Terrell v. Garcia

• Citation: 496 S.W.2d 124
• Decision Date: 09 May 1973
• Docket Number: No. 15174,15174
• Parties: Ardelia TERRELL et vir, Appellants, v. Raul G. GARCIA, M.D., Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 124

496 S.W.2d 124

Ardelia TERRELL et vir, Appellants, v. Raul G. GARCIA, M.D., Appellee.

No. 15174.

Court of Civil Appeals of Texas San Antonio.

May 9, 1973.

Rehearing Denied June 13, 1973.

Phillip D. Hardberger, San Antonio, for appellants.

Paul M. Green, Lang, Cross, Ladon, Boldrick & Green, San Antonio, for appellee.

BARROW, Chief Justice.

The sole question presented by this appeal from a take-nothing summary judgment is whether the parents of an unwanted, but normal, healthy child conceived after an unsuccessful sterilization operation on the mother, may recover from the negligent doctor for the financial expenses of the care and maintenance of said child. All other items of damage, such as the medical expenses, as well as the pain and mental anguish of the mother incident to the birth of said child, were waived by appellants to deliberately narrow the issue before the Court.

It was alleged that in November, 1970, Mrs. Terrell entered the Robert B. Green Hospital for the dual purpose of delivery of the couple's third child, and for the performance of a bilateral tubal ligation to insure her future sterility. Mrs. Terrell was assured that such operation, which was performed by Dr. Garcia, would prevent her from ever having children in the future. Nevertheless, she subsequently became pregnant and on January 17, 1972, a normal, healthy son was born and is living with Mrs. Terrell, who is now separated from her husband. It is alleged that the fourth child, in addition to the other three children imposes a heavy financial strain upon the couple, and that she sought the sterilization operation to avoid such strain.

The uniformly recognized rule prior to 1967 was that irrespective of the issue of liability for performance of an unsuccessful sterilization operation, no damages resulted from the birth of a normal child through normal delivery with no permanent harm to the mother on the grounds that the birth of a normal child could not be considered an injury to the parents thereof; and that in any event, the granting of damages on such grounds would be against public policy. 27 A.L.R.3d 906, 917 (1969); Christensen v. Thornby, 192 Minn. 123, 255 N.W. 620, 93 A.L.R. 570 (1934); Shaheen v. Knight, 11 Pa.D. & C.2d 41 (1957); Ball v. Mudge, 64 Wash.2d 247, 391 P.2d 201 (1964); Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689, 22 A.L.R.3d 1411 (1967).

This rule was followed in the only Texas case on this point. In Hays v. Hall, 477 S.W.2d 402, 406 (Tex.Civ.App.--Eastland 1972), the Court, after sustaining a plea of limitations, expressly overruled appellant's point complaining of the trial court's action in sustaining a special exception to plaintiff's allegation seeking recovery for the economic cost of raising, caring for, and educating the unwanted child. The Court said: 'To allow damages for the birth and upbringing of a normal child would mean that the doctor would have to pay for the satisfaction and joy and affection which normal parents would ordinarily have in the rearing and education of a healthy child. Such a holding would not be justified by the facts of this case.' The Supreme Court granted a writ of error in this case and reversed and remanded the case for trial after extending the 'discovery rule' to malpractice cases arising from vasectomy operations. 488 S.W.2d 412 (Tex.1973). The Supreme Court discussed only the limitations question and did not consider any of the elements of damages. ¹

The soundness of this rule was first questioned in Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463, 27 A.L.R.3d 884 (1967). Plaintiffs sought to recover damages following an unsuccessful sterilization operation for the medical expenses of said operation, physical pain and mental anguish incident to the pregnancy, and for economic loss caused by the unwanted child. The Court rejected the reasoning of the Christensen and Shaheen holdings and said: 'Where the mother survives without casualty there is still some loss. She must spread her society, comfort, care, protection and support over a larger group. If this change in the family status can be measured economically, it should be as compensable as the former losses.' On rehearing, the Court made it clear that it had not as yet held that economic loss alone was recoverable. It said: 'We adhere to our determination that resolution of the controversy over one element of the damages allegedly recoverable for that wrong should await proof of the breach of duty and at least an offer to prove the alleged damages. The complaint was filed prior to delivery of any child, and supports proof of the existence of actual and potential damages aside from the care and support of a normal child.'

