Sorkin v. Lee

• Decision Date: 23 December 1980
• Citation: 434 N.Y.S.2d 300,78 A.D.2d 180
• Parties: Heni SORKIN and Eric Sorkin, Appellants, v. S. LEE, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 300

434 N.Y.S.2d 300

78 A.D.2d 180

Heni SORKIN and Eric Sorkin, Appellants, v. S. LEE, Respondent.

Supreme Court, Appellate Division, Fourth Department.

Dec. 23, 1980.

Shapiro & Rosenbaum, Rochester, for appellants (Sanford Shapiro, Rochester, of counsel).

Robert J. Hirsch, P. C., Rochester, for respondent (Laura Poyzer, Macedon, of counsel).

Before CARDAMONE, J. P., and SIMONS, HANCOCK, CALLAHAN and MOULE, JJ.

SIMONS, Justice.

In 1978 plaintiffs decided, as many married couples do, to limit their family. Of the several modern methods of contraception available, they chose sterilization of the husband by vasectomy. They allege in their complaint that the doctor who performed that vasectomy did so carelessly and that as a result Mrs. Sorkin gave birth to an unplanned child. We have previously held, as have other courts, that they have a cause of action for the birth of the child if the physician's negligence caused it (see Ziemba v. Sternberg, 45 A.D.2d 230, 357 N.Y.S.2d 265; and see Deborah S. v. Sapega, 56 A.D.2d 841, 392 N.Y.S.2d 79; Chapman v. Schultz, 47 A.D.2d 806, 367 N.Y.S.2d 1018). The issue which divides this court is what elements of damage plaintiffs may properly recover.

The complaint alleges six causes of action. In the First and Fourth causes of action each parent seeks to recover the cost of caring for, and educating the child born after the abortive vasectomy, "for a period not less than 21 years". In the Second and Third causes of action the husband seeks to recover the expenses of his wife's care and treatment during pregnancy and delivery and for the loss of her services and companionship. In the Fifth cause of action the wife seeks to recover her loss of potential future earnings because she has acquired the responsibility of caring for the child. In the Sixth cause of action the wife seeks damages for pain and suffering.

We affirm Special Term's order dismissing plaintiffs' First, Fourth and Fifth causes of action. Damages may not be recovered for the normal expenses of rearing and educating a healthy but unwanted child. Such damages are not only speculative beyond realistic measurement (see Sala v. Tomlinson, 73 A.D.2d 724, 422 N.Y.S.2d 506) but in this case they were avoidable because plaintiffs do not claim that defendant's conduct prevented them from discovering the pregnancy or terminating it or that abortion was contra-indicated because of any medical condition of the mother (see Prosser, Torts (4th ed.), § 65, pp. 422-424; see also Krauth v. Richmond Mem. Hosp., 13 N.Y.2d 949, 244 N.Y.S.2d 318, 194 N.E.2d 133; cf. DuBois v. Decker, 130 N.Y. 325, 29 N.E. 313; Carpenter v. Blake, 75 N.Y. 12).

The dissenter contends that the mother's failure to abort is a matter of defense to be submitted to the jury for consideration on the question of damages. We agree that causation and mitigation are usually fact issues. But if the jury is to consider in all cases whether the mother could have and should have terminated her pregnancy, it possesses discretion over the amount of damages that for all practical purposes is unrestrained and unreviewable and it may subject the parties to a decision on damages determined by hindsight and heavily influenced by the individual ethical and religious bias of the jurors.

We do not suggest that the mother was obliged to terminate the pregnancy; nor do we intend to minimize the difficult personal choices confronting a married couple faced with an unplanned pregnancy. Indeed, it is just because such situations require difficult decisions which must be resolved by weighing a variety of personal medical and social considerations, that a defendant's exposure to damages should not depend upon them. On the facts of this case, however, abortion was a legitimate medical option. Plaintiffs were free to elect it or not, but their decision should not affect defendant potential liability.

