Proffitt v. Bartolo

• Decision Date: 01 October 1987
• Docket Number: Docket No. 84840
• Citation: 162 Mich.App. 35,412 N.W.2d 232
• Parties: David L. PROFFITT, Individually and as Next Friend of Maya S. Proffitt, a Minor, and Yasmin S. Proffitt, (RECIO), Plaintiffs-Appellants, v. Dr. Anthony H. BARTOLO and Anthony H. Bartolo, M.D., P.C., a professional corporation, jointly and severally, Defendants-Appellees. 162 Mich.App. 35, 412 N.W.2d 232
• Court: Court of Appeal of Michigan — District of US

Page 232

412 N.W.2d 232

David L. PROFFITT, Individually and as Next Friend of Maya

S. Proffitt, a Minor, and Yasmin S. Proffitt, (RECIO), Plaintiffs-Appellants, v. Dr. Anthony H. BARTOLO and Anthony H. Bartolo, M.D., P.C., a

professional corporation, jointly and severally,

Defendants-Appellees.

Docket No. 84840.

162 Mich.App. 35, 412 N.W.2d 232

Court of Appeals of Michigan.

Submitted Dec. 3, 1986.

Decided Aug. 3, 1987.

Released for Publication Oct. 1, 1987.

[162 MICHAPP 36] Michael L. Pitt, Detroit, for plaintiffs-appellants.

Weipert, Morr & Weipert by James E. Morr, Monroe, for defendants-appellees.

Before DANHOF, C.J., and SHEPHERD and PORTER, ^* JJ.

SHEPHERD, Judge.

Plaintiffs appeal from a grant of summary judgment in favor of defendants in this [162 MICHAPP 37] medical malpractice action. This case requires us to consider again the liability of a physician for both "wrongful birth" and "wrongful life." Specifically, we are concerned here with whether a physician is liable to both the parents and a child when the latter suffers from birth defects caused by the failure to diagnose an illness in the mother in the first trimester of pregnancy--thereby depriving the parents of the option of aborting the unborn child. We reverse in part and remand for further

proceedings. We are allowing the parents' "wrongful birth" claim because it has existed in Michigan since 1981 and has not been abolished by legislation or by the Supreme Court. We will not create a claim on the part of the child for "wrongful life" since we believe that this issue is more appropriately addressed by the Legislature or the Supreme Court

I

Plaintiffs David and Yasmin Proffitt filed this suit on February 8, 1978. They alleged that, approximately two weeks before February 11, 1976, Yasmin displayed many of the clinical manifestations of rubella (German measles), including a rash. On February 11, 1976, during the first trimester of pregnancy, plaintiffs retained defendant Dr. Bartolo to provide professional services relating to Yasmin's pregnancy and delivery. They reported the rash's history to Dr. Bartolo and his nurse.

Dr. Bartolo sent Yasmin to Mercy-Memorial Hospital in Monroe, Michigan, for studies. On February 26, 1976, the blood studies were performed, including a test for rubella. During March, 1976, Yasmin continued under Dr. Bartolo's care and complained of chronic headaches, fever, malaise,[162 MICHAPP 38] and gastrointestinal discomfort. On March 17, 1976, Dr. Bartolo again admitted Yasmin to the hospital for the treatment of a parasitic infection associated with hematemesis and headaches. Dr. Bartolo diagnosed Yasmin's condition as a whipworm infestation and discharged her from the hospital on March 19, 1976. In the following months, Yasmin continued to complain of chronic headaches, nausea, malaise, and fever to Dr. Bartolo.

David called Dr. Bartolo on June 14, 1976, to complain about Yasmin's high fever. At the end of the conversation, Dr. Bartolo advised plaintiffs that he could no longer provide professional services to them and that they should seek the services of another physician. Plaintiffs retained the services of another physician who delivered the child, plaintiff Maya S. Proffitt, on August 23, 1976.

Plaintiffs alleged numerous instances of negligent conduct on Dr. Bartolo's part. Essentially, plaintiffs alleged that Dr. Bartolo failed to exercise the required degree of care and skill in diagnosing and treating Yasmin, including a failure to take an adequate history, to employ sufficient diagnostic tests, to interpret the rubella test properly, and to order additional tests to evaluate the risk of a rubella or other infection which could cause congenital fetal malformations. Plaintiffs allege that Dr. Bartolo failed to advise them of the rubella test results, the significance of those findings and the necessity of further tests, and the risk of severe congenital fetal malformations resulting from rubella or other serious infections during Yasmin's first trimester of pregnancy. Plaintiffs also alleged that Dr. Bartolo failed to advise plaintiffs of the risks to the fetus so that plaintiffs could decide whether to terminate the pregnancy. Plaintiffs[162 MICHAPP 39] allege that, had Dr. Bartolo properly diagnosed Yasmin's condition and adequately advised them, they would have terminated Yasmin's pregnancy. Instead, Maya was born with microcephaly, mental retardation, severe bilateral eye malformations resulting in blindness, and other severe congenital malformations caused by a rubella infection or another intrauterine viral, parasitic or protozoic infection transmitted to Maya during the early stages of fetal development.

