Smith v. Cote
| Citation | 128 N.H. 231,513 A.2d 341 |
| Decision Date | 09 July 1986 |
| Docket Number | No. 85-015,85-015 |
| Parties | , 55 USLW 2071 Heather B. SMITH b/m/n/f Linda J. Smith and Linda J. Smith, v. Norman R. COTE, M.D. |
| Court | New Hampshire Supreme Court |
Brown and Nixon P.A., Manchester (Frank E. Kenison on brief and orally), for plaintiffs.
Wadleigh, Starr, Peters, Dunn & Chiesa, Manchester (Gregory G. Peters & a. on brief, and Theodore Wadleigh orally), for defendants.
In this interlocutory transfer of questions arising in a medical malpractice case, we address for the first time two difficult and troubling areas of the law of prenatal torts: wrongful birth and wrongful life.
The transferred record discloses the following facts. Plaintiff Linda J. Smith became pregnant early in 1979. During the course of her pregnancy Linda was under the care of the defendants, physicians who specialize in obstetrics and gynecology. Linda consulted the defendants on April 8, 1979, complaining of nausea, abdominal pain and a late menstrual period. The defendants prescribed Keflex, an antibiotic, and recommended that Linda undergo a pregnancy test if her menstrual period did not begin. Two days later, Linda again consulted the defendants, complaining of an itchy rash and a slight fever. The defendants diagnosed Linda's condition as an allergic reaction to Keflex. Some time thereafter, the defendants determined that she was pregnant.
On August 3, 1979, nearly four months after the April visits, Linda underwent a rubella titre test at the direction of the defendants. The test indicated that Linda had been exposed to rubella. At the time the test was performed, Linda was in the second trimester of pregnancy.
Linda brought her pregnancy to full term. On January 1, 1980, she gave birth to a daughter, Heather B. Smith, who is also a plaintiff in this action. Heather was born a victim of congenital rubella syndrome. Today, at age six, Heather suffers from bilateral cataracts, multiple congenital heart defects, motor retardation, and a significant hearing impairment. She is legally blind, and has undergone surgery for her cataracts and heart condition.
In March 1984 the plaintiffs began this negligence action. They allege that Linda contracted rubella early in her pregnancy and that, while she was under the defendants' care, the defendants negligently failed to test for and discover in a timely manner her exposure to the disease. The plaintiffs further contend that the defendants negligently failed to advise Linda of the potential for birth defects in a fetus exposed to rubella, thereby depriving her of the knowledge necessary to an informed decision as to whether to give birth to a potentially impaired child. For purposes of this opinion, we will construe the writ as alleging that the acts or omissions forming the basis of this action occurred in April 1979.
The plaintiffs do not allege that the defendants caused Linda to conceive her child or to contract rubella, or that the defendants could have prevented the effects of the disease on the fetus. Rather, the plaintiffs contend that if Linda had known of the risks involved she would have obtained a eugenic abortion.
The action comprises three counts, only two of which are relevant here. In Count I, Linda seeks damages for her emotional distress, for the extraordinary maternal care that she must provide Heather because of Heather's birth defects, and for the extraordinary medical and educational costs she has sustained and will sustain in rearing her daughter. In Count II, Linda seeks damages, under the parental bystander doctrine enunciated in Corso v. Merrill, 119 N.H. 647, 406 A.2d 300 (1979), for the emotional injury, including depression, attributable to the impact of her observation of Heather's defects at and after Heather's birth. The validity of Count II is not among the transferred questions, and we express no opinion as to this aspect of the writ. In Count III, Heather seeks damages for her birth with defects, for the extraordinary medical and educational costs she will sustain, and for the impairment of her childhood attributable to her mother's diminished capacity to nurture her and cope with her problems.
The defendants moved to dismiss all three counts, contending that the plaintiffs had failed to state a claim for which relief could be granted, and that New Hampshire law does not recognize the plaintiffs' asserted causes of action. Without ruling on the motion, the Superior Court (Wyman, J.) transferred to us the following questions of law:
"A. Will New Hampshire Law recognize a wrongful birth cause of action by the mother of a wilfully conceived baby suffering from birth defects, against a physician on the grounds that the physician negligently failed to test for and discover that the mother had rubella, failed to advise the mother as to the risks of potential birth defects in a fetus exposed to rubella, and thereby deprived the mother of the information on which she would have had an abortion to prevent the birth of her deformed child, where the physician did not cause the baby's conception, and did not cause the deformities in the unborn fetus?
