Schirmer v. Mt. Auburn Obstetrics & Gynecolgic Assoc., 2003 Ohio 7150 (Ohio App. 12/30/2003)

Decision Date30 December 2003
Docket NumberAppeal No. C-030034.,Trial No. A-0104428.
Citation2003 Ohio 7150
CourtOhio Court of Appeals

Mark B. Smith Co., L.P.A., and Mark B. Smith, for Plaintiffs-Appellants,

Patrick K. Adkinson, for Defendants-Appellees Mt. Auburn OB/GYN and Kevin Fitzgerald, M.D.,

Dinsmore & Shohl, L.L.P., Frank C. Woodside, III, Robert A. Carpenter, and Sharon E. Gronotte, for Defendants-Appellees Children's Hospital Medical Center and Martha Walker, M.S.,

Rendigs, Fry, Kiely & Dennis, L.L.P., Paul W. McCartney, and Megan K. Roach, for Defendant-Appellee Howard M. Saal, M.D.

We have sua sponte removed this cause from the accelerated calendar.


GORMAN, Judge.

{¶1} Plaintiffs-appellants, Helen and Richard Schirmer, appeal from the trial court's order dismissing their complaint for damages allegedly caused by the medical negligence of the defendant-appellees, Dr. Kevin R. Fitzgerald, Mrs. Schirmer's obstetrician, his employer, Mt. Auburn Obstetrics and Gynecologic Associates, Inc., Children's Hospital Medical Center ("CHMC"), Martha Walker, M.S., and Howard M. Saal, M.D., who conducted genetic testing during Mrs. Schirmer's pregnancy. The issue is what damages parents of a child born with birth defects are entitled to recover where their reliance on negligent genetic testing and medical advice deprived them of the information necessary to decide whether to terminate the pregnancy. We hold that because of the close causal nexus alleged between the medical negligence and the genetic harm to the Schirmers' child, and because of the absence of the need to calculate the value of nonbeing in determining the amount of damages, the allegations in the Schirmers' complaint state a valid medical claim. The measure of their damages is limited to those consequential, economic damages of raising their disabled child over and above the ordinary child-rearing expenses. But we hold that the Schirmers are not entitled to an award for non-economic damages. Therefore, the Schirmer's assignment of error is sustained in part and overruled in part.


{¶2} In their complaint, the Schirmers alleged that genetic testing, conducted after previous unsuccessful pregnancies, disclosed that Mrs. Schirmer carried a balanced translocation of chromosomes 11 and 22. Although it caused her no harm, there was a one-third chance that she would pass the unbalanced form of the translocation to her child. A child carrying the unbalanced translocation could have a "third" or extra chromosome 22—a partial trisomy 22. This condition would cause serious birth defects. During Mrs. Schirmer's pregnancy, she instructed the defendants to do all necessary testing to determine if her fetus carried this genetic defect. The results of the testing would have permitted the Schirmers to decide whether to terminate the pregnancy rather than to bring a severely mentally and physically disabled child into the world.

{¶3} The defendants ordered and conducted a chorionic villus sampling (CVS) test that was the recognized and accepted test to determine the genetic makeup of a fetus by sampling fetal cells. The test result indicated that the fetus was probably a female with the same balanced chromosome translocation as the mother. If, however, the test had incorrectly sampled Mrs. Schirmer's own tissue rather than the tissue of the fetus, the results of the CVS would not have accurately determined the genetic makeup of the fetus. The Schirmers alleged that the defendants were negligent in not taking the further steps necessary to validate the CVS test results.

{¶4} On September 9, 1997, Mrs. Schirmer gave birth to a son, Matthew. Matthew, who is not party to this action, inherited a partial trisomy of chromosome 22 from his mother and is profoundly mentally and physically disabled. He requires round-the-clock care.

{¶5} The Schirmers brought suit, claiming that because of the negligent medical advice and testing of the defendants, they were precluded from making an informed decision about whether to proceed with the pregnancy and a delivery that would result in a severely disabled child. They sought damages for (1) the costs related to the pregnancy; (2) economic, consequential losses—the costs of raising and supporting the disabled child; and (3) non-economic consequential losses—the emotional and physical injuries resulting from the added burden of raising and supporting the disabled child.


