Sherlock v. Stillwater Clinic

• Court: Minnesota Supreme Court
• Writing for the Court: ROGOSHESKE; SHERAN; PETERSON; OTIS; WAHL
• Citation: Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn. 1977)
• Decision Date: 14 October 1977
• Docket Number: No. 46347,46347
• Parties: Eugene SHERLOCK, et al., Respondents, v. STILLWATER CLINIC, a Partnership Composed of Jon R. Stratte, J. E. Jensen, M.F. Juergens, Neil M. Bealka, Thomas Murphy, R. Powell and P. M. Spilseth, Appellants.

Page 169

260 N.W.2d 169

Eugene SHERLOCK, et al., Respondents, v. STILLWATER CLINIC, a Partnership Composed of Jon R. Stratte J. E. Jensen, M.F. Juergens, Neil M. Bealka Thomas Murphy, R. Powell and P. M Spilseth, Appellants.

No. 46347.

Supreme Court of Minnesota.

Oct. 14, 1977.

Rehearing Denied Dec. 13, 1977.

Syllabus by the Court

In an action for compensable damages for the birth of a normal, healthy child proximately caused by a negligently performed sterilization operation for the purpose of preventing conception, damages may be recovered by the parents of the child for prenatal and postnatal medical expenses, the mother's pain and suffering during pregnancy and delivery, loss of consortium, and additionally, the reasonable costs of rearing the unplanned child subject to offsetting this item of damages by the value of the child's aid, comfort, and society during the parents' life expectancy.

Altman, Geraghty, Mulally & Weiss and James W. Kenney, St. Paul, for appellants.

Robins, Davis & Lyons and John F. Eisberg and Paul L. Gingras, St. Paul, for respondents.

Considered and decided by the court en banc.

ROGOSHESKE, Justice.

The principal question raised on this appeal is whether and to what extent compensable damages may be recovered for the birth of a normal, healthy child proximately caused by a negligently performed sterilization operation. We hold that in cases such as this an action for "wrongful conception" may be maintained, and that compensatory damages may be recovered by the parents of the unplanned child. These damages may include all prenatal and postnatal medical expenses, the mother's pain and suffering during pregnancy and delivery, and loss of consortium. Additionally, the parents may recover the reasonable costs of rearing the unplanned child subject to offsetting the value of the child's aid, comfort, and society during the parents' life expectancy. Because of errors in the submission of the issue of damages to the jury in this case, we remand for a new trial limited to that issue.

Following the birth of their seventh child in August 1970, Mr. and Mrs. Eugene Sherlock consulted Dr. Jon Stratte, a member of the Stillwater Clinic, and discussed with him the various medical alternatives available to them to ensure that their family would grow no larger. A decision was reached that Mr. Sherlock would undergo a vasectomy, which operation was subsequently performed by Dr. Stratte at the clinic on December 11, 1970. The Sherlocks were advised at the time of the operation that they should either refrain from sexual relations or take additional contraceptive measures until it was conclusively determined by postoperative testing that Mr. Sherlock's semen was free of sperm.

On January 23, 1971, Mr. Sherlock brought a sample of his semen to the Stillwater Clinic for testing. Later that same day, Dr. Stratte telephoned Mr. Sherlock and informed him that the results of the test were "negative." Mr. Sherlock further testified that Dr. Stratte did not advise him to return for additional testing, nor was there any discussion concerning the need for the continued use of contraceptives. In fact, the January 23 test revealed that Mr. Sherlock's semen had a sperm density of 5 to 10 sperm cells per high-powered microscope field and that 50 percent of these were motile. Although Dr. Stratte testified to having no recollection of the telephone conversation with Mr. Sherlock, he was permitted to testify that, based upon his usual habit, he would have told Mr. Sherlock that the presence of live sperm cells meant that he was not yet sterile, and that he should bring a second sample in 2 to 3 weeks.

Relying on the erroneous belief that the operation had been successful, the Sherlocks resumed normal sexual relations without contraceptives. To their consternation, Mrs. Sherlock began to miss her menstrual periods several months later. On August 5, 1971, Mr. Sherlock returned to the clinic for a second test, and this time he was correctly advised that the vasectomy had been ineffective. The following day, it was determined that Mrs. Sherlock was pregnant, and in due course she delivered a healthy baby boy on March 6, 1972.

