Ramey v. Fassoulas

• Decision Date: 23 February 1982
• Docket Number: No. 79-1573,79-1573
• Citation: 414 So.2d 198
• Court: Florida District Court of Appeals
• Parties: Dr. John R. RAMEY and Manson, Kuckku and Middkiff, P. A., individually, and d/b/a Manson Clinic, Appellants, v. John FASSOULAS and Edith Fassoulas, individually and as husband and wife, Appellees.

Page 198

414 So.2d 198

Dr. John R. RAMEY and Manson, Kuckku and Middkiff, P. A., individually, and d/b/a Manson Clinic, Appellants, v. John FASSOULAS and Edith Fassoulas, individually and as husband and wife, Appellees.

No. 79-1573.

District Court of Appeal of Florida Third District.

Feb. 23, 1982.

On Rehearing June 8, 1982.

Wicker, Smith, Blomqvist, Davant, Tutan, O'Hara & McCoy and Richard A. Sherman, Miami, for appellants.

Horton, Perse & Ginsberg and Arnold R. Ginsberg, Hawkesworth & Schmick, Miami, for appellees.

Before HUBBART, C. J., HENDRY, J., and PEARSON, TILLMAN (Ret.), Associate Judge.

HUBBART, Chief Judge.

The central issue presented for review by this appeal is whether the parents of a child, who is born as a result of a negligent vasectomy, are entitled in a "wrongful birth" negligence suit to past and future damages for the care and upbringing expenses of the subject child as against the tortfeasor physician who negligently performed the vasectomy. We hold that the parents are not entitled to damages for such past and future rearing expenses--unless the child is born with substantial physical or mental defects, in which event, the parents are entitled to recover the special medical and educational expenses, apart from the normal rearing costs, associated with raising such a child to majority, age 18. We, accordingly, reverse the final judgment entered below and remand for a new trial for failure of the trial court to strike, at least in part, the claim for past and future rearing expenses as to the children born in the instant case.

I

The facts pertinent to the above issue are as follows. On January 18, 1974, the plaintiff John Fassoulas went to the defendant Dr. John R. Ramey, a physician, who was at the time practicing medicine with the defendants Manson, Kuckku, and Midkiff, P. A. for a vasectomy. The plaintiff John Fassoulas and his wife, the plaintiff Edith Fassoulas, had two children at the time, both of whom had been born with congenital defects. The couple had decided, in view of their prior two defective children, not to have any more children and to obtain a vasectomy for Mr. Fassoulas.

The defendant Dr. Ramey performed, as requested, a vasectomy on the plaintiff John Fassoulas. Thereafter, in November, 1974, the plaintiff Edith Fassoulas became pregnant and later gave birth to a daughter, Maria, who was born with many congenital deformities, including an abnormal shaping of the skull, a short neck, redundant skin, and malformations of the hands, with the right hand missing several digits. In addition, Maria was born mentally retarded, is suffering from heart problems and hypertension, and will never be a "normal" child. The plaintiff, Edith Fassoulas, also became pregnant a second time in September 1976 and gave birth to a son, Roussi, who was born with a slight physical deformity. This deformity, however, was corrected almost immediately upon birth and he is now a normal, healthy child. There is no dispute for purposes of this appeal that the defendant Dr. Ramey negligently performed the subject vasectomy and that the birth of the above two children resulted from such negligence.

The plaintiffs, Mr. and Mrs. Fassoulas, brought suit in the Dade County Circuit Court against Dr. Ramey and his professional association based on medical malpractice for the two "wrongful births." The plaintiffs specifically pled various items of consequential damages in their complaint, including a claim for past and future expenses for the care and upbringing of the above-stated two children. The defendants herein moved pretrial to strike the rearing expense claim in the complaint. The trial court at first granted the motion, but later, upon reading additional authority, reversed itself and reinstated the above damage claim. At trial, the court instructed the jury that it could consider, as part of the consequential damages allegedly suffered by the plaintiffs herein, any past and future rearing expenses as to both children.

The jury subsequently returned a special verdict in favor of both plaintiffs, finding the defendants 100 percent negligent with reference to the birth of Maria and 50 percent negligent with reference to the birth of Roussi. The jury assessed damages as to the birth of Maria in the amount of $250,000 for both plaintiffs. As to the birth of the normal child Roussi, the jury awarded the plaintiffs $100,000. The trial court subsequently entered a final judgment in the amount of $250,000 for the plaintiffs as to the birth of the child Maria and $50,000 for the plaintiffs as to the birth of the child Roussi, the latter having been reduced by the plaintiffs' 50 percent comparative negligence. The defendants have prosecuted an appeal from that judgment.

