Pitre v. Opelousas General Hosp.

Decision Date12 September 1988
Docket NumberNo. 87-C-2360,87-C-2360
Citation530 So.2d 1151,74 A.L.R. 4th 777
PartiesTammy Dupre PITRE, et al. v. OPELOUSAS GENERAL HOSPITAL, et al.
CourtLouisiana Supreme Court

Victor Marcello, Donalsonville, for applicant.

Debra Templet, Watson, Blanche, Wilson & Posner, Baton Rouge, Marc Judice, Juneau, Hill, Judice & Adley, P.L.C., Lafayette, Alex Andrus, Andrus & Doherty, Opelousas, for respondent.

John S. Baker, Jr., amicus curiae for Dr. John Kempf.

Basile J. Uddo, New Orleans, amicus curiae for Louisiana Right to Life Federation, Louisiana Pro-Life Counsel, Baton Rouge Right to Life, Eunice Right to Life, Heartbeat of Louisiana, Inc., New Orleans Right to Life.

W.J. Manion, amicus curiae for Tammy Dupre Pitre, et al.

DENNIS, Justice.

This medical malpractice suit filed by parents of an albino child, seeking damages for themselves and the child, arises out of a surgeon's alleged negligence which caused the failure of a bilateral tubal ligation to sterilize the mother, resulting in the unplanned and unwanted birth of the child. We granted a writ to review the pretrial ruling by the court of appeal under its supervisory jurisdiction dismissing the child's suit for failure to state a cause of action and striking all of the parents' individual claims except for expenses associated with pregnancy and delivery and for the husband's loss of consortium. The primary questions presented for our consideration are (1) whether the physician owed a duty to the parents to exercise reasonable care in performing the operation or to advise the parents that the operation had failed, and, if so, what are the kinds and the extent of damages for which the physician may be held accountable; (2) whether the physician owed a duty to the unconceived child to avoid acts or omissions foreseeably likely to cause the child to be born with a congenital defect, and if so, whether under the facts alleged in this case the physician's duty encompassed the risk that the child would be born with albinism.

Facts and Procedural History

Tammy Pitre underwent a bilateral tubal ligation on April 25, 1984 at Opelousas General Hospital. The surgery was performed by Dr. John Kempf in conjunction with the delivery of the Pitres' second child. A pathology report dated April 30, 1984 indicated that Dr. Kempf severed fibro muscular vascular tissue rather than fallopian tissue during the surgical procedure. The petitioners Tammy & Dwain Pitre were not informed of this finding. Mrs. Pitre later became pregnant and gave birth to their third child, Hannah. Hannah was born with the congenital defect known as albinism.

The Pitres filed suit naming Opelousas General Hospital and Dr. John Kempf as defendants. The petition alleges that as a result of the failure of Dr. Kempf to properly perform the bilateral tubal ligation and the failure of either Opelousas General Hospital or Dr. Kempf to inform Tammy Pitre that the operation had been unsuccessful, she became pregnant. Petitioners also allege that Hannah Pitre was born with a physical deformity, albinism, which will require medical attention for the rest of her natural life, that she has severe problems with visual acuity, cannot see in bright light and will have permanent visual problems.

The claim of the parents includes damages for expenses incurred as a result of the pregnancy and delivery or birth as well as a general demand for emotional and mental distress, past, present and future. They ask for costs of rearing the child, special expenses for the child's deformity, expenses for the change in family status including extra money to compensate for the fact that their society, comfort, care, protection and support must be spread over a larger group, and money to replenish the "family exchequer" so that Hannah's needs will not deprive other members of the family. Additionally, Tammy Pitre seeks damages for her physical pain and suffering and Dwain Pitre seeks damages for loss of consortium, service and society.

On behalf of their minor child, Tammy & Dwain Pitre seek damages for the "wrongful life" of Hannah Pitre in that she was born with a physical deformity, namely albinism, future medical expenses, past, present, and future, emotional and mental hardship, pain and suffering.

The trial court overruled the various motions and exceptions filed by the three defendants including exceptions of no cause of action, motions for summary judgment and a motion to strike those portions of the petition concerning the "wrongful life" action and certain damages alleged by Tammy and Dwain Pitre individually. The court of appeal granted Dr. Kempf's pretrial writ application to consider the validity of the asserted causes of action. Although Dr. Kempf was the only party to apply for writs, the court of appeal ordered a stay of all further proceedings in this case.

