Simmons v. West Covina Medical Clinic, B035667

• Court: California Court of Appeals
• Writing for the Court: ORTEGA; L. THAXTON HANSON; SPENCER
• Citation: 212 Cal.App.3d 696,260 Cal.Rptr. 772
• Parties: Brennan SIMMONS, a Minor, etc., et al., Plaintiffs and Appellants, v. WEST COVINA MEDICAL CLINIC, et al., Defendants and Respondents.
• Docket Number: No. B035667,B035667
• Decision Date: 27 July 1989

Page 772

260 Cal.Rptr. 772

212 Cal.App.3d 696

Brennan SIMMONS, a Minor, etc., et al., Plaintiffs and Appellants, v. WEST COVINA MEDICAL CLINIC, et al., Defendants and Respondents.

No. B035667.

Court of Appeal, Second District, Division 1, California.

July 27, 1989.

Review Denied Nov. 16, 1989.

Adel & Pollack, and Nancy P. Adel, Beverly Hills, for plaintiffs and appellants

Hagenbaugh & Murphy, Mary E. Porter, Los Angeles, and John R. Lisenbery, Palos Verdes Estates, for defendants and respondents.

California Trial Lawyers Ass'n, Ian Herzog, Santa Monica, Richard D. Aldrich, Westlake Village, Leonard Sacks, Encino, Harvey R. Levine, San Diego, Gary Gwilliam, Robert Steinberg, Douglas DeVries, Sacramento, Sanford Gage, Beverly Hills, Bruce Broillett, and Roland Wrinkle as, amici curiae on behalf of plaintiffs and appellants.

California Medical Ass'n, Horvitz & Levy, Ellis J. Horvitz, David M. Axelrad, Barry R. Levy, Encino, and M. Reed Hunter, as, amici curiae on behalf of defendants and respondents.

ORTEGA, Associate Justice.

In this case, we conclude plaintiffs mother and child have failed to establish their respective causes of action for wrongful birth and wrongful life. Even if the defendant physician had provided the expectant mother with a certain genetic test, the test's 20 percent probability of detecting the risk of Down's Syndrome falls far short of the requisite reasonable medical probability standard of causation. We affirm the summary judgment for defendants.

FACTS

Defendant Suneetha Ali, M.D., cared for plaintiff Brenda Simmons during her pregnancy at defendant West Covina Medical Clinic. On September 29, 1986, Brenda Simmons gave birth to plaintiff Brennan Simmons, who is afflicted with Down's Syndrome. Plaintiffs filed this action against defendants for negligence, wrongful birth, and wrongful life on June 15, 1987. ¹

According to the allegations of the operative pleading, defendants negligently failed to provide Brenda Simmons with appropriate genetic testing and counseling, thus denying her the opportunity to discover the genetic defect in her unborn child. Had she learned of the abnormality, she would have terminated the pregnancy.

Following preliminary procedural matters, defendants moved for summary judgment, contending plaintiffs as a matter of law cannot prove defendants' negligence caused the harm. For the purpose of their motion only, defendants conceded they were negligent in failing to advise Brenda Simmons concerning the genetic test known as the maternal serum Alpha Fetoprotein test (AFP test). However, defendants argued their negligence did not proximately cause Brennan Simmons to be born, because the AFP test provides only a 20 percent probability of detecting the risk of Down's Syndrome.

The record contains the following uncontroverted evidence concerning the AFP test. Section 6527 of chapter 17 of the Code of Administrative Regulations, enacted in April 1986 pursuant to section 289.7 of the Health and Safety Code, requires clinicians to advise all pregnant women in their care of the availability of the AFP test for "pre-natal screening of neural tube defects of the fetus." This information must be given at the woman's first prenatal visit, provided she is within the first 20 weeks of gestation. The AFP test, which involves taking the woman's blood sample, is performed on a voluntary basis between the 16th and 20th week of gestation.

In 1979, when the Legislature directed the Department of Health Services to develop AFP test regulations, the test was known to identify fetal neural tube defects such as spina bifida and anencephaly. It was only later, in 1984, that a possible association was reported between low maternal serum AFP and Down's Syndrome. Approximately 20 percent of pregnant women under the age of 35 who are at risk with respect to Down's Syndrome will be identified through the test. However, about 80 percent of women in that age group who are at risk will not be identified through the AFP test.

When the AFP test discloses a risk of Down's Syndrome, the pregnant woman is referred for a second test, known as an amniocentesis test. This involves the withdrawal and testing of amniotic fluid from the sac in which the unborn child rests in the mother, and carries a higher risk of injury to the mother and fetus than does the AFP test. Currently, pregnant women under the age of 35 are not routinely given the amniocentesis test. Accordingly, for these women, the AFP test is the only commonly used method to identify the risk of Down's Syndrome.

