Simmerer v. Dabbas, No. 99-1570.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: COOK, J.
• Citation: 89 Ohio St.3d 586,733 NE 2d 1169
• Parties: SIMMERER ET AL., APPELLANTS, v. DABBAS, APPELLEE, ET AL.
• Docket Number: No. 99-1570.
• Decision Date: 06 September 2000

89 Ohio St.3d 586
733 NE 2d 1169

SIMMERER ET AL., APPELLANTS,
v.
DABBAS, APPELLEE, ET AL

No. 99-1570.

Supreme Court of Ohio.

Submitted May 10, 2000.

Decided September 6, 2000.

89 Ohio St.3d 587

Perantinides & Nolan Co., L.P.A., Paul G. Perantinides and Christopher L. Parker, for appellants

Weston Hurd Fallon Paisley & Howley L.L.P., Mark O'Neill and Gary A. Vick, for appellee.

COOK, J.

The question raised by this case is whether damages associated with parenting a child born with a birth defect are recoverable in a wrongful pregnancy action stemming from a negligently performed sterilization procedure, when the doctor who performed the unsuccessful sterilization procedure could not have reasonably foreseen the birth defect. We hold that they are not.

I. Classification of This Action

To put this case in context, we first categorize the typical birth-based medical malpractice actions. In a wrongful pregnancy action, one or both parents of a child born following a negligently performed sterilization procedure bring suit for the costs of having an unplanned child. Johnson v. Univ. Hosp. of Cleveland (1989), 44 Ohio St.3d 49, 51, 540 N.E.2d 1370, 1372. Most United States jurisdictions recognize this cause of action. Smith-Groff, Wrongful Conception: When an Unplanned Child Has a Birth Defect, Who Should Pay the Cost? (1996), 61 Mo.L.Rev. 135, 138. In a wrongful birth action, the parents of an unhealthy child born following negligent genetic counseling or negligent failure to diagnose a fetal defect or disease bring suit for the costs of having to raise and care for an impaired child, arguing that they were wrongfully deprived of the ability to avoid or terminate a pregnancy to prevent the birth of a child with the defect or disease. Johnson, 44 Ohio St.3d at 51, 540 N.E.2d at 1372. The legitimacy of this cause of action has not yet been addressed by this court, but has been recognized by Ohio's Fourth District Court of Appeals in Flanagan v. Williams (1993), 87 Ohio App.3d 768, 623 N.E.2d 185. Finally, in a wrongful life action, an unhealthy child born following either a negligently performed sterilization of one of his or her parents¹ or negligent genetic counseling or testing² argues that he or she has been damaged by being born at all. This court has rejected this cause of action,³ as have most other jurisdictions.⁴

89 Ohio St.3d 588

The parties here seem to agree in the briefing to this court, and we concur, that this case is an action sounding in wrongful pregnancy only, based on the definitions outlined above. The only negligence alleged is that Dabbas failed to sterilize Theresa though he attempted to perform a sterilization procedure. The fact that Steven was not born healthy does not convert this action into one for wrongful birth, as we have defined that (consistent with the weight of authority) as involving negligent genetic counseling or negligent failure to diagnose a fetal defect

II. Law and Discussion

Across the United States, courts have recognized four general theories of recovery in wrongful pregnancy cases. They are (1) full recovery, which includes pregnancy-related damages as well as reasonable child-rearing costs, (2) limited damages, in which only damages related to the failed sterilization, pregnancy, and birth are recoverable, (3) the benefits rule, which allows full recovery offset by the benefits to the parent(s) of having and raising the child, and (4) no recovery. Johnson, supra, 44 Ohio St.3d at 52-57, 540 N.E.2d at 1372-1377; Simmons, Zehr v. Haugen and the Oregon Approach to Wrongful Conception: An Occasion for Celebration or Litigation? (1995), 31 Willamette L.Rev. 121, 127-135.

In Johnson, where we considered the birth of a healthy child following a negligent sterilization, this court adopted a limited-damages rule for wrongful pregnancy actions in Ohio. Johnson, supra, at paragraph two of the syllabus. We held that the plaintiffs could recover the medical costs of the pregnancy and delivery, damages for emotional distress due to pregnancy, lost wages due to pregnancy, damages for the husband's loss of consortium during pregnancy, and damages for the mother's pain and suffering during pregnancy and delivery. Id. at 58-59, 540 N.E.2d at 1378, fn. 8. Our decision foreclosed recovery of the costs of raising the child, however, given "Ohio's public policy that the birth of a normal, healthy child cannot be an injury to her parents." Id. at paragraph two of the syllabus.

The Simmerers invite this court to expand the damages recoverable in a wrongful pregnancy action when the resulting child is born with birth defects, as Steven was. They argue that, even if, under Johnson, normal child-rearing costs are not recoverable, they are entitled to recover the extraordinary costs and damages associated with Steven's heart defect. Dabbas, on the other hand, argues that this court should follow the reasoning in Simmons v. Hertzman (1994), 99 Ohio App.3d 453, 651 N.E.2d 13, in which the First District Court of Appeals held that the plaintiffs, who had given birth to a child with severe abnormalities, could not recover the extraordinary costs associated with raising that child because (1) child-rearing costs are not recoverable regardless of whether a child is "healthy" or "abnormal," because everyone has some kind of

89 Ohio St.3d 589

abnormality and, hence, the distinction is too difficult to draw, and (2) the negligent sterilization did not proximately cause the child's abnormalities. Id. at 458-459, 651 N.E.2d at 17

The majority rule favors Dabbas's position. It is axiomatic that a medical negligence claim requires a showing of duty, breach of that duty, and damages proximately caused by the breach. See Hester v. Dwivedi (2000), 89 Ohio St.3d 575, 578, 733 N.E.2d 1161, 1164. Courts deciding cases like this one have generally held that, although a negligently performed sterilization is a proximate cause of a...