Phillips v. United States, Civ. A. No. 79-553-8.

Decision Date12 December 1980
Docket NumberCiv. A. No. 79-553-8.
Citation508 F. Supp. 537
CourtU.S. District Court — District of South Carolina
PartiesWilliam Randall PHILLIPS, by his Guardian ad Litem, Dwight A. Phillips, Plaintiff, v. UNITED STATES of America, Defendant.

Ellis I. Kahn, Charleston, S. C., for plaintiff.

Jack L. Marshall, Asst. U. S. Atty., Columbia, S. C., for defendant.

ORDER

BLATT, District Judge.

This matter is before the court on defendant's motion for summary judgment pursuant to Rule 12(b) and Rule 56(b) of the Federal Rules of Civil Procedure. The action was brought under the Federal Tort Claims Act, and jurisdiction is predicated on 28 U.S.C. § 1346(b). Defendant's motion asserts, inter alia, that any failure by defendant's employees in advising, counseling, and testing plaintiff's mother during her pregnancy concerning the risks of Down's Syndrome would not constitute actionable negligence with respect to the plaintiff; that an allegation of "wrongful life"1 does not state a claim upon which relief can be granted; that plaintiff has not suffered any damage cognizable at law; and that plaintiff does not have standing to maintain this cause of action. Although various other jurisdictions have addressed these issues,2 this case is one of first impression in South Carolina and its resolution necessitates a careful and circumspect review of both the factual situation and the applicable theories and precedents.

FINDINGS OF FACT

1. Plaintiff, William Randall Phillips, is the son of Dwight A. Phillips and Kathleen D. Phillips. He was born on September 23, 1977, at the Charleston Naval Regional Medical Center (CNRMC) in Charleston, South Carolina, where his father was on active duty with the United States Navy. It was noted at his birth that plaintiff was afflicted with Down's Syndrome,3 commonly known as mongoloidism, as well as a moderately loud heart murmur.

2. On August 9, 1976, during a previous pregnancy, plaintiff's mother made her initial visit to the obstetrics clinic at CNRMC. At that time, Mrs. Phillips was in her twelfth week of pregnancy. In completing a prenatal questionaire, she indicated, among other information, that she was twenty-two years of age, that she had not previously borne any children, and that her sister was "mentally retarded." Less than a week later, she experienced an apparent spontaneous abortion, for which she was hospitalized and treated with a therapeutic uterine cervix dilation and curettage.

3. On March 22, 1977, during a subsequent pregnancy, Mrs. Phillips again visited the obstetrics clinic at CNRMC. In responding to a section on the prenatal questionnaire concerning any family history of mental retardation, Mrs. Phillips noted that her sister was afflicted with Down's Syndrome. She also indicated that her last menstrual period was December 14, 1976; therefore, at the time of this visit, Mrs. Phillips was approximately fourteen weeks pregnant. She returned to CNRMC on April 17, 1977, and saw Dr. Sadler, who noted that she was in her seventeenth or eighteenth week of gestation and that she reported a family history which included a "sister with Down's Syndrome." Mrs. Phillips was given no further counseling or genetic testing based on this information.4 The pregnancy culminated with the birth of the plaintiff on September 23, 1977.

4. Although not directly relevant to his "wrongful life" claim, plaintiff's complaint also asserts a distinct cause of action for medical malpractice against defendant's employees at CNRMC based on their alleged failure to diagnose and treat a cardiac disorder in the newborn plaintiff known as "patent ductus arteriosus." In view of the conflicts in the record, the court feels that summary judgment would be inappropriate on this issue.

CONCLUSIONS OF LAW

Counsel for the respective parties agree that there is no controlling decision in South Carolina governing the novel issues raised by plaintiff's "wrongful life" claim. Under the Federal Tort Claims Act, this court is bound to follow "the law of the place where the act or omission occurred," 28 U.S.C. § 1346(b); e. g., Long v. United States, 241 F.Supp. 286 (W.D.S.C.1966); however, in the absence of such controlling law, this court must attempt to predict the determination that the state Supreme Court would reach on the question. Quinones v. United States, 492 F.2d 1269 (3rd Cir. 1974). A particularly appropriate example of this process, albeit in a diversity context, is provided by Todd v. Sandidge Construction Co., 341 F.2d 75 (4th Cir. 1964), a case arising in the District Court for the Eastern District of South Carolina, in which the Fourth Circuit Court of Appeals correctly anticipated the South Carolina Supreme Court's decision in Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964), by finding that a claim of tortious prenatal injury to a viable fetus did state a cause of action for wrongful death under South Carolina law. Moreover, the state Supreme Court's awareness of the contemporary problems in this area is inferentially supported by language in Baldwin v. Sanders, 266 S.C. 394, 223 S.E.2d 602 (1976), affirming the trial court's refusal to grant a demurrer for failure to state a claim in a "wrongful pregnancy"5 case. Id. at 397, 223 S.E.2d at 603. In light of the increasing importance of these issues, and their unsettled status in South Carolina, the duty of this court to resolve the issues can only be discharged by a careful survey of the state of the law nationwide, as well as an examination of the theoretical underpinnings of the existing decisions.

