Pitre v. Opelousas General Hosp.

• Decision Date: 07 October 1987
• Docket Number: No. 87-209,87-209
• Citation: 517 So.2d 1019
• Parties: Tammy Dupre PITRE, et al., Plaintiffs-Appellees, v. OPELOUSAS GENERAL HOSPITAL, et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 1019

517 So.2d 1019

Tammy Dupre PITRE, et al., Plaintiffs-Appellees, v. OPELOUSAS GENERAL HOSPITAL, et al., Defendants-Appellants.

No. 87-209.

Court of Appeal of Louisiana Third Circuit.

Oct. 7, 1987.

Writ Granted Nov. 30, 1987.

Andrus & Doherty, Alex Andrus III, Opelousas, for defendant/applicant.

Talbot, Sotile, Carmouche, Marchand & Marcello, Donald T. Carmouche, Donaldsonville, for plaintiff/respondent.

Juneau, Hill, Judice, Hill & Adley, Marc Judice, Kathleen Drew, LaFayette, Watson, Blanche, Wilson & Posner, Debra Templett, Baton Rouge, for defendants.

Before FORET, STOKER, DOUCET, KNOLL and KING, JJ.

STOKER, Judge.

This case comes up before us as a result of our grant of an application for writs by Dr. John Kempf.

Prior to the birth of their second child, Tammy Dupre Pitre and Dwain P. Pitre decided that it was not economically feasible for them to have more than two children. The Pitres allege that they engaged Dr. John Kempf to perform a bilateral tubal ligation on Mrs. Pitre in conjunction with the delivery of their second child, in order to prevent any future pregnancies. Dr. Kempf performed the operation, but it was not successful; Mrs. Pitre conceived and gave birth to their third child, Hannah. Hannah is afflicted with the congenital defect known as albinism.

This litigation consists of two actions: one action brought on behalf of Hannah Pitre by her parents for alleged damages resulting from her birth and the physical defects caused by albinism and an action brought by Tammy and Dwain Pitre for damages which they alleged they suffered individually as a result of Hannah's conception and birth. The defendants named in the two claims are Dr. Kempf, Dr. James McCarthy and Opelousas General Hospital.

The defendants sought dismissal of all or a part of the plaintiffs' actions through exceptions and motions. The trial court overruled all of the exceptions and denied all motions. Because the claims asserted by the plaintiffs have not been given definitive consideration in Louisiana, we granted Dr. Kempf's application for writs in order to consider the correctness of the trial court's denial of the motion to strike, motion for partial summary judgment and exception of no cause of action filed by Dr. Kempf. The issues presented in this litigation are whether Louisiana recognizes a claim for wrongful life and actions alternately designated as wrongful birth, wrongful pregnancy and wrongful conception. In making this determination, we do not work from evidentiary facts gathered at trial; rather, we consider the existence vel non of the asserted causes of action from the allegations of the petition. The question of whether any of the defendants were in fact guilty of negligence or are otherwise liable in tort is not decided here. In addition to the substantive issues considered herein, certain procedural questions are raised by the various motions and exceptions filed by the defendants.

PERTINENT ALLEGATIONS OF THE PETITION

The basis of the plaintiffs' actions and the specific nature of the damages sought by the plaintiffs are contained in paragraphs 5, 9, 10, 11 and 12 of the petition which we set forth in full below:

"5.

As a result of the failure of DR. JOHN KEMPF to properly perform the bilateral tubal ligation and the failure of either the OPELOUSAS GENERAL HOSPITAL, DR. JAMES McCARTHY and/or DR. JOHN KEMPF, to inform your petitioner, TAMMY D. PITRE, that the bilateral tubal ligation had been improperly performed, she became pregnant.

"9.

HANNAH PITRE was born with a physical deformity, namely albinism, which will require medical attention for the rest of her natural life. Further, HANNAH PITRE has severe problems with visual acuity, cannot see in bright light, and will have permanent visual problems.

"10.

TAMMY D. PITRE, individually, seeks damages for the wrongful conception of the child; expenses incurred during pregnancy and delivery; economic costs of rearing an unplanned and unwanted child; special expenses regarding the child's deformity; expenses for the change in family status, including extra money to compensate for the fact that she must spread her society, comfort, care, protection and support over a larger group; money to replenish the family exchequer so that HANNAH PITRE will not deprive other members of the family; additionally, TAMMY D. PITRE, individually, seeks damages for past, present and future emotional and mental distress and physical pain and suffering.

"11.

