Smith v. Gore

• Citation: 39 Ed.LawRep. 393,728 S.W.2d 738
• Decision Date: 13 April 1987
• Docket Number: No. S,S
• Parties: 39 Ed. Law Rep. 393 Becky Ann SMITH, Plaintiff-Appellant, v. Arthur GORE, M.D., et al., Defendants-Appellees. /C 233
• Court: Supreme Court of Tennessee

Page 738

728 S.W.2d 738

39 Ed. Law Rep. 393

Becky Ann SMITH, Plaintiff-Appellant, v. Arthur GORE, M.D., et al., Defendants-Appellees.

No. S/C 233

Supreme Court of Tennessee,

at Knoxville.

April 13, 1987.

Sidney Gilreath, Donna R. Davis, Gilreath & Associates, Knoxville, for plaintiff-appellant.

Edward G. White, II, Jonathan H. Burnett, Hodges, Doughty & Carson, Knoxville, for Arthur Gore, John David and James Alexander.

Darryl G. Lowe, Lowe & Shirley, Knoxville, for the University of Tennessee Memorial Hosp.

Jack B. Draper, Arnett, Draper & Hagood, Knoxville, for Gynecol, Inc.

OPINION

DROWOTA, Justice.

Permission to Appeal from a Rule 9, T.R.A.P., interlocutory opinion of the Court of Appeals has been granted in this case to address an issue of first impression in Tennessee. That issue concerns the scope of damages recoverable by a plaintiff in an action for wrongful pregnancy. In its present interlocutory posture, the issue is necessarily limited and the allegations of Plaintiff's Complaint are thus taken as true for the narrow purpose of this appeal. The Plaintiff in this case is Becky Ann Smith. Defendants are Arthur Gore, Tom Traylor, James Alexander, John David, all medical doctors, the University of Tennessee Memorial Hospital, and Gynecol, Inc., a California corporation doing business in this State and subject to Tennessee longarm jurisdiction.

Plaintiff is 25 years old, divorced (before December, 1982), and has a ninth grade education; she lives in East Tennessee. From 1979 through 1982, she worked at a drive-in restaurant as a waitress and cook, earning less than $5000 a year. Prior to 1982, she had two children; however, on December 9, 1982, she gave birth by caesarean section to twins at the University of Tennessee Memorial Hospital, at which time she also underwent a preplanned tubal ligation for permanent sterilization. The sterilization technique employed is known as a Bleier Secuclip, which is manufactured by Gynecol, Inc. Shortly after the birth of the twins, she resumed working part-time, earning a net income of $60 per week. At about the time she was to return to full-time employment, she was informed on April 9, 1983, that she was pregnant with her fifth child, due in December, 1983. Due to problems with her pregnancy, she was subsequently forced to quit working part-time. On December 20, 1983, Plaintiff gave birth to a healthy, normal baby boy, her fifth child.

The Complaint in this case was filed on December 8, 1983, naming the doctors who had performed the failed tubal ligation, the hospital, and the manufacturer of the Bleier Secuclip as Defendants. In her Complaint, she alleged that the sterilization procedure failed as a result of the negligence of the doctors and hospital; her claim against the manufacturer was predicated on failure to warn and breach of warranties. Recovery was sought for damages of emotional distress, loss of income, medical expenses, and the expenses of rearing the child to majority. Defendants filed their Answers and subsequently filed Motions to Dismiss for failure to state a claim for the recovery of the rearing expenses of a normal, healthy child. In her Amended Complaint filed September 18, 1984, Plaintiff specifically excluded the costs of prenatal care and of the delivery of the child from the damages but sought punitive damages from two of the Defendants. On March 1, 1985, the trial court held a hearing on the Defendants' Motions to Dismiss. An order denying these Motions was entered on March 21, 1985, but the trial court expressly permitted Defendants to seek a Rule 9, T.R.A.P., appeal on this issue.

The Court of Appeals granted Defendants' Rule 9 Application for an Interlocutory Appeal. Finding that the expenses of raising a healthy and normal child were not recoverable, the Eastern Section reversed the trial court's ruling and held that damages were limited to those immediately related to the pregnancy and birth of the child. The rationale of the Court of Appeals was that the rearing of a normal child is not a legally cognizable injury as a matter of policy and law in Tennessee. Plaintiff then timely applied to this Court for Permission to Appeal, which was granted. We now affirm the Court of Appeals, although on different grounds. The issue in this appeal is limited to the scope of damages that may generally be recovered in an action such as this.

