Taylor v. Kurapati

• Decision Date: 08 October 1999
• Docket Number: Docket No. 204908.
• Citation: 236 Mich. App. 315,600 N.W.2d 670
• Parties: Brandy TAYLOR and Brian Taylor, Individually, and Brandy Taylor, as Next Friend and Mother of Shelby Taylor, a Minor, Plaintiffs-Appellants, v. Surender KURAPATI, M.D., and Annapolis Hospital, assumed name of United Care, Inc., Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

600 N.W.2d 670

236 Mich. App. 315

Brandy TAYLOR and Brian Taylor, Individually, and Brandy Taylor, as Next Friend and Mother of Shelby Taylor, a Minor, Plaintiffs-Appellants, v. Surender KURAPATI, M.D., and Annapolis Hospital, assumed name of United Care, Inc., Defendants-Appellees.

Docket No. 204908.

Court of Appeals of Michigan.

Submitted March 10, 1999, at Detroit.

Decided June 25, 1999, at 9:05 a.m.

Released for Publication October 8, 1999.

Bendure & Thomas (by Mark R. Bendure and Kevin P. Kavanagh), Detroit, for Brandy and Brian Taylor.

Siemion, Huckabay, Bodary, Padilla, Morganti & Bowerman, P.C. (by Raymond W. Morganti), Southfield, for Surender Kurapati, M.D.

Saurbier, Paradiso & Perrin, P.L.C. (by John M. Perrin and Mark A. Meyer), St. Clair Shores, for United Care, Inc.

Before: DOCTOROFF, P.J., and SMOLENSKI and WHITBECK, JJ.

WHITBECK, J.

Plaintiffs Brandy and Brian Taylor, individually, and Brandy Taylor as next friend and mother of Shelby Taylor,¹ a minor, appeal as of right the trial court's order granting summary disposition in favor of defendants Surender Kurapati, M.D., and Annapolis Hospital with respect to their wrongful birth and negligent infliction of emotional distress claims.

With respect to their wrongful birth claim, the Taylors cite the following description of the tort of wrongful birth in Blair v. Hutzel Hosp., 217 Mich.App. 502, 506-507, 552 N.W.2d 507 (1996), rev'd on other grounds 456 Mich. 877, 569 N.W.2d 167 (1997):

"If a physician breaches the appropriate duty under the facts of a case, and it can be established that the parents would have avoided or terminated the pregnancy, the necessary causal connection is established. The parents should recover for their extraordinary medical expenses and the extraordinary costs of raising the child, as well as the emotional harm they have suffered." [Quoting Proffitt v. Bartolo, 162 Mich.App. 35, 46, 412 N.W.2d 232 (1987).]

With respect to their negligent infliction of emotional distress claim, the Taylors cite Wargelin v. Sisters of Mercy Health Corp., 149 Mich.App. 75, 80-81, 385 N.W.2d 732 (1986), for the proposition that "Michigan has recognized a cause of action based on negligence when a parent who witnesses the negligent infliction of injury to his or her child suffers emotional distress as a consequence."

We note that counsel for the Taylors during oral argument candidly conceded that, but for the claimed existence of the wrongful birth tort, there would be no issue relating to the statute of limitations. Thus, this case revolves around the wrongful birth tort. In this opinion, we address the basic question whether, absent legislative action, such a tort has a rightful place in our jurisprudence. We conclude that it does not. We further conclude that the Taylors failed to file their complaint within the applicable limitation period. We also conclude that the undisputed facts of this case do not support a claim of negligent infliction of emotional distress and that summary disposition was also appropriate with regard to this aspect of the case.

I. Basic Facts And Procedural History

The Taylors filed their complaint in August 1996.² The Taylors alleged that Brandy Taylor had a doctor-patient relationship with Kurapati, a specialist in radiology, and Annapolis. On April 19, 1994, Brandy Taylor gave birth to the couple's daughter, Shelby Taylor. Throughout her pregnancy, Brandy Taylor had been treated by Dr. Leela Suruli. Suruli had ordered that a routine ultrasound be performed in Brandy Taylor's second trimester. The ultrasound was conducted on December 4, 1993, and interpreted by Kurapati, an agent of Annapolis. Kurapati concluded that the pregnancy was seventeen weeks along, plus or minus two weeks, and that there were no visible abnormalities with the fetus. A second ultrasound was conducted on March 16, 1994, and interpreted by another physician, Dr. M.B. Cash. Cash indicated that the baby's femurs could not be adequately identified and believed that a high resolution ultrasound could be helpful for further investigation. Suruli told Brandy Taylor that the baby had short femur bones and would merely be shorter than average. Brandy Taylor decided not to have another ultrasound. Shelby Taylor was born on April 19, 1994, with "gross anatomical deformities including missing right shoulder, fusion of left elbow, missing digits on left hand, missing femur on left leg and short femur on right." A study at the University of Michigan Hospital suggested that Shelby Taylor had femur-fibula-ulna syndrome.

