Strohmaier by Strohmaier v. Associates in Obstetrics & Gynecology

• Decision Date: 06 May 1983
• Docket Number: Docket No. 58303
• Citation: 122 Mich.App. 116,332 N.W.2d 432
• Parties: Brian STROHMAIER, a minor, by his next friend Kathleen STROHMAIER, Plaintiff- Appellant, v. ASSOCIATES IN OBSTETRICS & GYNECOLOGY, P.C., a Michigan professional corporation; G.A. Saunders, M.D., and Robert M. Stewart, M.D., jointly and severally, Defendants- Appellees. 122 Mich.App. 116, 332 N.W.2d 432
• Court: Court of Appeal of Michigan — District of US

Page 432

332 N.W.2d 432

Brian STROHMAIER, a minor, by his next friend Kathleen STROHMAIER, Plaintiff- Appellant, v. ASSOCIATES IN OBSTETRICS & GYNECOLOGY, P.C., a Michigan professional corporation; G.A. Saunders, M.D. and Robert M. Stewart, M.D., jointly and severally Defendants- Appellees.

Docket No. 58303.

122 Mich.App. 116, 332 N.W.2d 432

Court of Appeals of Michigan.

Submitted June 22, 1982.

Decided Dec. 20, 1982.

Released for Publication May 6, 1983.

[122 MICHAPP 117] Barbara M. Cash and Summers, Schwartz, Silver & Schwartz, P.C. (by Stanley S. Schwartz and Richard D. Toth), Southfield, for plaintiff-appellant.

Sullivan, Ward & Bone, P.C. (by Scott D. Feringa), and Dice, Sweeney, Sullivan & Feikens, P.C. (by Robert E. Dice), Detroit, for defendants.

Before CYNAR, P.J., and KAUFMAN and MAHINSKE, ^* JJ.

CYNAR, Presiding Judge.

Plaintiff Brian Strohmaier brought suit against defendants Associates in Obstetrics and Gynecology, Dr. G.A. Saunders and Dr. Robert M. Stewart for what, in effect, amounts to a claim of "wrongful life". Defendants filed a motion for summary judgment, asserting that Michigan law does not recognize such a cause of action by a child. A motion for summary judgment was also filed in the companion case brought on behalf of plaintiff's parents but was later withdrawn. A hearing was conducted, at which time defendants' motion for summary judgment was granted. Plaintiff appeals as of right.

A motion for summary judgment pursuant to [122 MICHAPP 118] GCR 1963, 117.2(1), tests the legal sufficiency of plaintiff's claim, i.e., whether plaintiff has stated a cause of action. In considering such motions, a court is to consider whether the plaintiff's claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development could possibly justify a right to recovery. Crowther v. Ross Chemical & Mfg. Co., 42 Mich.App. 426, 202 N.W.2d 577 (1972); Todd v. Biglow, 51 Mich.App. 346, 214 N.W.2d 733 (1974), lv. den. 301 Mich. 816 (1974).

In this case, plaintiff, an infant, alleges in his complaint that defendants committed acts of negligence and malpractice by failing to inform plaintiff's mother, who was then pregnant with plaintiff, that she had contracted rubella during the first trimester of her pregnancy ¹ when they knew, or should have known, of the condition and in thereby not allowing her the option of terminating the pregnancy by means of therapeutic abortion. ² Plaintiff alleges that, as a direct and proximate result of the negligence and malpractice of defendants he has suffered rubella syndrome and, as a direct and proximate result thereof, he has suffered serious birth defects. Plaintiff seeks damages for the costs of medical care and treatment, the costs of special education, pain, suffering, humiliation, embarrassment, diminution of earning capacity, mental and emotional anguish, and anxiety.

[122 MICHAPP 119] Plaintiff's claim for "wrongful life" is a relatively new theory of liability nationwide. His claim, ultimately, is that he would have been better off not having been born. This cause of action has never been addressed on the merits by the Michigan Supreme Court. A recent decision of a panel of this Court, however, is noteworthy. See Eisbrenner v. Stanley, 106 Mich.App. 357, 308 N.W.2d 209 (1981), lv. den. 414 Mich. 875 (1982).

The facts involved in Eisbrenner were almost identical to those herein. Plaintiff mother had contracted rubella during her pregnancy, and plaintiff daughter was subsequently born severely deformed. Plaintiffs alleged that defendant doctor negligently failed to diagnose the mother's rubella, despite the fact that he had seen test results indicating the presence of the disease, and that he had negligently failed to warn plaintiff parents of the possibility that the child would be born with defects. Plaintiffs contended that, if defendant had properly informed them of the risk, the family would have decided upon an abortion rather than taking the chance of birth defects. The parents sought damages for mental distress and the cost of the child's treatment. Damages on behalf of the child were requested for pain and suffering. The child died shortly before the trial. Eisbrenner, supra, 106 Mich.App. p. 360, 308 N.W.2d 209.

In the Eisbrenner opinion, the panel held that, although the parents could seek damages for both medical expenses and mental distress, the child's claim did not constitute a valid cause of action. Before reaching the conclusion that no valid "wrongful life" claim existed in favor of the child, the opinion outlined the history of claims for "wrongful life" and the rationale behind decisions nationwide which have almost unanimously refused to allow the cause of action.

[122 MICHAPP 120] It is noted that there have been several recent decisions, not mentioned in Eisbrenner, which have denied a child's cause of action for "wrongful life". Those include White v. United States, 510 F.Supp. 146 (D.Kan., 1981); Phillips v. United States, 508 F.Supp. 537 (D.S.C.1980); DiNatale v. Lieberman, 409 So.2d 512 (Fla.App., 1982); Moores v. Lucas, 405 So.2d 1022 (Fla.App., 1981); and Elliott v. Brown, 361 So.2d 546 (Ala., 1978). In addition, the Pennsylvania Supreme Court has affirmed a lower court's denial of the child's cause of action in Speck v. Finegold, 497 Pa. 77, 439 A.2d 110 (1981), cited in Eisbrenner, supra, 106 Mich.App. p. 364, 308 N.W.2d 209.

The seminal wrongful life case is Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967), which barred recovery for both the child and its parents. Although the New Jersey Supreme Court has since recognized a cause of action in favor of parents for wrongful birth, ³ the Gleitman case is still noteworthy with regard to its denial of recovery for the child. In Gleitman, the plaintiff child suffered birth defects as a result of his mother's exposure to German measles during the first trimester of pregnancy. The defendant doctors, who cared for the mother during her pregnancy and who were informed that she had contracted measles, neglected to advise her of the substantial possibility that the child would suffer defects. The theory of the plaintiff's suit, like that in the instant case, was that the mother might have sought an abortion had she been informed of the prenatal effect of German measles. The majority opinion in Gleitman affirmed a judgment of dismissal against the child on the basis that the conduct complained of, even if true, did not give rise to damages cognizable at law. Gleitman, supra, 227 A.2d p. 692. The [122 MICHAPP 121] majority opinion in Gleitman noted that compensatory damages are measured by comparing the condition that the plaintiff would have been in but for the negligence with the impaired condition resulting from the negligence. The Court reasoned that it was impossible to weigh the difference between life with the suffered defects against the alternative of nonexistence.

In Eisbrenner, supra, a panel of this Court, following Gleitman, concluded that the inherent difficulty in assessing damages was reason to deny a child's cause of action for wrongful life. Still, the Court was not faced with the question of...