As previously noted,6 eight jurisdictions have considered "wrongful life" claims in approximately twenty reported decisions, with a number of other jurisdictions having considered "dissatisfied life"7 claims. The overwhelming majority of those cases have refused to recognize the validity of "wrongful life" claims. Although intermediate courts in two jurisdictions have recognized such claims, Curlender v. Bio-Science Laboratories, 106 Cal.App.3d 811, 165 Cal.Rptr. 477 (Ct.App.1980); Becker v. Schwartz, 60 App.Div.2d 587, 400 N.Y.S. 2d 119 (1977); Park v. Chessin, 60 App.Div.2d 80, 400 N.Y. S.2d 110 (1977), the two New York decisions-consolidated for appeal-were reversed by the Court of Appeals of that state in Becker v. Schwartz, 46 N.Y.2d 401, 386 N.E.2d 807, 413 N.Y.S.2d 895 (1978), and the California decision is still being litigated in that state's courts.8 All "dissatisfied life" claims have been similarly denied. E. g., 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); Slawek v. Stroh, 62 Wis.2d 295, 215 N.W.2d 9 (1974). Thus, the intermediate court's decision in Curlender currently stands as the only case recognizing plaintiff's cause of action.9

The first reported "wrongful life" case is Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967). One of the primary factors cited by the court in denying the claim was the difficulty in ascertaining damages.

The normal measure of damages in tort actions is compensatory. Damages are measured by comparing the condition plaintiff would have been in, had the defendants not been negligent, with plaintiff's impaired condition as a result of the negligence. The infant plaintiff would have us measure the difference between his life with defects against the utter void of nonexistence, but it is impossible to make such a determination. This Court cannot weigh the value of life with impairments against the nonexistence of life itself. By asserting that he should not have been born, the infant plaintiff makes it logically impossible for a court to measure his alleged damages because of the impossibility of making the comparison required by compensatory remedies.

Id. at 29, 227 A.2d at 692. A concurring opinion couches a similar argument in terms of public policy.

Ultimately, the infant's complaint is that he would be better off not to have been born. Man, who knows nothing of death or nothingness, cannot possibly know whether that is so. We must remember that the choice is not between being born with health or being born without it; it is not claimed that the defendants failed to do something to prevent or reduce the ravages of rubella. Rather the choice is between a worldly existence and none at all .... To recognize a right not to be born is to enter an area in which no one could find his way.

Id. at 63, 227 A.2d at 711 (Weintraub, C. J., concurring and dissenting). Another widely cited case, Becker v. Schwartz, 46 N.Y.2d 401, 386 N.E.2d 807, 413 N.Y.S.2d 895 (1978), utilized similar reasoning.

Simply put, a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependent upon a comparison between the Hobson's choice of life in an impaired state and nonexistence. This comparison the law is not equipped to make.... Recognition of so novel a cause of action requiring, as it must, creation of a hypothetical formula for the measurement of an infant's damages is best reserved for legislative, rather than judicial, attention .... Accordingly, plaintiffs' complaints insofar as they seek damages on behalf of their infants for wrongful life should be dismissed for failure to state legally cognizable causes of action.

Id. at 410, 386 N.E.2d at 812, 413 N.Y.S.2d at 900.

A review of the extant case law reveals a number of recurrent rationales in cases of this type.

1. Ascertainment of Damages

This argument first appeared in this specific context in Gleitman, 49 N.J. at 29, 227 A.2d at 692, although it had its genesis in Zepeda v. Zepeda, 41 Ill.App.2d 240, 190 N.E.2d 849 (1963). While many of the earlier cases adopted the rationale, this court finds such reasoning unpersuasive. If a claim is legally cognizable, mere difficulty in the ascertainment of damages should be insufficient to preclude the action. Story Parchment Co. v. Paterson Co., 282 U.S....

To continue reading

Request your trial
20 cases
  • Phillips v. United States
    • United States
    • U.S. District Court — District of South Carolina
    • June 21, 1983
    ...2671-80. This court has previously addressed certain aspects of these claims in considerable detail.1 In Phillips v. United States, 508 F.Supp. 537 (D.S.C.1980) (hereinafter Phillips I), the court granted defendant's motion for summary judgment of the filial claim for "wrongful life."2 Shor......
  • Boone v. Mullendore
    • United States
    • Alabama Supreme Court
    • June 30, 1982
    ...life have recognized an action for wrongful pregnancy. See Phillips v. United States, 508 F.Supp. 544 (D.S.C.1981); Phillips v. United States, 508 F.Supp. 537 (D.S.C.1980); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977); Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (N.J.1979); Speck ......
  • Phillips v. United States
    • United States
    • U.S. District Court — District of South Carolina
    • January 19, 1981
    ...claim in a companion case brought by plaintiffs' child, which had presented a similarly novel cause of action. Phillips v. United States, 508 F.Supp. 537 (D.S.C., 1980) (order granting defendant's motion for summary 4 Down's Syndrome has been defined by one medical authority as a syndrome o......
  • Phillips v. United States
    • United States
    • U.S. District Court — District of South Carolina
    • December 7, 1981
    ...544 (D.S.C.1981), and granting defendant's motion for summary judgment of the filial claim for "wrongful life,"1 Phillips v. United States, 508 F.Supp. 537 (D.S.C.1980). Briefly, plaintiffs contend that the staff of the Naval Regional Medical Center (NRMC) in Charleston, South Carolina, bre......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT