Turpin v. Sortini

• Decision Date: 03 May 1982
• Docket Number: No. S,S
• Citation: 31 Cal.3d 220,182 Cal.Rptr. 337,643 P.2d 954
• Court: California Supreme Court
• Parties: , 643 P.2d 954 Joy TURPIN, a Minor, etc., Plaintiff and Appellant, v. Adam J. SORTINI et al., Defendants and Respondents. F. 24319.

Page 337

182 Cal.Rptr. 337

31 Cal.3d 220, 643 P.2d 954

Joy TURPIN, a Minor, etc., Plaintiff and Appellant, v. Adam J. SORTINI et al., Defendants and Respondents.

No. S.F. 24319.

Supreme Court of California,

In Bank.

May 3, 1982.

[31 Cal.3d 222] [643 P.2d 955] Joseph P. Stretch, San Francisco, for plaintiff and appellant.

Stammer, McKnight, Barnum & Bailey, Daniel O. Jamison, Fresno, for defendants and respondents.

[31 Cal.3d 223] KAUS, Justice.

This case presents the question of whether a child born with an hereditary affliction may maintain a tort action against a medical care provider who--before the child's conception--negligently failed to advise the child's parents of the possibility of the hereditary condition, depriving them of the opportunity to choose not to conceive the child. Although the overwhelming majority of decisions in other jurisdictions recognize the right of the parents to maintain an action under these circumstances, the out-of-state cases have uniformly denied the child's right to bring what has been commonly termed a "wrongful life" action. In Curlender v. Bio-Science Laboratories (1980) 106 Cal.App.3d 811, 165 Cal.Rptr. 477, however, the Court of Appeal, 119 Cal.App.3d 690, 174 Cal.Rptr. 128, concluded that under California common law tort principles, an afflicted child could maintain such an action and could "recover damages for the pain and suffering to be endured during the limited life span available to such a child and any special pecuniary loss resulting from the impaired condition" (id., at p. 831, 165 Cal.Rptr. 477), including the costs of medical care to the extent such costs were not recovered by the child's parents.

In the case at bar, a different panel of the Court of Appeal disagreed with the conclusion in Curlender and affirmed a trial [643 P.2d 956] court judgment dismissing the child's cause of action on demurrer. We granted a hearing to resolve the conflict

I

The allegations of the complaint disclose the following facts. On September 24, 1976, James and Donna Turpin, acting on the advice of their pediatrician, brought their first--and at that time their only--daughter, Hope, to the Leon S. Peters Rehabilitation Center at the Fresno Community Hospital for evaluation of a possible hearing defect. ¹ Hope was examined and tested by Adam J. Sortini, a licensed professional specializing in the diagnosis and treatment of speech and hearing defects.

The complaint alleges that Sortini and other persons at the hospital negligently examined, tested and evaluated Hope and incorrectly advised her pediatrician that her hearing was within normal limits when, in reality, she was "stone deaf" as a result of an hereditary ailment. [31 Cal.3d 224] Hope's parents did not learn of her condition until October 15, 1977 when it was diagnosed by other specialists. According to the complaint, the nature of the condition is such that there is a "reasonable degree of medical probability" that the hearing defect would be inherited by any offspring of James and Donna.

The complaint further alleges that in December 1976, before learning of Hope's true condition and relying on defendants' diagnosis, James and Donna conceived a second child, Joy. The complaint avers that had the Turpins known of Hope's hereditary deafness they would not have conceived Joy. Joy was born August 23, 1977, and suffers from the same total deafness as Hope.

On the basis of these facts, James, Donna, Hope and Joy filed a complaint setting forth four causes of action against defendants Sortini, the hospital, the rehabilitation center and various Does. The first cause of action, brought on behalf of Hope, seeks damages for the harm Hope has allegedly suffered as a result of the delay in the diagnosis of her condition. The second cause of action--the only cause before us on this appeal--was brought on behalf of Joy and seeks (1) general damages for being "deprived of the fundamental right of a child to be born as a whole, functional human being without total deafness" and (2) special damages for the "extraordinary expenses for specialized teaching, training and hearing equipment" which she will incur during her lifetime as a result of her hearing impairment. The third and fourth causes of action, brought on behalf of James and Donna, seek, respectively, special damages relating to the support and medical care of Joy to the age of majority, and general damages for emotional distress sustained by James and Donna "attendant to the raising and caring of a totally deaf child."

