Robak v. U.S.

• Decision Date: 17 November 1981
• Docket Number: Nos. 81-1038,81-1099,s. 81-1038
• Citation: 658 F.2d 471
• Parties: Robert ROBAK and Anna Robak, Plaintiffs-Appellees, Cross-Appellants, v. UNITED STATES of America, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 471

658 F.2d 471

Robert ROBAK and Anna Robak, Plaintiffs-Appellees, Cross-Appellants, v. UNITED STATES of America, Defendant-Appellant, Cross-Appellee.

Nos. 81-1038, 81-1099.

United States Court of Appeals Seventh Circuit.

Argued June 3, 1981.

Decided Aug. 25, 1981.

As Corrected Aug. 25, 1981.

Rehearing Denied Nov. 17, 1981.

Richard S. Fleisher, Karlin & Fleisher, Chicago, Ill., for plaintiffs-appellees, cross-appellants.

Martin B. Lowery, Asst. U. S. Atty., Chicago, Ill., for defendant-appellant, cross-appellee.

Before CUMMINGS, Chief Judge, SWYGERT, Senior Circuit Judge, and GRANT, Senior District Judge. ^*

SWYGERT, Senior Circuit Judge.

This appeal presents a question that has never been decided by a federal court of appeals: whether a cause of action exists for wrongful birth. We hold that it does and affirm the judgment of the district court, which awarded damages to the parents of a child born with defects after a doctor had failed to inform the pregnant mother she had rubella. We reverse the judgment of the district court, however, on two issues raised by the parents in a cross-appeal: the calculation of damages and the method of award of attorneys' fees.

I

In May, 1972, plaintiffs Anna and Robert Robak visited the OB-GYN clinic at Fort Rucker, Alabama, where Mr. Robak, an enlisted man in the United States Army, was stationed. Mrs. Robak, who was then approximately one month pregnant, had developed a rash and a fever. She was examined by Dr. Joshua Roth, who performed a pregnancy test and a blood test for rubella (german measles). Dr. Roth informed Mrs. Robak that she was pregnant and that the test for rubella was negative. Mrs. Robak took a second test for rubella a few days later at the clinic, and this test returned positive. She returned to the clinic regularly for routine examinations during her pregnancy. Neither Dr. Roth nor anyone else at the hospital, however, ever informed Mrs. Robak that she had contracted rubella. ¹ She was also never advised of the serious consequences that the rubella virus could have upon her unborn fetus.

Mrs. Robak gave birth to a daughter, Jennifer, on January 12, 1973. At the time of her birth, Jennifer had a rash all over her body. She was also suffering from a loss of hearing, bilateral cataracts, a slight heart defect and possible mental retardation all common symptoms of a rubella syndrome child. Since then, Jennifer Robak has undergone two operations to remove cataracts. She has undertaken occupational and physical therapy and special training and education for the deaf-blind. She is industrially blind and has a severe to profound hearing loss; she cannot speak intelligibly. Glasses, contact lenses and hearing aids have been of only limited use. She will need deaf-blind care and supervision for the remainder of her life, as well as further operations.

On September 26, 1977, the Robaks brought this medical malpractice action, which was based on the clinic's negligence in failing to diagnose the rubella and to inform the parents of its possible consequences to the fetus. The Robaks sued the United States under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. In Counts I and III of the complaint, each of the parents respectively sought recovery of expenses for the care, education and maintenance of their child, Jennifer. Count II was brought on behalf of Jennifer by her father and next friend. This count was dismissed by the district court as not stating a cause of action and is not at issue in the case before us. The district court denied the government's motion to dismiss, or alternatively for summary judgment on, the other counts.

The defendant moved for certification of certain questions of law to the Alabama Supreme Court. The district court granted the motion, but certified instead the question as it was formulated by the plaintiffs. ² The question and record were filed with the Alabama court on July 5, 1979. On August 15, 1979, the Supreme Court of Alabama unanimously declined to answer the question certified. The district court then certified the question to this court, pursuant to 28 U.S.C. § 1292(b), on September 28, 1979. This court denied leave to appeal on October 24, 1979. The district court later denied further motions by the United States for judgment on the pleadings or for summary judgment.