B. If the answer to question A is in the affirmative, will New Hampshire law allow recovery in such a cause of action for damages for emotional distress, extraordinary maternal child care, and the extraordinary medical, institutional and other special rearing expenses necessary to treat the child's impairments?
C. Will New Hampshire law recognize a cause of action for wrongful life brought by a minor child suffering from birth defects against a physician on the grounds that the physician negligently failed to test for, discover, and advise the child's mother as to the mother's having rubella and as to information concerning the potential effects of rubella on her unborn fetus, which failure allegedly caused the mother not to abort the fetus, thereby causing the plaintiff child to live and exist with mental and physical deformities?
D. If the answer to question C is in the affirmative, what general and specific damages may the child recover in such an action?"
At the outset we emphasize that in deciding this case we express no opinion as to whether the plaintiffs ultimately should prevail in this action.
We recognize that the termination of pregnancy involves controversial and divisive social issues. Nonetheless, the Supreme Court of the United States has held that a woman has a constitutionally secured right to terminate a pregnancy. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). It follows from Roe that the plaintiff Linda Smith may seek, and the defendants may provide, information and advice that may affect the exercise of that right. The basic social and constitutional issue underlying this case thus has been resolved; we need not cover ground already traveled by a court whose interpretation of the National Constitution binds us. Today we decide only whether, given the existence of the right of choice recognized in Roe, our common law should allow the development of a duty to exercise care in providing information that bears on that choice.
For the sake of terminological clarity, we make some preliminary distinctions. A wrongful birth claim is a claim brought by the parents of a child born with severe defects against a physician who negligently fails to inform them, in a timely fashion, of an increased possibility that the mother will give birth to such a child, thereby precluding an informed decision as to whether to have the child. See Phillips v. United States, 508 F.Supp. 544, 545 n. 1 (D.S.C.1981). The parents typically claim damages for their emotional distress and for some or all of the costs of raising the child. Id. We regard Count I of the plaintiffs' writ as alleging a claim for wrongful birth.
A wrongful life claim, on the other hand, is brought not by the parents of a child born with birth defects, but by or on behalf of the child. The child contends that the defendant physician negligently failed to inform the child's parents of the risk of bearing a defective infant, and hence prevented the parents from choosing to avoid the child's birth. Phillips v. United States, 508 F.Supp. 537, 538 n. 1 (D.S.C.1980). The child typically claims damages for the extraordinary medical, educational, and institutional costs that it will sustain. We regard Count III of the plaintiffs' writ as a claim for wrongful life.
We first must decide whether New Hampshire law recognizes a cause of action for wrongful birth. Although we have never expressly recognized this cause of action, we have considered a similar claim, one for "wrongful conception." In Kingsbury v. Smith, 122 N.H. 237, 442 A.2d 1003 (1982), the plaintiffs, a married couple, had had three children and wanted no more. In an attempt to prevent the conception of additional offspring, Mrs. Kingsbury underwent a tubal ligation. The operation failed, however, and Mrs. Kingsbury later gave birth to a fourth child, a normal, healthy infant. The plaintiffs sued the physicians who had performed the operation, alleging that in giving birth to an unwanted child they had sustained an injury caused by the defendants' negligence.
We held that the common law of New Hampshire permitted a claim for wrongful conception, an action "for damages arising from the birth of a child to which a negligently performed sterilization procedure or a negligently filled birth control prescription which fails to prevent conception was a contributing factor." Id. at 240, 442 A.2d at 1004 (citations omitted). We reasoned that failure to recognize a cause of action for wrongful conception would leave "a void in the area of recovery for medical malpractice" that would dilute the standard of professional conduct in the area of family planning. Id. at 242, 442 A.2d at 1005-06.
In this case, the mother contends that her wrongful birth claim fits comfortably within...
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