The Sherlocks thereafter brought suit against defendants, claiming that their eighth child's unplanned birth was a direct result of Dr. Stratte's negligent postoperative care of Mr. Sherlock. ¹ Damages were sought for medical expenses incident to the birth, in addition to the pain and suffering caused to Mrs. Sherlock during her pregnancy and delivery, Mr. Sherlock's loss of consortium, and the costs of supporting and educating the child until the age of majority. Despite the perplexing and developing nature of the law relating to damages in cases of this type, the lawsuit was tried as an ordinary medical negligence action and submitted to the jury upon general negligence instructions. The jury returned a general verdict for $19,500, and defendants' post-trial motions for a new trial or judgment notwithstanding the verdict were denied. Defendants now challenge this award, principally on the grounds that the evidence was insufficient to support the verdict and that the verdict was contrary to law. ²

In reviewing the sufficiency of the evidence to support a jury verdict, it is fundamental that we may not substitute our judgment on disputed questions of fact. This position was succinctly set forth in Gibeau v. Mayo,280 Minn. 170, 175, 158 N.W.2d 589, 592 (1968):

" * * * Where the resolution of a disputed fact issue turns largely upon an assessment of the relative credibility of witnesses whose testimonial demeanor was observed only by the jury and the trial court and the latter has approved the finding made, we are obliged to affirm even though we might have reached a contrary finding."

See, also, Hestad v. Pennsylvania Life Ins. Co., 295 Minn. 306, 204 N.W.2d 433 (1973). Given this stringent standard of review, we hold that the jury could justifiably have concluded that Dr. Stratte negligently informed Mr. Sherlock that his test results were negative, and that the unwanted conception and subsequent birth of the Sherlocks' eighth child were a direct result of this negligence.

Prior to 1967, few courts had considered the question of whether the parents of an unplanned child could maintain an action against a physician for an improperly performed sterilization operation and, if so, the extent to which the compensatory damages were recoverable. The first of what were later to become known as the "wrongful birth" ³ cases was decided by this court in Christensen v. Thornby, 192 Minn. 123, 255 N.W. 620, 93 A.L.R. 570 (1934). In that case the plaintiff had undergone a vasectomy after his wife had experienced great difficulty in giving birth to her first child. When his wife subsequently became pregnant and delivered her second child, the plaintiff brought suit for his "anxiety and expenses" incident to the birth, claiming that the physician who had performed the vasectomy had deceived him into believing that the operation had been successful. The trial court sustained a demurrer to the complaint, and on appeal we affirmed on the ground that the plaintiff had failed to allege that the false representation was made with fraudulent intent sufficient to support his allegation of deceit. Apart from the technical disposition made in this case, we expressly held that sterilizations were not contrary to public policy and that an action, if properly pleaded, could be maintained against a physician for the improper performance of such an operation. ⁴

Viewed in its correct posture, the Christensen case stands solely for the proposition that a cause of action exists for an improperly performed sterilization. The more troublesome question of damages once liability on the part of a physician is established was neither raised nor directly considered. Nevertheless, the following dicta from the Christensen opinion was later relied on by other courts to preclude parents from recovering damages for the economic costs of an unplanned child (192 Minn. 126, 255 N.W. 622, 93 A.L.R. 572):

" * * * (T)he plaintiff has been blessed with the fatherhood of another child. The expenses alleged are incident to the bearing of a child, and their avoidance is remote from the avowed purpose of the operation. As well might the plaintiff charge defendant with the cost of nurture and education of the child during its minority."

In the years which followed the Christensen case, courts and commentators developed several theories to support the view that, as a matter of public policy, parents should not be permitted to recover damages for the birth of a healthy child, even though the infant may have been unplanned or unwanted at the time of conception. Perhaps the most fundamental argument was that the allowance of damages would be antithetical to the historically conceived purpose of marriage. As expressed by the court in Shaheen v. Knight, 6 Lyc. 19, 23, 11 Pa.D. & C.2d 41, 45 (1957):

" * * * The great end of matrimony is not the comfort and convenience of the immediate parties, though these are necessarily embarked in it; but the procreation of a progeny having a legal title to maintenance by the father * * * ."

Equally disturbing to the court in the Shaheen case, where the only damages asked were the expenses of rearing the child, was the injustice of requiring a negligent physician to pay for all the economic costs of an unplanned child while the parents derived all the joy, affection, and satisfaction from rearing the child. It was also argued that an action for damages should not be countenanced since it would have the effect of reducing the child to an "emotional bastard" when he inevitably learned that his birth was attributable to a doctor's negligence and not his parents' desires. Finally, a number of courts took the position that any damage caused to the parents was more than offset by the intangible benefits...