In urging reversal, the dissenter relies primarily upon the Court of Appeals' decisions in Becker v. Schwartz and its companion case, Park v. Chessin, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807. In Becker, plaintiff wife became pregnant during her late child-bearing years and subsequently gave birth to a child suffering from Down's Syndrome (mongolism). Plaintiffs claimed that the wife's physicians negligently failed to test or warn her of the possibility that her child would be deformed at a time when she could have and would have aborted the pregnancy. In Park, plaintiffs alleged that the wife had already given birth to one child suffering from a genetic kidney disease. Before contemplating another pregnancy, they consulted physicians about the possible danger that a second child would suffer similarly. The physicians advised them that the disease was not hereditary and that the chances of recurrence in a future pregnancy were "practically nil". Thereafter, the Parks conceived a child but it was born with the same progressive kidney disease as their first child and lived for only two and one-half years. On motion addressed to the pleadings, the Court of Appeals held that the infants did not have causes of action for "wrongful life" but that the parents' stated claims by which they could recover the sums of money required for the long-term institutional care of the Becker infant and the extraordinary expenses required for the care and treatment of the sick Park infant before her death (Becker v. Schwartz, supra, 46 N.Y.2d 413, 415, 413 N.Y.S.2d 895, 386 N.E.2d 807). ^* The court did not pass upon the question whether the parents could recover the normal and routine expenses of raising unwanted, deformed or sick children and, obviously, it did not rule that parents could recover damages for the routine expenses of rearing a normal, healthy child.

Nor have our past decisions established such a rule, expressly or by implication. The dissenter contends that we did so in Ziemba v. Sternberg, 45 A.D.2d 230, 357 N.Y.S. 265, supra, but there, in deciding that plaintiff mother stated a cause of action when she alleged that the doctor wrongfully and negligently failed to diagnose her unwanted pregnancy in time for an abortion, we expressly deferred ruling on the damages recoverable, stating that "matters ... dealing with the question of damages were not pertinent to the sufficiency of the complaint" and should await trial (Ziemba v. Sternberg, supra, p. 233, 357 N.Y.S.2d 265). Our later decision in Chapman v. Schultz, 47 A.D.2d 806, 367 N.Y.S.2d 1018, supra, holds no more.

Moreover, Becker and Ziemba are factually distinguishable from the present case. In Becker and Park the parents desired the children and continued the pregnancy with the doctors' assurance that the children would be healthy. In Ziemba (supra) the doctor negligently failed to discover the unwanted pregnancy until it was too late to abort the fetus. Here, from all that appears in the record, the mother was aware of the unwanted pregnancy from its inception and did not choose to terminate it.

There are serious policy considerations which militate against the recovery sought here. Manifestly, exposure to such damages may result in substantial verdicts against which potential defendants cannot readily insure themselves. That danger will suggest to many physicians that they should practice "defensive medicine". But decisions to sterilize or abort should be based solely upon the psychic and physical well-being of the patient and his or her family, and neither the family's decision nor the physician's advice should be influenced by considerations of legal liability.

Mrs. Sorkin's pregnancy placed plaintiffs in a position little different from that of many married and unmarried couples, even in this day of sophisticated contraception and family planning; they were faced with the birth of an unanticipated child. If that pregnancy was the result of medical malpractice, established law permits Mr. Sorkin to recover damages for the medical expenses for the care and treatment of his wife during pregnancy and delivery of the baby and for the loss of her services and consortium and permits Mrs. Sorkin to recover for the physical injury and pain occasioned by her unanticipated pregnancy (see, generally, Ann. 83 A.L.R.3d 15; Ann. 27 A.L.R.3d 906). But to hold the physician responsible for the cost of future care of a healthy normal child based upon their private decision on how to accept the unplanned pregnancy is to inflict a penalty on defendant that is out of all proportion to his wrong. It is one thing to tote up the medical bills and assess damages against a negligent physician for extraordinary unanticipated expenses resulting from the preventable birth of a defective baby, as in Becker. It is quite another to assess him for the myriad costs of raising a normal, healthy child for some indefinite period in the future and "not less than 21 years".

The order should be affirmed.

Order affirmed without costs.

CARDAMONE, J. P., and CALLAHAN and MOULE, JJ., concur.

HANCOCK, J., dissents and votes to reverse and deny the motion.

HANCOCK, Justice, dissenting:

I must dissent. The majority agree (citing our decision in Ziemba v. Sternberg, 45 A.D.2d 230, 357 N.Y.S.2d 265) and, indeed, defendant concedes that plaintiffs have stated a valid cause of action in malpractice based upon the allegations of the unsuccessful sterilization operation, defendants' representation that the procedure had been successfully performed, and plaintiffs' reliance thereon in resuming marital relations without the use of contraceptives. The established rule which we restated in Ziemba v. Sternberg, supra, p. 231, 357 N.Y.S.2d 265, is that the "malpractice action being one for personal injuries (Robins v. Finestone, 308 N.Y. 543, 546, 127 N.E.2d 330), 'the person responsible for the injury must respond for all damages resulting directly from and as a natural consequence of the wrongful act according to common experience and in the usual...