Szekeres by Szekeres v. Robinson
| Citation | 102 Nev. 93,715 P.2d 1076 |
| Decision Date | 18 March 1986 |
| Docket Number | No. 15115,15115 |
| Parties | Phyllis Diane SZEKERES; Peter F. Szekeres; Erica Szekeres, April Szekeres, Shelley Szekeres and Robin Szekeres, minors By and Through their Guardian Ad Litem Phyllis Diane SZEKERES, Appellants, v. William ROBINSON, M.D. and Patrick Flannagan, M.D., and Women's Hospital, Respondents. |
| Court | Supreme Court of Nevada |
This case arises out of a claimed failure of surgical sterilization procedures and the delivery by Phyllis Szekeres of a normal baby girl, Erica. Phyllis sues on her own behalf and on behalf of Erica and Erica's brothers and sisters claiming that all have been "damaged" by the birth of Erica. The father of Erica, Peter Szekeres, joins the suit and asks for damages caused by his wife's unavailability during pregnancy. The Szekereses sue, in both contract and tort, the attending physicians and the hospital where the surgery was performed. The district court dismissed all claims, and this appeal ensued.
The district court's orders of dismissal of all tort claims are affirmed on the ground that one of the essential elements of a negligent tort, namely compensable damages, is not present in this case. The case is remanded, however, to permit Phyllis and Peter Szekeres to pursue a breach of contract claim relative to the outcome of the surgery.
It has been said that "a really satisfactory definition of a tort has yet to be found;" still, the definition is offered that "[b]roadly speaking, a tort is a civil wrong, other than breach of contract, for which the court will provide a remedy in the form of an action for damages." Prosser and Keeton on the Law of Torts p. 2, West Publishing Co., (5th ed. 1984). Tort law is overwhelmingly common law, court-made law, developed in case-by-case decision making by the courts. Today this court decides that in Nevada the birth of a normal child is not a civil wrong for which the court will provide a remedy in the form of an action for damages. Even if negligent or careless conduct were found to have contributed to the eventual birth of Erica, this event would not give rise to tort liability in negligence. The reason is that a negligence action may not be maintained unless one has suffered injury or damage, Cannon v. Sears, Roebuck & Co., 374 Mass. 739, 374 N.E.2d 582 (1978), and the birth of a normal, healthy child is not "legally compensable damages" in tort. Restatement (Second) of Torts, § 328A (1965). 1 See Byrd v. Wesley Medical Center, 237 Kan. 215, 699 P.2d 459, 468 (1985) ()
This is a case of first impression in Nevada. Courts in other jurisdictions have resolved the issue in a variety of ways. Some have found tort liability present yet have limited damages to those resulting from the pregnancy and birth while excluding recovery for the cost of rearing the child. See, e.g., Wilbur v. Kerr, 275 Ark. 239, 628 S.W.2d 568 (1982). Other jurisdictions have permitted full tort recovery including economic, physical and emotional costs attendant to the birth and rearing of the child. See, e.g., Custodio v. Bauer, 251 Cal.App.2d 303, 325, 59 Cal.Rptr. 463, 477 (1967). While a third view is taken by other jurisdictions which permit recovery but set up complicated computation of damages formulas whereby the trier of fact must set off what the child costs against what the child is worth, a system which seems to us as a mercenary approach employing questionable accounting practices. See, e.g., Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511, 519 (Mich.App.1971).
The cases allowing tort recovery have the underlying assumption that the issues involved are indistinguishable from any other professional negligence case, saying, for example, that
[a]nalytically, such an action is indistinguishable from an ordinary medical negligence action where a plaintiff alleges that a physician has breached a duty of care owed to him [or her] with resulting injurious consequences. Where the purpose of the physician's actions is to prevent conception or birth, elementary justice requires that he [or she] be held legally responsible for the consequences which have in fact occurred.
Sherlock v. Stillwater Clinic, 260 N.W.2d 169, 174 (Minn.1977) (citing W. Prosser, Torts §§ 41, 42 (4th Ed.1971)).
From our point of view what is overlooked in these decisions is the basic question of just what is the damage or the "wrong" to be legally redressed. 2 A case involving the birth of a normal child is analytically distinguishable from an ordinary medical negligence action with its attendant "resulting injurious consequences," such as death, disability or other adverse iatrogenic consequences; and it should not be facilely assumed that child- birth is a "wrong" or the type of injurious consequence for which society should, through its courts, as a matter of public policy, give reparation.
Many courts have taken for granted that normal birth is an injurious and damaging consequence and have disagreed only on the "how-much" part of such claims. We do not take the wrongness nor the injuriousness of the birth event for granted and say, to the contrary, that normal birth is not a wrong, it is a "right." It 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 childbirth. 3
It has been argued by at least one text writer that Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), in which the United State Supreme Court recognized a constitutionally protected right of a parent to decide on a first trimester abortion, "should constitute a forceful argument against any decision denying recovery for wrongful birth based on public policy." Dooley, Modern Tort Law, Callaghan and Company (1982 Revision). We fail to see any forceful argument contrary to this opinion which emanates from Roe v....
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