After considering written and oral arguments, the court of appeal sustained the exception of no cause of action as to the "wrongful life" claim of Hannan Pitre. The court of appeal found it would be improper to grant Dr. Kempf's exception of no cause of action regarding the parents' claim. However, by granting a motion to strike, the court of appeal limited the elements of damages possibly recoverable by Tammy Pitre to expenses incurred during pregnancy and delivery and limited those of Dwain Pitre to loss of consortium, service, and society and expenses incurred during pregnancy, delivery, and post delivery. Pitre v. Opelousas General Hospital, 517 So.2d 1019 (La.App. 3 Cir.1987). This court granted a writ to review the court of appeal decision. Pitre v. Opelousas General Hospital, 519 So.2d 105 (La.1987).

Similar Tort Claims in Other States

Recent decades have produced a variety of tort claims arising when a member of the medical profession's negligence results in the birth of an unwanted child. W. Keeton, D. Dobbs, R. Keeton, and D. Owen, Prosser and Keeton on the Law of Torts, Sec. 55 (5th ed. 1984)(hereinafter cited as Prosser and Keeton). The various causes of actions have been defined and distinguished to help clarify precisely what issues are involved in the case. See Garrison v. Foy, 486 N.E.2d 5 (Ind.App.3d Dist 1985); 15 Loy.U.Chi.L.J. 799 (1983-84).

In wrongful birth actions, parents claim they would have avoided conception or terminated the pregnancy if they had been informed of the risk of birth defects to the child. Whereas a wrongful birth action is brought by the parents, a wrongful life action is brought by or on behalf of the child for having to endure life in the afflicted condition. There is no allegation that the physician's negligence directly caused the defect. Rather, it is alleged that the physician's negligent practice or failure to properly advise the parents has led to the birth of the child in the afflicted condition. Garrison v. Foy, 486 N.E.2d 5. A wrongful pregnancy or wrongful conception action involves a suit brought by the parents of a child, usually born healthy. The parents allege that the negligent performance of a sterilization technique caused the conception of the unplanned child. Id.

A study of other jurisdictions reveals a myriad of answers to the problem. The recognition or denial of particular causes of actions, and the respective reasons offered by various courts, may promote a clearer understanding of the issues. In 1967, New Jersey handed down the landmark decision of Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967). The mother claimed the doctor had negligently assured her that the disease contracted during her pregnancy would not affect the child. Moreover, the mother claimed that if she had been adequately informed she may have procurred an abortion. The court denied recovery finding it impossible to measure the difference between life with defects against nonlife. In addition, there were the practical difficulties of calculating damages and the fear by the court that allowing such an action would be tantamount to sanctioning abortion. Both the wrongful life and the wrongful birth actions were denied by the court. Prosser and Keeton, supra, Sec. 55.

The years following Gleitman witnessed the legalization of abortion, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and many jurisdictions became receptive to parents' wrongful birth claims. Robak v. United States, 658 F.2d 471 (7th Cir.1981); Becker v. Schwartz, 46 N.Y.2d 401, 386 N.E.2d 807, 413 N.Y.S.2d 895 (1978). On the other hand, all jurisdictions that have confronted the issue have denied the child's wrongful life cause of action for general damages for the suffering of being born in an afflicted condition. 1 Finally, a great majority of courts allow recovery to the parents for their wrongful conception or wrongful pregnancy claims. See Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463 (1967); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977); Ochs v. Borrelli, 187 Conn. 253, 445 A.2d 883 (1982). However, the courts disagree on the amount of damages that should be recoverable. Of the courts recognizing the cause of action, most allow expenses directly associated with the pregnancy and delivery. Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 453 A.2d 974 (1982); Beardsley v. Wierdsma, 650 P.2d 288 (Wyo.1982); Wilbur v. Kerr, 275 Ark. 239, 628 S.W.2d 568 (1982). Although some award child-rearing expenses, this figure is usually reduced by the "benefit" the parents receive by being blessed with this child. Prosser and Keeton, supra, at Sec. 55; Second Restatement of Torts, Sec. 920.

Elements of Delictual Responsibility

Under one analytical approach, in order for a defendant to be held liable for damages caused another by his negligence, affirmative answers must be given to these questions: (1) given the relationship and circumstances of the parties, does the law impose upon the defendant a duty of reasonable conduct for the benefit of the plaintiff, the violation of which is considered to be fault? (2) I...

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