{¶6} In March 2002, each defendant filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted pursuant to Civ.R. 12(B)(6). Each argued that Ohio did not recognize the tort of "wrongful birth." Dr. Fitzgerald also argued that if a wrongful-birth claim existed, the Schirmers' damages were limited to their pregnancy-related costs. The trial court overruled the motions to dismiss, stating it was unable to determine whether the Ohio Supreme Court would "allow an action for `wrongful birth.'"

{¶7} Afterwards, each defendant filed a motion for partial summary judgment on the scope of damages only, seeking a ruling by the trial court that the Schirmers were limited to damages only for pregnancy-related costs.

{¶8} The Schirmers subsequently urged, pursuant to Civ.R. 56(F), that the trial court should postpone its ruling on factual determinations regarding the damages issue. They argued that although the defendants' motions were styled as motions for partial summary judgment, they had not raised factual disputes, but, instead, had maintained only that Ohio law did not recognize the consequential damages that they were seeking. They argued that the defendants' motions were more properly considered as motions to dismiss made pursuant to Civ.R. 12(B)(6). The trial court agreed to postpone factual determinations in connection with the pending partial motions for summary judgment, stating that "the Court will rule on the legal question of what element of damages may be sought in a wrongful birth case."

{¶9} On December 19, 2002, the trial court journalized an entry in which it recorded various stipulations by the parties and entered judgment. First, the Schirmers consented not to seek damages for the pregnancy-related costs. Second, all parties consented to the trial court "treating the pending motions for partial summary judgment as motions to dismiss the remaining elements of Plaintiffs' case for failure to state a cognizable claim." Third, the parties stipulated that the trial court's ruling on the pending motions "shall constitute a ruling on questions of law pertaining to the scope of recoverable damages in a `wrongful birth' action." The trial court then held that the Schirmers could bring a wrongful-birth action, but that Ohio law permitted recovery only for the pregnancy-related costs, and not for either economic or non-economic consequential damages. Since the Schirmers had voluntarily agreed not to seek pregnancy-related damages, the trial court dismissed the complaint.

{¶10} A party may move for partial summary judgment. Civ.R. 56(C) and (D) envision a situation where summary judgment is not rendered upon the whole case or for all the relief asked, and where a trial may be necessary on the remaining controverted facts. See Holeski v. Lawrence (1993), 85 Ohio App.3d 824, 621 N.E.2d 802. An entry of partial summary judgment must specify the uncontroverted material facts upon which the decision is based. See Civ.R. 56(D); see, also, Couto v. Gibson, Inc. (1990), 67 Ohio App.3d 407, 587 N.E.2d 336.

{¶11} But there is no provision in the Civil Rules for converting motions for partial summary judgment into motions to dismiss, even by agreement of the parties. A trial court's ruling on summary judgment must be addressed to the evidence properly before it. See Civ.R. 56(C) and (E).

{¶12} When, however, a court dismisses a complaint pursuant to Civ.R. 12(B)(6), it makes no factual findings beyond its legal conclusion that the complaint fails to state a claim upon which relief can be granted. The court does not assume the role of fact finder. See State ex rel. Drake v. Athens Cty. Bd. of Elections (1988), 39 Ohio St.3d 40, 528 N.E.2d 1253. Here, the trial court by its own terms, and with the consent of the parties, ruled, without reviewing the evidence, on whether the Schirmers' complaint stated claims for which relief could be granted under Ohio law. We, therefore, construe the trial court's December 19, 2002, entry to be a ruling on renewed motions for dismissal made in accordance with Civ.R. 12(B)(6).


{¶13} To affirm a dismissal pursuant to Civ.R. 12 (B)(6), an appellate court must conclude that it appears "beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery." O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 327 N.E.2d 753, syllabus; see, also, State ex rel. Williams Ford Sales, Inc. v. Connor (1995), 72 Ohio St.3d 111, 647 N.E.2d 804; York v. Ohio State Highway Patrol (1991), 60 Ohio St.3d 143, 573 N.E.2d 1063. Those facts that may be so significant as to entitle the Schirmers to recovery are determined by the substantive law in Ohio.


{¶14} The Schirmers' claim is commonly termed "wrongful birth." Wrongful-birth claims are brought by the parents of a child born with birth defects. They allege that, due to negligent medical advice or testing, the parents were precluded from making an...

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