University of Arizona Health Sciences Center v. Superior Court of State In and For Maricopa County, 16336-SA

• Decision Date: 20 July 1983
• Docket Number: No. 16336-SA,16336-SA
• Parties: UNIVERSITY OF ARIZONA HEALTH SCIENCES CENTER, a/k/a University Hospital, et al., Petitioners, v. SUPERIOR COURT OF the STATE of Arizona, In and For the COUNTY OF MARICOPA, and David L. Grounds, a Judge thereof; and Patrick Heimann and Jeanne Heimann, husband and wife, Respondents.
• Court: Arizona Supreme Court

Page 1294

667 P.2d 1294

136 Ariz. 579

UNIVERSITY OF ARIZONA HEALTH SCIENCES CENTER, a/k/a University Hospital, et al., Petitioners, v. SUPERIOR COURT OF the STATE of Arizona, In and For the COUNTY OF MARICOPA, and David L. Grounds, a Judge thereof; and Patrick Heimann and Jeanne Heimann, husband and wife, Respondents.

No. 16336-SA.

Supreme Court of Arizona, In Banc.

July 20, 1983.

Jones, Teilborg, Sanders, Haga & Parks by Frank A. Parks, Donald L. Myles, Jr., Phoenix, for petitioners University of Arizona Health Sciences Center.

Bob O. Barber, Jr., Tucson, for respondents Heimann.

Haralson, Kinerk & Morey by Carter Morey and Wallace R. Hoggatt, Tucson, for amici curiae Frank and Victoria Mendoza.

FELDMAN, Justice.

Petitioner, a health care provider which operates a teaching hospital, brings this special action, claiming that the respondent judge erred in a legal ruling on petitioner's motion for summary judgment in the underlying tort action. Petitioner seeks this court's intervention by way of an order requiring respondent judge to apply the correct rule of law and to grant the motion for partial summary judgment. We have jurisdiction to entertain the action by virtue of Ariz. Const. art. 6, § 5(1), and Ariz.R.Sp.Act. 4, 17A A.R.S.

The real parties in interest are Patrick Heimann and Jeanne Heimann, husband and wife (Heimanns). The Heimanns originally brought a medical malpractice action against petitioner, a health care provider. The Heimanns claimed that one of the hospital's employees, a doctor, had negligently performed a vasectomy operation upon Patrick Heimann, that as a result Jeanne Heimann became pregnant and on October 4, 1981 gave birth to a baby girl. The Heimanns alleged in the underlying tort action that the vasectomy had been obtained because "already having three children, [they] decided ... that they desired to have no more children. As a result of this decision they further decided that a vasectomy was the best means of contraception for them." The baby girl is normal and healthy, but the Heimanns argue that they are financially unable to provide for themselves, their other three children and the newest child whose birth was neither planned nor desired. Accordingly, they seek damages from the doctor and his employer.

The question of negligence is not before us. The issue which brings these parties to our court pertains, rather, to the nature and extent of the damages which can be recovered, assuming that negligence is subsequently proved. The hospital filed a motion for partial summary judgment (Ariz.R.Civ.P. 56(b), 16 A.R.S.), contending that while damages were recoverable for "wrongful pregnancy," "as a matter of law [the Heimanns] could not recover damages for the future cost of raising and educating their normal, healthy child born as the result of petitioner's negligence." The trial judge denied the motion for partial summary judgment. Petitioner then brought this special action, claiming that the ruling of the trial judge was improper and should be vacated by this court.

All parties have urged us to accept jurisdiction to decide the narrow, legal question presented in the present posture of the case. The question is a matter of first impression in this state, is appropriately framed, turns entirely on legal principles rather than controverted issues of fact, and is a matter of important public interest. While there is a substantial argument to be made over the adequacy of review by appeal (see Ariz.R.Sp.Act. 1), the factors mentioned above and the resulting cost and delay to all parties if normal appellate procedures were utilized and the case then had to be retried militate in favor of exercising our discretion to accept jurisdiction. See State v. Superior Court of Maricopa County, 123 Ariz. 324, 329-30, 599 P.2d 777, 782-83 (1979). We therefore felt that it would be appropriate to accept jurisdiction in order to decide the legal issue and to determine whether in failing to grant the motion for partial summary judgment the respondent judge failed "to perform a duty required by law as to which he has no discretion" or acted "in excess of [his] ... legal authority...." Ariz.R.Sp.Act. 3(a) and (b); see Nataros v. Superior Court of Maricopa County, 113 Ariz. 498, 499, 557 P.2d 1055, 1056 (1976).

Therefore, we shall proceed to consider the legal questions pertaining to the nature and extent of damages which may be recovered in an action for "wrongful pregnancy." ¹ The first question is whether parents of a child who was neither desired nor planned for but who was, fortunately, normal and healthy, have been damaged at all by the birth of that child. An overview of the authorities indicates rather clearly that the law will recognize at least some types of damage which result from unwanted procreation caused by the negligence of another. See annot., Tort Liability for Wrongfully Causing One to Be Born, 83 A.L.R.3d 15, 29 (1978); Phillips v. United States, 508 F.Supp. 544, 549 (D.S.C.1980). The real controversy centers around the nature of the damages which may be recovered. On this issue there are three distinct views.