The trial court granted defendants' motion for summary judgment, finding defendants did not proximately cause the harm since there was a less than 50 percent chance the AFP test would have detected the risk of Down's Syndrome. Plaintiffs appeal from the summary judgment.

ISSUES

We must decide whether (1) defendants have demonstrated as a matter of law that they did not proximately cause the harm because even with an AFP test there was no reasonable medical probability of discovering the risk of Down's Syndrome, and (2) whether plaintiffs should nevertheless be compensated for losing their less than even chance of avoiding the harm.

DISCUSSION

1. Causation

Summary judgment, a drastic procedure which denies the adverse party the right to a trial on the merits, should be granted with caution. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35, 210 Cal.Rptr. 762, 694 P.2d 1134.) Summary judgment should only be granted when the evidence in support of the moving party establishes that there is no issue of fact to be tried. (Code Civ.Proc., § 437c.) The moving party bears the burden of furnishing supporting documents to establish the adverse party's claims lack merit under any legal theory. (Lipson v. Superior Court (1982) 31 Cal.3d 362, 374, 182 Cal.Rptr. 629, 644 P.2d 822.) The court will strictly construe the moving party's affidavits, while liberally construing those of the adverse party. (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.) Any doubt concerning the propriety of granting the motion should be California recognizes a parent's cause of action for the wrongful birth of a genetically deformed child where the physician negligently failed to inform the parent of the risk of bearing such a child. (Turpin v. Sortini, supra, 31 Cal.3d at pp. 225, 239, 182 Cal.Rptr. 337, 643 P.2d 954.) California also recognizes a cause of action for wrongful life by the genetically deformed child. (Ibid.) But in most jurisdictions, recovery by the genetically deformed child "has been uniformly denied on the dual grounds that (a) a legal remedy contradicts the fundamental belief that human life has value, and (b) measuring damages by comparison of an impaired life with nonexistence is impossible. [Citations.]" (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 797, p. 143.)

resolved in favor of the adverse party. (Ibid.)

In a successful wrongful birth and wrongful life action, the parents may recover for medical and extraordinary teaching and training expenses incurred during the child's minority, but the child may not also recover for those same expenses. (Turpin v. Sortini, supra, 31 Cal.3d at p. 238, 182 Cal.Rptr. 337, 643 P.2d 954.) The child may recover medical expenses and special damages where the parents are unavailable to sue or where the expenses are incurred beyond the time of the parents' legal responsibility for such care. (Ibid.) However, the child may not recover for pain and suffering and other general damages (id. at pp. 238-239, 182 Cal.Rptr. 337, 643 P.2d 954), such as loss of earning capacity (Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 614, 208 Cal.Rptr. 899.)

As in ordinary medical malpractice cases, the plaintiffs in a wrongful life and wrongful birth case must establish the following basic elements: "(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence." (Budd v. Nixen (1971) 6 Cal.3d 195, 200, 98 Cal.Rptr. 849, 491 P.2d 433; Turpin v. Sortini, supra, 31 Cal.3d at pp. 229-230, 182 Cal.Rptr. 337, 643 P.2d 954.) The sole element at issue here is that of proximate cause.

Under the above described principles in California, plaintiffs cannot recover where there is only a mere possibility the defendant's negligence caused the wrong. (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403, 209 Cal.Rptr. 456; Morgenroth v. Pacific Medical Center, Inc. (1976) 54 Cal.App.3d 521, 533, 126 Cal.Rptr. 681.) In this case, the undisputed evidence shows the AFP test would have provided only a 20 percent chance of uncovering Brenda Simmons' risk of giving birth to a child with Down's Syndrome. Defendants contend there is thus no "reasonable medical probability based upon competent expert testimony" (Jones v. Ortho Pharmaceutical Corp., supra, 163 Cal.App.3d at p. 402, 209 Cal.Rptr. 456), that their failure to provide the AFP test deprived Brenda Simmons of the opportunity to terminate her pregnancy. We agree.

As stated in Jones v. Ortho Pharmaceutical Corp., supra, 163 Cal.App.3d 396, 209 Cal.Rptr. 456, there exists an obvious distinction between a reasonable medical probability and a medical possibility. (Id. at p. 403, 209 Cal.Rptr. 456.) There can be many, even an infinite number of possible circumstances which can produce an injury. But a "possible cause only becomes 'probable' when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury. [Citation.]" (Ibid.)

The undisputed evidence in this case...