The action was tried from October 7 to October 14, 1980. At the conclusion of the trial, the court ruled orally in favor of the Robaks on the issue of liability but reserved decision on the amount of damages. On November 13, 1980, the court awarded $900,000 in damages to the Robaks $450,000 to each plaintiff. The court issued a further order on December 9, 1980, that awarded plaintiffs' attorneys 25% of the money that is withdrawn from a reversionary trust established by agreement of the parties. The Robaks will withdraw funds from the trust as money is to be actually expended on Jennifer, and the attorneys shall be paid proportionately with each withdrawal up to a maximum of $225,000. The United States appeals from the order awarding damages to the Robaks. The Robaks also appeal from this order and from the one determining the amount and method of payment of attorneys' fees.

II

The principal issue in the case is whether a cause of action exists for wrongful birth. ³ Under the Federal Tort Claims Act, we must apply the law as it existed at the time and place of the tort. ⁴ The United States contends that no such cause of action could have existed in Alabama in 1972 because of the strong public policy of that state at the time against abortions. This argument represents a fundamental mischaracterization of the meaning of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 694 (1973), and of the nature of the action for wrongful birth.

Alabama has never addressed the issue of an action for wrongful birth. The United States points to two facets of Alabama law that, it contends, indicate that Alabama would have rejected such a cause of action in 1972. We find neither of them to be persuasive. In 1978, the Supreme Court of Alabama held that an action for wrongful life brought by a child did not exist. Elliott v. Brown, Ala., 361 So.2d 546 (1978). That case relied in large part on a case decided prior to Roe v. Wade, Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967), which had held that public policy considerations precluded recognition of an action either for wrongful birth or for wrongful life. Shortly after the Elliott decision, however, the New Jersey Supreme Court rejected the reasoning of its Gleitman decision. Berman v. Allen, 80 N.J. 421, 404 A.2d 8 (1979). In recognizing a cause of action for wrongful birth when the doctor failed to warn the plaintiff mother of the high risk of her bearing a mongoloid child, the court wrote, "Public policy now supports, rather than militates against, the proposition that (the mother) not be impermissibly denied a meaningful opportunity to make (the) decision" whether to have an abortion. 404 A.2d at 14. Moreover, as we have noted, supra, n.2, the considerations in an action for wrongful life, such as Elliott, are quite different from those in an action like this one for wrongful birth.

The United States also emphasizes that in 1972 Alabama law forbade abortions, except as was necessary to preserve the life or health of the mother. ⁵ Ala.Code, Title 14, § 9 (1972). This statute, argues the Government, demonstrates that an Alabama court would not have recognized an action for wrongful birth in 1972, since it would have been based on the denial of the right to obtain an abortion that was illegal in Alabama. ⁶ That statement may be correct, but it is irrelevant to our decision here. Unlike a court sitting in Alabama in 1972, we may benefit from the knowledge of developments in the law in the last decade. Roe v. Wade held that statutes such as Alabama's were unconstitutional. In applying the law as it existed at the time of the occurrence of a tort, a court would not follow a law that has since been declared unconstitutional. An Alabama court deciding the issue now would obviously recognize, therefore, that the statute as it was then has no continuing effect.

In the absence of any direct precedent from the state involved, a federal court applying state law should consider decisions of its sister states on the same issue. Since Roe v. Wade, these precedents have been unanimous in recognizing a cause of action for the parents of a child born as a result of a physician's negligence. ⁷ Many of these cases established liability for a physician's failure to inform parents of a significant risk that the fetus would be born with defects. ⁸ Two state courts have specifically so held in cases involving rubella syndrome children. In both, the pregnancy occurred, as in this case, before Roe v. Wade. In Jacobs v. Theimer, Tex., 519 S.W.2d 846 (1975), the court noted that even though abortions were illegal in Texas at the time,

The complaint is not that the defendant doctor failed to perform an abortion or tell Mrs. Jacobs that she should obtain an abortion elsewhere ... but the plaintiffs contend only that the defendant should have given them information as to Mrs. Jacobs condition and then, with the information she had a right to expect from her doctor, the decision would have been made by the plaintiffs themselves to terminate the pregnancy.

519 S.W.2d at 848 (emphasis in original). In Dumer v. St. Michael's Hospital, 69 Wis.2d 766, 233 N.W.2d 372 (1975), the court also recognized that the choice of whether to obtain an abortion was one for the parents to make. It held they had a cause of action for expenses reasonably suffered as a result of the doctor's failure to diagnose the mother's rubella and to inform her of the consequences. ⁹

State courts have been quick to accept wrongful birth as a cause of action since Roe v. Wade, because it is not a significant departure from previous tort law. A case...