In their complaint, the Taylors alleged that the standard of care in performing the initial ultrasound had been breached by Kurapati when he failed to locate all four limbs at the time of the ultrasound. The Taylors alleged that the ultrasound should have shown Shelby Taylor's disabilities and that the failure to reveal the disabilities deprived the Taylors of their right to make a reproductive decision regarding the pregnancy. In addition to their claim of medical malpractice, the Taylors also alleged that, because of defendants' negligence, they suffered emotional distress at witnessing the birth of their child.

In early April 1997, Annapolis filed a motion for summary disposition pursuant to MCR 2.116(C)(7), (C)(8), and (C)(10). Annapolis primarily argued that the Taylors had failed to file their complaint within the statute of limitations for medical malpractice actions. Soon thereafter, Kurapati filed a similar motion for summary disposition pursuant to MCR 2.116(C)(7), (C)(8), and (C)(10).

The trial court held a hearing regarding defendants' motions in early May 1997. The trial court concluded that the Taylors' medical malpractice claim was not timely filed and dismissed the complaint with regard to any malpractice claims. However, the trial court allowed the Taylors' claim of negligent infliction of emotional distress to go forward, because the parties had not addressed the issue in their briefs. The trial court gave defendants an opportunity to submit motions for summary disposition with regard to the negligent infliction of emotional distress claim and eventually, without oral arguments, granted defendants' motions for summary disposition of the Taylors' claim of negligent infliction of emotional distress. The trial court also denied the Taylors' motion for reconsideration with regard to its earlier ruling regarding the statute of limitations.

II. The Wrongful Birth Tort

A. The Closely Analogous Birth-Related Torts (1) Introduction

The wrongful birth tort is within a constellation of birth-related torts and is closely related to two other such torts: "wrongful conception" and "wrongful life." At the outset, however, we note that the relationship between the wrongful birth tort and other, more firmly established torts of birth-related medical malpractice is considerably more tenuous. Michigan has long recognized that causes of action exist in—and we use the cruel but evocative trial parlance with extreme hesitation—"bad baby" cases. In such cases, courts and juries have held physicians and other health professionals liable for birth- or pregnancy-related disabilities caused in whole or in part by their negligence.³ These cases generally involve negligence occurring fairly close in time to, if not contemporaneous with, the birth itself.⁴ This is unlike the wrongful birth tort that usually involves an allegation of a negligent failure relatively early in the pregnancy to inform the parents of the risk of birth defects. Further, these cases do not involve the intermediate step of parental action. That is, they do not involve an allegation that the negligence deprived the parents of the opportunity to terminate the pregnancy.⁵ In other words, such cases are simply a typical claim of medical malpractice injuring a person. They are not wrongful birth claims because they involve no allegation that the baby involved should never have been born, but rather involve an allegation that, absent malpractice, the same baby would have been born without certain injuries.

Further, despite rhetorical similarities, the wrongful birth tort has little to do with "end of life" cases. These cases have their basis in a person's right to make medical decisions, grounded in the common law,⁶ state statutes or state constitutions,⁷ or in the federal constitutional liberty interest⁸ in refusing unwanted medical treatment. In this regard, Michigan recognizes a right to withhold or withdraw life-sustaining medical treatment under the common-law doctrine of informed consent. In re Martin, 450 Mich. 204, 215, 538 N.W.2d 399 (1995). Any similarity that might exist between these end of life cases and the wrongful birth tort derives not from situations involving a competent patient's right to make such medical decisions. Rather the similarity derives from situations involving a once-competent patient, who has utilized a living will⁹ or other advance directive ¹⁰ or a do-not-resuscitate order¹¹ to proscribe certain types of treatment; a once-competent patient who has left no such instructions;¹² or a never-competent patient.¹³ Generally, these situations involve the use of surrogates who have, or who seek, the power to make life or death decisions on behalf of the patient. There is, therefore, an analogy between these cases and the surrogate role of the parents in wrongful birth cases who have, but argue that the physician's negligence deprived them of, the right under controlling federal precedent to terminate a pregnancy.

However, the analogy is not a close one, for several reasons. First, although much of the litigation and legislative activity in the end of life area may have its roots in a fear of liability, the actions themselves do not generally arise in a tort context. Second, courts generally recognize that the right to refuse life-prolonging procedures, whether directly or through surrogates, is not an absolute one and often...