I. The Nature of the Action

Numerous cases have been reported concerning the type of action involved in the case. These cases have been variously denominated "wrongful birth," "wrongful pregnancy or conception," and "wrongful life," but some consensus seems to be emerging that several distinct causes of action are represented by these terms, see generally Stein, Damages and Recovery (Lawyers Co-Operative 1972), § 221.2, at 256 (Supp.1986):

1. Wrongful pregnancy or conception is an action brought by the parents on their own behalf to recover damages resulting from a failed pregnancy avoidance technique (e.g., vasectomy, tubal ligation, abortion, misfilled birth control prescription, etc.); usually the resulting child is healthy. See, e.g., Miller v. Johnson, 231 Va. 177, 343 S.E.2d 301 (1986); Garrison v. Foy, 486 N.E.2d 5 (Ind.App.1985); Nanke v. Napier, 346 N.W.2d 520 (Iowa 1984); Weintraub v. Brown, 98 A.D.2d 339, 470 N.Y.S.2d 634 (1983); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977).

2. Wrongful birth is an action by the parents on their own behalf to recover damages for the birth of an impaired child when the impairment results either from an act or omission of the defendant or because the defendant failed to diagnose or discover a genetic defect (e.g., genetic counselling, failure to perform readily available diagnostic tests, etc.) in the parents or the infant in time to obtain a eugenic abortion or to prevent pregnancy altogether. See, e.g., James G. v. Caserta, 332 S.E.2d 872 (W.Va.1985) (Involving two causes of actions); Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 656 P.2d 483 (1983) (En banc ); Naccash v. Burger, 223 Va. 406, 290 S.E.2d 825 (1982); Stribling v. deQuevedo, 288 Pa.Super. 436, 432 A.2d 239 (1980); Howard v. Lecher, 42 N.Y.2d 109, 397 N.Y.S.2d 363, 366 N.E.2d 64 (1977); Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967).

3. Wrongful life is that action brought on behalf of an impaired child to recover damages for having been born with defects due to an act or omission of defendant. See, e.g., Turpin v. Sortini, 31 Cal.3d 220, 182 Cal.Rptr. 337, 643 P.2d 954 (1982) (En banc ); Curlender v. Bio-Science Laboratories, 106 Cal.App.3d 811, 165 Cal.Rptr. 477 (1980); Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978); Elliott v. Brown, 361 So.2d 546 (Ala.1978).

This case is best considered as a wrongful pregnancy action, and as such the opinion is limited to those situations in which the parents are suing to recover damages to their interests; this case does not involve an impaired child and thus we do not address the scope of damages available for the birth of an impaired infant. The damages that may be recovered in this case must of course ultimately depend on the evidence at trial. We express no opinion as to the outcome of this suit.

II. Theories of Recovery

The cases from other States to which we have been directed by the parties or which we have discovered on our own represent a broad range of resolutions to the issue presented. Fundamentally, three distinct minority positions have developed, but of some thirty jurisdictions that have addressed this question, the majority (21) have limited damages and refused to allow any recovery of rearing expenses for a normal, healthy child. The courts have rationalized their positions on a wide variety of policy grounds. These four theories of recovery are discussed here briefly.

A. No Recovery of Any Damages

When cases of this kind were first brought in the United States, courts were hesitant to recognize any cause of action at all. An early case, Christensen v. Thornby, 192 Minn. 123, 255 N.W. 620 (1934), involved a failed vasectomy. The Minnesota Supreme Court denied any tort recovery, finding that the element of causation presented an insurmountable obstacle to establishing negligence. 255 N.W. at 621-622. Subsequently, in Shaheen v. Knight, 6 Lycoming R. 19, 11 Pa.D. & C.2d 41 (1957), another court held that to permit damages for the birth of a healthy child was foreign to the popular sentiment regarding children and the family. 11 Pa.D. & C.2d at 45. Recently, at least one other court has taken the position that the birth of a normal child "is an event which, of itself, is not a legally compensable injurious consequence even if the birth is partially attributable to the negligent conduct of someone purporting to be able to prevent the eventuality of child birth." Szekeres v. Robinson, 715 P.2d 1076, 1078 (Nev.1986). Although apparently refusing to recognize the tort of wrongful pregnancy, the Nevada Supreme Court did distinguish a case involving a healthy child from that of an impaired child. 715 P.2d at 1078 n. 2. Moreover, the Court permitted the case to go to trial on the theory of breach of contract. 715 P.2d at 1079.

The harsh result of the earliest cases has since been renounced in Pennsylvania and Minnesota, ¹ and that of the Nevada case was ameliorated to some extent, at least in that case, by permitting a breach of contract claim. So far as we can find, these are the only three cases entirely denying tort recovery at all. Only Nevada has continued to adhere to this absolutist position. ²

B. Recovery of Full Damages

States that have permitted recovery of the expenses of rearing a normal child are about as few as those denying any damages. The earliest full recovery case is considered to be Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463 (1967). The California Court of Appeals, applying general tort principles and finding that a child could only be considered a...