, a licensed physician and surgeon, to perform a sterilization procedure known as a laparoscopic tubal ligation. At this time the plaintiff had two children, both born with orthopedic defects, and a gynecological history of miscarriage and ovarian surgery. Following the laparoscopic sterilization the plaintiff conceived a third child, Catherine Jean Ochs, who was born on February 1, 1975 with a more severe version of her siblings' orthopedic problem. ¹ The plaintiff subsequently underwent a second, successful sterilization procedure.

In the first count of her complaint, the plaintiff sought damages for her own medical expenses and pain and suffering occasioned by the failed sterilization. In the second count, the plaintiff and her husband sought damages for medical care necessitated by Catherine's orthopedic disability and for the costs of raising Catherine to her majority. The jury awarded the plaintiffs $49,985 in damages on the first count and $56,375 on the second count.

The defendants' appeal, admitting negligence, is limited to the question of the proper measurement of damages. With respect to the first count, the plaintiff's own damages, the defendants claim that the award is excessive in amount. With respect to the second count, seeking damages for costs incurred and to be incurred by the plaintiff and her husband in caring for Catherine, the defendants concede their responsibility to provide compensation for Catherine's orthopedic expenses ² but deny the propriety of an award for child-rearing expenses. Because of their relative importance, we will consider these claims in reverse order and thus address first the arguments arising out of the second count.

I

In reviewing the issues raised by the plaintiffs' second count, we must first identify the way in which these issues are framed by the context of this case. The defendants do not deny that the plaintiffs have proven a cause of action for the wrongful conception of Catherine, for they have now conceded both their negligence and their liability to pay Catherine's orthopedic expenses. They maintain, however, that a cause of action for wrongful conception may not encompass a claim for recovery of ordinary child-rearing expenses. The linchpin of this argument is the defendants' assertion that public policy requires us to hold that the birth of a child is always a blessing to its parents and that this benefit must, as a matter of law, totally offset concomitant financial burdens. The trial court rejected this argument in its instructions to the jury, ³ and so do we.

This court has not, before today, had the opportunity to determine the boundaries of a cause of action for wrongful conception. The question has, however, arisen with some frequency in other jurisdictions since the landmark decision in Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463 (1967). Courts have responded by staking out a broad range of positions from rejection of any damages for the birth of a healthy child following a failed sterilization procedure; see, e.g., Wilbur v. Kerr, --- Ark. ---, 628 S.W.2d 568, 571 (1982); Coleman v. Garrison, 349 A.2d 8, 12 (Del. 1975); Wilczynski v. Goodman, 73 Ill.App.3d 51, 62, 29 Ill.Dec. 216, 391 N.E.2d 479 (1979); Rieck v. Medical Protective Co., 64 Wis.2d 514, 518-19, 219 N.W.2d 242 (1974); to allowance of child-rearing expenses for the negligent birth of an unplanned child. See, e.g., Custodio v. Bauer, supra, 251 Cal.App.2d 323-25, 59 Cal.Rptr. 463; Cockrum v. Baumgartner, 99 Ill.App.3d 271, 54 Ill.Dec. 751, 425 N.E.2d 968, 970 (1981); Troppi v. Scarf, 31 Mich.App. 240, 251, 187 N.W.2d 511 (1971); Sherlock v. Stillwater Clinic, 260 N.W.2d 169, 175-76 (Minn.1977); Mason v. Western Pennsylvania Hospital, 286 Pa.Super. 354, 428 [187 Conn. 258] A.2d 1366, 1370 (1981). See generally "Wrongful Birth: A Child of Tort Comes of Age," 50 Cin.L.Rev. 65 (1981); "Wrongful Conception: Who Pays for Bringing Up Baby?" 47 Fordham L.Rev. 418 (1978); Kashi, "The Case of the Unwanted Blessing: Wrongful Life," 31 Univ. of Miami L.Rev. 1409 (1977); "Liability for Failure of Birth Control Methods," 76 Colum.L.Rev. 1187 (1976).

In our view, the better rule is to allow parents to recover for the expenses of rearing an unplanned child to majority when the child's birth results from negligent medical care. The defendants ask us to carve out an exception, grounded in public policy, to the normal duty of a tortfeasor to assume liability for all the damages that he has proximately caused. See, e.g., United Aircraft Corporation v. International Assn. of Machinists, 161 Conn. 79, 103, 285 A.2d 330 (1971); Mourison v. Hansen, 128 Conn. 62, 65, 20 A.2d 84 (1941); 4 Restatement (Second), Torts (1979) § 902. But public policy cannot support an exception to tort liability when the impact of such an exception would impair the exercise of a constitutionally protected right. It is now clearly established that parents have a constitutionally protected interest located "within the zone of privacy created by several fundamental constitutional guarantees," Griswold v. Connecticut, 381 U.S. 479, 485, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 (1965); Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 726, 35 L.Ed.2d 147, reh. denied, 410 U.S. 959, 93 S.Ct. 1409, 35 L.Ed.2d 694 (1973); to employ contraceptive techniques to limit the size of their family. The defendants' general argument of public policy is therefore unpersuasive. Troppi v. Scarf, supra, 187 N.W.2d at 517.

The defendants offer two further objections to their liability for the normal care of the plaintiffs' unplanned child. They insist, first, that to allow a recovery of damages would erroneously equate the birth of a child with an injury to its parents and, second, that the damages awarded here are too speculative to be permitted. We reject these specific objections as well.

The defendants' initial argument founders on its premise that a recognition of the economic costs of parenthood is necessarily a negative judgment on the child who occasions them. We may take judicial notice of the fact that raising a child from birth to maturity is a costly enterprise, and hence injurious, although it is an experience that abundantly recompenses most parents with intangible rewards. There can be no affront to public policy in our recognition of these costs and no inconsistency in our view that parental pleasure softens but does not eradicate economic reality. The plaintiffs' testimony at trial confirming their love for Catherine should not become a reason for denying them financial relief.

It bears emphasis, furthermore, that the trial court did not impose upon the defendants the total burden of the economic costs of the plaintiffs' parenthood. The trial court, with the plaintiffs' concurrence, instructed the jury to reduce potentially recoverable child-rearing expenses "by the value of the benefits conferred on the parents by having and raising the child. Such benefits may be the satisfaction, the fun, the joy, the companionship, and the like, which the plaintiff[s] as parents have had and will have in the rearing of the child and which make economic expenses worthwhile." In effect, rather than invoking a per se rule that benefits always outweigh costs, or costs always outweigh benefits, the court adopted the case-by-case balancing test of the Restatement (Second) of Torts. That rule provides that "[w]hen the defendant's tortious conduct has caused harm to the plaintiff or to his property and in so doing has conferred a special benefit to the interest of the plaintiff that was harmed, the value of the benefit conferred is considered in mitigation of damages, to the extent that this is equitable." 4 Restatement (Second), Torts (1979) § 920. See Sherlock v. Stillwater Clinic...