Payne By and Through Payne v. Myers

• Decision Date: 18 August 1987
• Docket Number: No. 19218,19218
• Citation: 743 P.2d 186
• Parties: Michael Patrick PAYNE, By and Through his Guardian ad Litem, John Michael PAYNE; John Michael Payne; and Stephanie Payne, Plaintiffs and Appellants, v. Garth G. MYERS, M.D.; Joseph P. Kesler, M.D.; the State of Utah and Handicapped Children's Service; and the Division of Health of the State of Utah, Defendants and Respondents.
• Court: Utah Supreme Court

Page 186

743 P.2d 186

Michael Patrick PAYNE, By and Through his Guardian ad Litem John Michael PAYNE; John Michael Payne; and Stephanie Payne, Plaintiffs and Appellants, v. Garth G. MYERS, M.D.; Joseph P. Kesler, M.D.; the State of Utah and Handicapped Children's Service; and the Division of Health of the State of Utah Defendants and Respondents.

No. 19218.

Supreme Court of Utah.

Aug. 18, 1987.

Stuart H. Schultz, R. Scott Williams, Salt Lake City, for plaintiffs and appellants.

Arthur H. Nielsen, William C. Quigley, Gary B. Ferguson, Gary D. Stott, Salt Lake City, for Garth G. Myers, M.D. Francis J. Carney, Stewart M. Hanson, Jr., Stephen J. Sorenson, Salt Lake City, for Joseph P. Kesler, M.D.

Craig L. Barlow, David L. Wilkinson, Salt Lake City, for the State of Utah.

HOWE, Justice:

Plaintiffs John M. Payne and Stephanie Payne (hereinafter "parents") brought this medical malpractice action seeking damages for "wrongful birth" ¹ against Drs. Garth G. Myers and Joseph P. Kesler ("doctors") and their employer, the State of Utah Handicapped Children's Service, and the Division of Health of the State of Utah ("State defendants"). John M. Payne on behalf of Michael P. Payne ("minor plaintiff") joined in the action against the doctors and the State defendants, seeking damages for "wrongful life." ²

FACTS

In 1975, the parents gave birth to their first child, Matthew. Shortly thereafter, he began exhibiting signs of an undiagnosed neurological disorder. From November 1976 through the fall of 1977, he was examined and treated by the doctors at the Handicapped Children's Service, an agency of the Utah State Department of Health. The parents allege that the doctors negligently failed to diagnose Matthew's affliction as Pelizaeus-Merzbacher Syndrome, a rare, genetically transmitted, and progressively degenerative neurological disorder that is characterized by widespread demyelination of the brain sheath, causing severe motor disorders and eventually death. The parents further allege that sometime during the fall of 1977, the doctors advised them that they could safely have another child and that they need not worry that the affliction would recur. They assert that had they been advised that a second child would be at risk of being born with the same defect which impaired their first child, they would not have taken that risk.

The parents contend that in reliance on this advice, Stephanie Payne had her obstetrician remove her intrauterine birth control device (IUD) on February 14, 1978, so that she could conceive a second child. On January 27, 1979, she gave birth to Michael, who soon developed signs of the same neurological impairments as his brother, Matthew. A few months after Michael's birth, both children were diagnosed by another physician as having Pelizaeus-Merzbacher Syndrome. Thereafter, the parents and minor plaintiff brought this action against the doctors and the State defendants.

The district court entered summary judgment in favor of the State defendants as to the parents' claim on the ground that they had failed to file a notice of claim against the State within one year as required by Utah Code Ann. § 63-30-12 (1986). The court, however, denied summary judgment in favor of the State defendants as to the minor plaintiff's claim. The court also awarded summary judgment in favor of the doctors as to all claims by all plaintiffs on the ground that a 1978 amendment to Utah Code Ann. § 63-30-4 granted immunity to them for their simple negligence in the performance of their duties as state employees. The district court certified its summary judgment in favor of the doctors and against the parents as final pursuant to Rule 54(b) of the Utah Rules of Civil Procedure to allow the parents to appeal. Their sole contention on appeal is that the 1978 amendment should not bar their suit for wrongful birth against the doctors.

I.