In count I, David and Yasmin sought recovery for the "substantial medical, institutional and educational" expenses they will incur until Maya reaches age eighteen. They also sought damages for "emotional strain and distress, pain and suffering and the loss of services, society, companionship, comfort and support" from Maya. Count II was brought on Maya's behalf, alleging that she will be unable to earn any income and seeking recovery for the "extensive medical, institutional and educational" expenses she will incur after reaching age eighteen. Maya also requested damages for the "severe pain and suffering, emotional distress and pain, embarrassment and humiliation" resulting from her grave congenital deformities. Count III alleged a

breach of contract claim against defendants

A series of delays not important to the legal issues raised in this appeal followed. After discovery, however, defendants moved on February 20, 1985, for summary judgment under GCR 1963, 117.2(1), now MCR 2.116(C)(8), for failure to state a claim upon which relief can be granted. Defendants argued that Michigan does not recognize a claim for "wrongful life" and, thus, both the parents' and child's claims should be dismissed. Following a hearing, the circuit court entered an [162 MICHAPP 40] order on April 19, 1985, dismissing all of plaintiffs' claims.

II

A motion for summary judgment under GCR 1963, 117.2(1) tests the legal adequacy of the pleadings. A court must accept all well-pleaded facts as true. The test is whether plaintiffs' claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development could justify a right to recovery. Abel v. Eli Lilly & Co., 418 Mich. 311, 323-324, 343 N.W.2d 164 (1984). Thus, we must determine whether plaintiffs' complaint adequately alleges recognized claims for "wrongful birth" and "wrongful life." ¹

The term "wrongful birth" is a shorthand name given to actions brought by the parents of a child born with severe defects against a physician (or other responsible party) who negligently fails to inform them in a timely fashion of the risk that the mother will give birth to such a child, effectively precluding an informed decision as to whether the pregnancy should be avoided or terminated. A "wrongful life" claim, on the other hand, is brought on behalf of a child with birth defects who claims that, but for the negligent advice to [162 MICHAPP 41] the parents, the child would not have been born. ² See Smith v. Cote, 128 N.H. 231, 513 A.2d 341, 344 (1986); Procanik v. Cillo, 97 N.J. 339, 347-348, 478 A.2d 755 (1984). Both causes of action involve claims of professional negligence. Dorlin v. Providence Hospital, 118 Mich.App. 831, 836, 325 N.W.2d 600 (1982). This Court has previously considered both causes of action.

III

This Court first addressed these causes of action in Eisbrenner v. Stanley, 106 Mich.App. 357, 308 N.W.2d 209 (1981), lv. den. 414 Mich. 875 (1982), a case involving rubella-caused birth defects. The Court recognized a claim for wrongful birth. The Court in Eisbrenner began its analysis with the seminal New Jersey case of Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967), in which the New Jersey Supreme Court rejected both causes of action. With regard to wrongful birth, the New Jersey Supreme Court found it impossible to measure damages by weighing the "complex human benefits" of parenthood against the alleged emotional and pecuniary damages. The court was also troubled by a cause of action which appeared contrary to the public policy favoring the preciousness of human life.

Eisbrenner noted that the New Jersey Supreme Court had retreated from its earlier position on wrongful birth in Berman v.

Allan, 80 N.J. 421, 404 A.2d 8 (1979). This retreat was premised at least in part on the fact that the parents' decision whether or not to terminate a pregnancy during the first [162 MICHAPP 42] trimester must be free of governmental interference following Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Eisbrenner cited other cases approving the parents' cause of action but not the child's. In particular, the Court noted Jacobs v. Theimer, 519 S.W.2d 846 (Tex.1975), in which the Texas court found it impossible to justify a policy which deprived the parents of information by which they could elect to terminate the pregnancy likely to produce a defective child, required that the pregnancy be continued until a deficient child was born, and then denied recovery from the tortfeasor of the cost of treating and caring for the child's defects. Eisbrenner allowed the plaintiff parents to seek medical expenses and damages for mental distress, under the rules outlined in Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971)

This Court has not again directly faced the wrongful birth issue until now. Eisbrenner and the wrongful birth cause of action were mentioned in Dorlin, supra, 118 Mich.App. at p. 835, 325 N.W.2d 600, and Strohmaier v. Associates in Obstetrics & Gynecology, 122 Mich.App. 116, 119, 332 N.W.2d 432 (1982), lv. den. 417 Mich. 1072 (1983). Both of those cases primarily concerned the wrongful life issue, however.

The jurisdictions considering the issue have now almost uniformly adopted the wrongful birth...