DWAIN P. PITRE, individually, seeks damages for loss of consortium, service and society; economic costs of rearing an unplanned and unwanted child; expenses incurred during pregnancy, delivery and post-delivery; expenses for change in family status; special expenses regarding the child's deformity; and emotional and mental distress, past, present and future.

"12.

TAMMY D. PITRE and DWAIN P. PITRE, on behalf of their minor child, HANNAH PITRE, seek damages for the wrongful life of HANNAH PITRE, in that she was born with a physical deformity, namely albinism; future medical expenses; emotional and mental pain and suffering, past, present and future; physical pain and suffering, past, present and future; and for all other equitable relief to which she is entitled.

"WHEREFORE, petitioners, TAMMY D. PITRE and DWAIN P. PITRE, individually and on behalf of their minor daughter, HANNAH PITRE, pray that this suit be filed and that the defendants be cited to appear and answer hereto, and after the lapse of legal delays and due proceedings be had, there be judgment herein in favor of your petitioners and against the defendants, OPELOUSAS GENERAL HOSPITAL and JOHN KEMPF, M.D., P.C., jointly and in solido for their negligence and for damages together with legal interest and costs of these proceedings, as well as for all other relief to which they are entitled according to the law or as may be reasonable in the premises. Petitioners further pray for a trial by jury."

The plaintiffs have designated their individual claim as one of wrongful conception and the claim brought on Hannah's behalf as one for wrongful life. Several treatises, articles and some jurisprudence from other states have attempted to classify, define and distinguish the various claims against doctors and others stemming from the birth of an unplanned or unwanted child. For our purposes terminology will not be determinative of our considerations. As we have noted, the action asserted on behalf of Hannah appears to be generally referred to as a "wrongful life" action in states which have dealt with an action filed on behalf of a child, and actions by the parents are alternately referred to as actions for "wrongful birth," "wrongful pregnancy," or "wrongful conception." One writer suggests that serious confusion results from not distinguishing between a wrongful birth action and a wrongful pregnancy action. See, Paul, Damages for Wrongful Birth and Wrongful Pregnancy in Illinois, 15 Loy.Chi.L.J. 799 (1980). We need not, however, discuss or examine any philosophical or practical distinctions, for it suffices in this case to refer to these actions as they have been denominated by the plaintiffs. Accordingly, we will refer to the action on behalf of Hannah Pitre as a wrongful life action and that of her parents, Tammy and Dwain Pitre, as a wrongful conception action. We make no distinction between the actions for wrongful birth, pregnancy or conception for purposes of our discussion of this case. Our holding is limited to the particular set of facts in this case and the damages as alleged.

PROCEDURAL ASPECTS OF THE ACTIONS

After the plaintiffs' suit was filed, all of the defendants filed various motions and exceptions. Dr. McCarthy filed an answer and exceptions of no cause of action and a motion for summary judgment. ¹ Opelousas General Hospital filed an exception of no cause of action and a motion for summary judgment. Dr. Kempf filed an exception of no cause of action, objecting to both stated causes of action; a motion to strike those portions of the petition which concerned the wrongful life action and certain damages alleged by Tammy and Dwain Pitre individually; and a motion for partial summary judgment as to the damages resulting from Hannah's albinism. As stated before, the trial court overruled all of the exceptions and denied all of the motions. The ruling of the trial court meant that the case would proceed to trial. The plaintiffs had demanded a trial by jury. Because of the nature of the substantive issues involved, we granted Dr. Kempf's application for writs and called the case up to consider the validity of the asserted actions before they went to trial. Dr. Kempf was the sole party to apply for writs, but in granting the writ we ordered a stay of all further proceedings in the case.

LOUISIANA JURISPRUDENCE

Counsel have referred us to only two cases which have approached wrongful life and wrongful birth actions. In Yasar v. Cohen, 483 So.2d 1099 (La.App. 4th Cir.1986) the court avoided the major issue of a wrongful birth action. The plaintiffs, husband and wife, alleged that the defendant doctor negligently inserted an intrauterine device. As a result the plaintiff-wife gave birth to an unplanned, but healthy child. The court of appeal noted that the plaintiffs' sought two items of damages: remuneration for plaintiff-wife's injuries and expenses and the costs of rearing an unwanted child. The court ruled "that the allegations of the petition, if proven, will allow plaintiff-wife to recover for her own injuries, expenses, etc. When the petition states a cause of action as to any ground or portion of the demand the exception of no cause of action must be denied." The court then observed that because a cause of action was stated for at least one item of damages sought, it did not have to pass on the right to recover the costs of rearing the child.

The other case cited to us is Doe v. Cronan, 487 So.2d 461 (La.App. 5th Cir.1...