Nevertheless, the reasoning set forth in the original opinion in Custodio regarding the economic loss to the parents of an unwanted, normal child has been cited with approval by at least two other courts, ² although no reported case has ever approved a recovery for this type of loss. In Jackson v. Anderson, 230 So.2d 503 (Dist. Court of Appeal of Florida 1970), the Court reversed an order of dismissal and remanded for trial a complaint seeking damages for breach of warranty and negligent performance of a sterilization operation on the mother following a difficult delivery of her third child. The Court did not discuss the items of damage sought by the complaint, but held that such a suit seeking damages following normal birth of a healthy child was not against public policy.

Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971), was an appeal from the dismissal of a complaint brought against a pharmacist by the parents of a normal, healthy child which was conceived after the pharmacist supplied the mother with tranquilizers in lieu of birth control pills. Damages were sought for several items of damage: (1) mother's lost wages; (2) medical and hospital expenses; (3) pain and mental anguish of the mother incident to the birth; and (4) economic costs of rearing such unwanted child. The Court, after a full review of the auhorities, held that there is no valid reason why the trier of fact should not be free to assess damages as it would in any other negligence case. The Court rejected the argument that this type of suit was against public policy in view of the recent recognition of the use of contraceptives by the legislature of Michigan, and the United States Supreme Court, ³ as well as the public recognition of family planning.

The Michigan Court recognized it is arguable that the birth of a healthy child confers so substantial a benefit as to outweigh the expenses of his birth and support, and that this is undoubtedly true in the great majority of the cases. After rejecting such thesis as a matter of law, the Court adopted the so-called 'benefits rule' from Restatement, Torts, (1939), Section 920, p. 616, as follows: 'Where the defendant's tortious conduct has caused harm to the plaintiff or to his property and in so doing has conferred upon the plaintiff a special benefit to the interest which was harmed, the value of the benefit conferred is considered in mitigation of damages, where this is equitable.' It was held that the benefits of the unplanned child may be weighed against all elements of claimed damage, including the medical expenses incident to the birth. Accordingly, the Court reversed the order dismissing the complaint and remanded the case for trial on the merits.

We assume for the purpose of this appeal from the take-nothing summary judgment that the sterilization operation was negligently performed by the doctor. Thus, our question relates entirely to compensation for such negligence. We do not have the question which was presented in the Custodio, Jackson and Troppi cases of whether the birth of a normal, healthy child can be considered a compensable injury under any theory of law, or whether the negligent doctor is absolved from all liability. Rather, the narrow question presented by appellants here is whether the parents of an unwanted child may recover Only for the economic loss in rearing and educating such child. The appellant, Mrs. Terrell, has chosen to waive other elements of damage such as medical expenses, as well as her pain and suffering.

The universal rule prior to the Custodio holding was that public sentiment precluded recovery for such alleged damage, because the expense of rearing the child was offset by the parental joy and companionship brought by such experience. Such public policy was undoubtedly based more on recognition of the family's importance to our society than on the moral question of family planning. This public policy view was the basis for the general rule followed in Hays v. Hall, supra, and since it was not disapproved or set aside by the Supreme Court opinion, it remains as the 'law of the case.' Kitchens v. Kitchens, 387 S.W.2d 89 (Tex.Civ.App.--San Antonio 1965, writ ref'd n.r.e.); Western Union Telegraph Co. v. Hicks, 47 S.W.2d 466, 473 (Tex.Civ.App.--Austin 1932, writ ref'd). Since this is the only Texas authority on the point, it is at least persuasive that such rule be followed here.

Irrespective of the public policy view, adoption of the 'benefits rule' as suggested by Troppi, would present insurmountable problems of proof under our present standards for proof of damages. Proof could undoubtedly be offered regarding the cost of care and maintenance for a hypothetical child, although the standard of living and extent of education to be provided such child would undoubtedly require considerable conjecture and speculation by the trier of facts. Nevertheless, Texas juries and courts now determine somewhat similar costs, as well as the probable earnings of such child during minority, in actions to recover for the wrongful death of a child. It is seen that in such actions Texas courts virtually hold as a matter of law that the probable earnings of a normal child during his minority will more than offset the...