II

The law is clear that the parents of a child have a cause of action sounding in negligence against a physician for performing a negligent vasectomy, sterilization, or abortion [or for otherwise performing negligent medical services] which results in the birth of an unwanted child. Moores v. Lucas, 405 So.2d 1022 (Fla. 5th DCA 1981); Public Health Trust v. Brown, 388 So.2d 1084 (Fla. 3d DCA 1980), pet. for review denied, 399 So.2d 1140 (Fla.1981); Jackson v. Anderson, 230 So.2d 503 (Fla. 2d DCA 1970). Although the recoverable items of damages tend to be much the same as any other negligence malpractice action, most courts, for good reason, have been reluctant to allow recovery for the cost of raising a child to his or her majority; see authorities collected at Public Health Trust v. Brown, 388 So.2d at 1085; in particular, this court has recently held that such rearing expenses are not recoverable where the child born is otherwise normal and healthy. Public Health Trust v. Brown, supra. ¹ Central to this ruling is the court's conclusion that the parents here have not been damaged by being required to raise their own normal, healthy child.

A

First, it is thought that the monetary value of a normal child's services, companionship and support to the parents more than offsets, as a matter of law, whatever rearing expenses may be incurred by the parents in raising such a child. This view is in full accord with the settled law in wrongful death cases that the surviving parents of a minor child, who is negligently killed by a third party, are entitled as damages to the intangible value, which is considerable, of the child's services and support; §§ 768.18(1), 768.21, Fla.Stat. (1979); see e.g., Winner v. Sharp, 43 So.2d 634, 636 (Fla.1950); Florida East Coast Railroad v. Hayes, 65 Fla. 1, 60 So. 792, 793 (1913); 17 Fla.Jur.2d "Death" § 43 (1980); moreover, no offset has been recognized here for child rearing expenses. See Fla.Std.Jury Instr. (Civil) 6.5, 6.6. Indeed, the courts have consistently sustained high jury awards for the loss of a child's services and support to the parents in such wrongful death cases. See Prosser on Torts 905-10 (4th ed. 1971).

Should a normal child born of a physician's negligence, as here, be killed negligently by a third party in an automobile accident, the parents would be entitled as damages to the value of the child's services and support with no offset for rearing expenses. It is, therefore, not surprising that most courts, including this court, do not allow for rearing expense damages in "wrongful birth" cases where the child born is otherwise normal and healthy. Such expenses are, in contemplation of law, considered de minimus when compared to the high value of the child's services and support.

B

Secondly, it is thought that the payment of normal expenses necessary to raise a child to majority is the sole legal obligation of the parents and in performing that duty it cannot be said that the parents have sustained any damages recognizable by law. Indeed, it has been embedded in our law for centuries that the father and now both parents or legal guardians of a child have the sole obligation of providing the necessaries in raising the child, whether the child be wanted or unwanted. Isaacs v. Deutsch, 80 So.2d 657 (Fla.1955); Bezanilla v. Bezanilla, 65 So.2d 754, 756 (Fla.1953); State ex rel. Airston v. Bollinger, 88 Fla. 123, 101 So. 282 (1924); Bullard v. Bullard, 195 So.2d 876 (Fla. 2d DCA 1967); 25 Fla.Jur.2d "Family Law" § 98 (1981); see also §§ 61.13(1), 744.301(1), 744.361(1), Fla.Stat. (1979). Parents who fail to perform this duty may forfeit all parental rights to the child. See e.g., §§ 39.01(1), (2), (9)(a), (27), 39.401 et seq (1979). The courts have, accordingly, been unwilling to walk away from this established law so as to exempt parents, as urged, of their legal obligation to support their children regardless of whether a physician, as here, has performed a negligent vasectomy [or some other similar negligent medical service] which eventually led to the birth of unwanted children. The child is still the child of the parents, not the physician, and it is the parents' legal obligation, not the physician's, to support the child.

C

We are, however, persuaded to make one limited exception to the general bar against rearing expense damages in cases of this nature. Where the child born has substantial mental or physical defects, the tortfeasor physician will be liable in damages for the special medical and educational expenses, as opposed to normal rearing costs associated with raising such a child to majority, which in Florida is age 18. § 743.07, Fla.Stat. (1979). We are supported in this result by a recent decision of the Fifth District Court of Appeal, Moores v. Lucas, 405 So.2d 1022 (Fla. 5th DCA 1981) (case nos. 80-1360, 81-117, opinion filed October 28, 1981), as well as the emerging view in the country on this subject. See cases collected in Public Health Trust v. Brown, 388 So.2d at 1085 n.3.

This exception, in our view, is based on the premise that the parents in cases of this nature have been damaged, in part, by the rearing of a child born with substantial mental or...