Defendants demurred to the second and fourth causes of action, and after briefing and argument, the trial court sustained the demurrer without leave to amend. Thereafter, the court entered a judgment dismissing the action as to Joy. ² As noted, Joy's action is the only matter before us on this appeal. ³

[31 Cal.3d 225]

[643 P.2d 957]

II

Although this is the first case in which we have faced the question of potential tort liability in a "wrongful life" or "wrongful birth" context, ⁴ there is no dearth of authority in this area. ⁵ In recent years, many courts in other jurisdictions have confronted similar claims brought by both parents and children against medical professionals whose negligence had allegedly proximately caused the birth of hereditarily afflicted children. The overwhelming majority of the recent cases have permitted parents to recover at least some elements of damage in such actions. (See, e.g., Robak v. United States (7th Cir. 1981) 658 F.2d 471; Schroeder v. Perkel (1981) 87 N.J. 53 [432 A.2d 834]; Berman v. Allan (1979) 80 N.J. 421 [404 A.2d 8, 13-15]; Becker v. Schwartz (1978) 46 N.Y.2d 401 [413 N.Y.S.2d 895, 386 N.E.2d 807, 813-814]; Speck v. Finegold (Pa.1981) 439 A.2d 110, 111-112; Jacobs v. Theimer (Tex.1975) 519 S.W.2d 846; Dumer v. St. Michael's Hospital (1975) 69 Wis.2d 766 [233 N.W.2d 372, 376-377].) At the same time, the out-of-state authorities have uniformly rejected the children's own claims for general damages. (See, e.g., Berman v. Allan, supra, 404 A.2d at pp. 11-13; Becker v. Schwartz, supra, 386 N.E.2d at pp. 811-812; Speck v. Finegold, supra, 439 A.2d at p. 112, affg. by an equally divided ct. (Pa.Super.Ct.1979) 408 A.2d 496, 508; Dumer v. St. Michael's Hospital, supra, 233 N.W.2d at pp. 374-376; Elliot v. Brown (Ala.1978) 361 So.2d 546.)

The explanation for the divergent results is that while courts have been willing to permit parents to recover for medical costs or--in some [31 Cal.3d 226] cases--other harms which the parents would not have incurred "but for" the defendants' negligence, they have been reluctant to permit the child to complain when, but for the defendant's negligence, he or she would not have been born at all. In this context the recent decisions have either concluded that the child has sustained no "legally cognizable injury" or that appropriate damages are impossible to ascertain.

While our court has not yet spoken on the question, three California Court of Appeal decisions have addressed somewhat related claims. Custodio v. Bauer (1967) 251 Cal.App.2d 303, 59 Cal.Rptr. 463, the earliest California case in this area, involved an action brought solely by parents against a physician whose negligence in performing a sterilization operation failed to prevent the plaintiff wife's pregnancy and the birth of a healthy child--the family's 10th. The Custodio court, applying generally applicable tort principles, upheld the parents' right to bring the action. Although the court did not define the full scope of recoverable damages in such an action (id., at p. 326, 59 Cal.Rptr. 463), it did indicate that numerous items of damage normally recoverable in a tort action could properly be awarded. (Id., at pp. 318-326, 59 Cal.Rptr. 463.)

In the second case, Stills v. Gratton (1976) 55 Cal.App.3d 698, 127 Cal.Rptr. 652, both an unmarried mother and her healthy son brought consolidated actions against several doctors who had negligently performed a therapeutic abortion, leading to the unexpected and unwanted birth of the child. With respect to the mother's claim, the Stills court followed Custodio and permitted the action, concluding that she could recover

[643 P.2d 958] "all the damages to which she is entitled under ordinary tort principles [subject to] ... any offsets for benefits conferred and amounts chargeable to a plaintiff under her duty to mitigate damages." (Id., at p. 709, 127 Cal.Rptr. 652.)

With respect to the son's claim, however, the court determined that no cause of action would lie. Although the child had alleged that "he was born out of wedlock and that 'various reasons' affect him to his detriment" (id., at p. 705, 127 Cal.Rptr. 652), the Stills court noted that the testimony at trial disclosed that the boy "was and is a healthy, happy youngster who is a joy to his mother" (ibid.) and thus that "[h]is only damages, if any, caused by the respondents' conduct is in being born." (Ibid.) Relying on earlier Illinois and New York decisions which had rejected similar wrongful life claims by healthy children of unmarried parents (Zepeda v. Zepeda (1963) 41 Ill.App.2d 240 [190 N.E.2d 849]; Williams v. State (1966) 25 App.Div.2d 906 [269 N.Y.S.2d 786] ), the Stills court [31 Cal.3d 227] denied the son's action, suggesting that "[t]he issue involved is more theological or philosophical than legal." (55 Cal.App.3d at p. 705, 127 Cal.Rptr. 652.)

The third and most recent Court of Appeal decision in this area is Curlender v. Bio-Science Laboratories, supra, 106 Cal.App.3d 811, 165 Cal.Rptr. 477, an action brought solely on behalf of a child, not her parents. Unlike Custodio and Stills, in which the defendants' negligence had led to the births of healthy, albeit unplanned, children, in Curlender the child-plaintiff was afflicted with Tay-Sachs disease, a fatal illness " 'characterized by partial or complete loss of vision, mental underdevelopment, softness of the muscles, convulsions, etc.' "...