The first line of authority limits damages by holding that the parents may recover only those damages which occur as the result of pregnancy and birth, and may not recover the cost of rearing the child. Boone v. Mullendore, 416 So.2d 718, 721 (Ala.1982); Wilbur v. Kerr, 275 Ark. 239, 243-44, 628 S.W.2d 568, 571 (1982); Coleman v. Garrison, 327 A.2d 757, 761-62 (Del.Super.Ct.1974), aff'd 349 A.2d 8, 13-14 (Del.1975); Cockrum v. Baumgartner, 95 Ill.2d 193, 203-04, 69 Ill.Dec. 168, 173-74, 447 N.E.2d 385, 390-91 (1983) (reversing 99 Ill.App.3d 271, 54 Ill.Dec. 751, 425 N.E.2d 968 (1981)); Schork v. Huber, 648 S.W.2d 861, 862 (Ky.1983); Sala v. Tomlinson, 73 A.D.2d 724, 726, 422 N.Y.S.2d 506, 509 (1979); Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 453 A.2d 974, 975-76 (1982).

A second view could be characterized as the "full damage" rule and allows the parents to recover all damages and expenses, including the cost of the unsuccessful sterilization procedure, the economic loss from pregnancy, and the economic, physical and emotional cost attendant to birth and rearing the child. Custodio v. Bauer, 251 Cal.App.2d 303, 325, 59 Cal.Rptr. 463, 477 (1967); Cockrum v. Baumgartner, 99 Ill.App.3d 271, 273-74, 54 Ill.Dec. 751, 753, 425 N.E.2d 968, 970 (1981), rev'd 95 Ill.2d 193, 69 Ill.Dec. 168, 447 N.E.2d 385 (1983). These cases appear to be a distinct minority.

A substantial number of cases have adopted a third rule which allows the recovery of all damages which flow from the wrongful act but requires consideration of the offset of benefits. See Restatement (Second) of Torts § 920 (1977). ² Under this view, the trier of fact is permitted to determine and award all past and future expenses and damages incurred by the parent, including the cost of rearing the child, but is also instructed that it should make a deduction for the benefits that the parents will receive by virtue of having a normal, healthy child. Stills v. Gratton, 55 Cal.App.3d 698, 708-09, 127 Cal.Rptr. 652, 658-59 (1976); Ochs v. Borelli, 187 Conn. 253, 259-60, 445 A.2d 883, 886 (1982); Troppi v. Scarf, 31 Mich.App. 240, 255, 187 N.W.2d 511, 519 (1971); Sherlock v. Stillwater Clinic, 260 N.W.2d 169, 175-76 (Minn.1977).

The hospital claims that the trial court was bound by law to adopt the first view, that the cost of rearing and educating the child are not compensable elements of damage. The Heimanns claim, on the other hand, that the proper rule is the second view, which permits the recovery of all damage and does not permit the jury to consider and offset benefits. We disagree with both positions.

We consider first the strict rule urged by the hospital. Various reasons are given by the courts which adopt the view that damages for rearing and educating the child cannot be recovered. Some cases base their decision on the speculative nature of the necessity to assess "such matters as the emotional affect of a birth on siblings as well as parents, and the emotional as well as pecuniary costs of raising an unplanned and, perhaps, an unwanted child in varying family environments." Coleman v. Garrison, 327 A.2d at 761. We think, however, that juries in tort cases are often required to assess just such intangible factors, both emotional and pecuniary, and see no reason why a new rule should be adopted for wrongful pregnancy cases. Another reason given for the strict view is the argument that the benefits which the parents will receive from having a normal, healthy child outweigh any loss which the parents might incur in rearing and educating that child. Terrell v. Garcia, 496 S.W.2d 124, 128 (Tex.Civ.App.1973). No doubt this is true in many cases, but we think it unrealistic to assume that it is true in all cases. We can envision many situations in which for either financial or emotional reasons, or both, the parents are simply unable to handle another child and where it would be obvious that from either an economic or emotional perspective--or both--substantial damage has occurred.

A third basis for the strict rule is the argument that the "injury is out of proportion to the culpability of the [wrongdoer]; and that the allowance of recovery would place too unreasonable a burden upon the [wrongdoer], since it would likely open the way for fraudulent claims ...." Beardsley v. Wierdsma, 650 P.2d 288, 292 (Wyo.1982). This, of course, is the hue and cry in many tort cases and in essence is no more than the fear that some cases will be decided badly. Undoubtedly, the system will not decide each case correctly in this field, just as it does not in any field, but here, as in other areas of tort law, we think it better to adopt a rule which will enable courts to strive for justice in all cases rather than to rely upon one which will ensure injustice in many. Brannigan v. Raybuck, 136 Ariz. 513, 519, ...