When reviewing the grant of a motion for summary judgment, the facts are to be liberally construed in favor of the parties opposing the motion, and those parties are to be given the benefit of all inferences which might reasonably be drawn from the evidence. See Durham v. Margetts, 571 P.2d 1332, 1334 (Utah 1977). Summary judgment is proper only when the defendants are entitled to it as a matter of law on the undisputed facts. Barlow Society v. Commercial Security Bank, 723 P.2d 398 (Utah 1986). In this case, the district court awarded summary judgment in favor of the doctors solely on the immunity provided by the 1978 amendment to Utah Code Ann. § 63-30-4. That section, as amended in 1978, provides in pertinent part: ³

The remedy against a governmental entity or its employee for an injury caused by an act or omission which occurs during the performance of such employee's duties ... is, after the effective date of this act, exclusive of any other civil action or proceeding by reason of the same subject matter against the employee or the estate of the employee whose act or omission gave rise to the claim, unless the employee acted or failed to act through gross negligence, fraud, or malice.

An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee shall be held personally liable for acts or omissions occurring during the performance of the employee's duties ... unless it is established that the employee acted or failed to act due to gross negligence, fraud or malice.

(Emphasis added.) Prior to the 1978 amendment, the doctors as governmental employees had no immunity from suit for their simple negligence. The amended statute became effective on March 30, 1978, after the alleged negligent advice had been given by the doctors in the fall of 1977 and after Stephanie Payne's IUD was removed in February 1978, but some ten months before Michael was born.

The parents contend that they are not subject to the 1978 amendment because their cause of action accrued at the time they received and relied upon the negligent advice of the doctors in 1977 and that the legislature could not thereafter constitutionally impair their vested right to that cause of action. The doctors, on the other hand, argue that the causes of action of the parents, if indeed they have one at all, did not accrue until the birth of Michael or, at the very earliest, at the time he was conceived. Both of those events postdated the effective date of the amendment.

Generally, at common law, one who suffers injury to his person or property because of the negligence of another has a right of action in tort. 65A C.J.S. Negligence § 175, at 305 (1966). Under traditional tort analysis, the plaintiff must establish the existence of a duty, the breach of which proximately causes injury to the plaintiff. In an action for wrongful birth, ⁴ the plaintiff has the burden of establishing these same elements.

Assuming, but not deciding, that Utah jurisprudence should recognize an action for wrongful birth, ⁵ it is necessary to determine precisely when the parents' cause of action accrued.

The word "accrue" in connection with the accruing of a cause of action means becoming complete so that the aggrieved [parties] can begin and prosecute [their] action.... The true test is to ascertain the time when the plaintiff[s] could first have maintained [their] action to a successful result. A cause of action accrues when the person in whose favor it arises is first entitled to institute a judicial proceeding for the enforcement of his rights.

1 Am.Jur.2d Actions § 88 (1962). In traditional negligence cases, a cause of action accrues when all the elements necessary to maintenance of a lawsuit are present; the time of occurrence of the last of those elements is made the critical point of initial inquiry. Hunter v. Knight, Vale & Gregory, 18 Wash.App. 640, 571 P.2d 212 (1977).

In this case, we have four possibilities as to when the parents' cause of action accrued: (1) at the time they received the negligent advice; (2) at the time Mrs. Payne had her IUD removed in reliance on that advice; (3) at the time Michael was conceived; or (4) upon Michael's birth. We will analyze each of these four possibilities. First, we look at the alleged negligent advice of the doctors. The increased ability of health care professionals to predict and detect the presence of fetal defects and the capacity to assess risk factors associated with unborn and even unconceived children have considerably enhanced the importance of genetic counseling. It is now possible for prospective parents to know, well in advance of birth, of the risk of congenital defects in children not yet conceived. Courts accordingly have recognized that physicians who perform testing and provide advice relevant to the constitutionally guaranteed procreative choice, "or whose actions could reasonably be said to give rise to a duty to provide such testing or advice," Smith v. Cote, 128 N.H. 231, 513 A.2d 341, 346 (1986), have a corresponding obligation to adhere to reasonable standards of professional performance.

Assuming that the facts alleged by the parents are true, did their cause of action accrue when the doctors mistakenly advised them? We conclude that it did not. Although there was a duty to the parents which the doctors may have breached, at that time the parents had no injury as a result of the breach. If the parents had been unsuccessful in conceiving a second child, no cause of action could have arisen. The parents may have had negligent advice, but nothing more.

Second, did the parents' cause of action accrue at the time Mrs. Payne had her IUD removed? They contend that they were injured when, in reliance on the doctors' advice, they incurred expenses for the removal of Mrs. Payne's IUD. They argue that they have a vested right to their negligence cause of action that "relates back" to the date of the earlier "injury" (removal of...