Viccaro v. Milunsky

• Decision Date: 01 March 1990
• Citation: 551 N.E.2d 8,406 Mass. 777
• Parties: Amy S. VICCARO et al. 1 v. Aubrey MILUNSKY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 8

551 N.E.2d 8

406 Mass. 777

Amy S. VICCARO et al. ¹ v. Aubrey MILUNSKY.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Sept. 13, 1989.

Decided March 1, 1990.

Stephen M. Winnick (Robert A. Sullivan, Watertown, with him), for plaintiffs.

Timothy P. O'Neill (Susan M. Donnelly, Boston, with him), for defendant.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

WILKINS, Justice.

A judge of the United States District Court for the District of Massachusetts has certified novel questions of Massachusetts law to this court. See S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981). The judge asks whether a child who was born with a genetic defect and his parents have bases under Massachusetts law for recovery against a physician whose negligent preconception counseling led the parents to decide to conceive children.

The facts presented to us in association with the certified questions are brief. In November, 1976, not then married, the Viccaros consulted the defendant physician, a specialist in genetics, genetic disorders, and genetic counseling, concerning the possibility that Amy might have, or be a carrier of, a genetic disorder known as ectodermal dysplasia. ² The defendant concluded that Amy did not have the disease and that there should be no likelihood of her developing the disorder or of having affected children. In October, 1977, the Viccaros were married. Relying on the defendant's assurances, they bore children. Their first child, a daughter, was born in July, 1980, apparently healthy, without manifestations of the disorder. On March 27, 1984, Adam was born severely afflicted with anhidrotic ectodermal dysplasia. He will require special medical care throughout his life and will suffer substantial physical pain and mental anguish. The Viccaros have suffered and will continue to suffer severe emotional distress and substantial physical injuries (whose nature and cause are not disclosed on the record). Their complaint seeks, in addition to emotional distress damages, recovery of the extraordinary expenses for Adam's care, support, and education; their loss of companionship of a normal son; and their loss of the services and earnings of a normal son. ³

The Parents' Claim

We think it preferable to consider and decide questions concerning the parents' claim first. The first question as to them appears in the margin ⁴ and inquires as to whether there is in Massachusetts a cause of action against a physician for negligent preconception genetic counseling. The second question, also in the margin, ⁵ inquires about damages in specific detail. On the damage question, we shall answer only as to those elements of damage to which the Viccaros have argued they are entitled. ⁶

If a child is born with a congenital or genetic disorder, almost all courts have allowed the parents to recover against a negligent physician the extraordinary medical, educational, and other expenses that are associated with and are consequences of the disorder. See, e.g., Lininger v. Eisenbaum, 764 P.2d 1202, 1206-1207 (Colo.1988) (extraordinary medical and educational expenses of congenitally blind child, recoverable, even after his majority, if he will remain a legal dependent of parents; such damages not to be offset by any benefit to parents; no opinion expressed on emotional distress damages); Haymon v. Wilkerson, 535 A.2d 880, 885-886 (D.C.App.1987) (extraordinary medical and other expenses, recoverable; no claim made for ordinary child-rearing expenses; postmajority expenses left unresolved); Fassoulas v. Ramey, 450 So.2d 822, 823 (Fla.1984) (extraordinary costs of rearing defective child to majority allowed but not ordinary rearing costs); Siemieniec v. Lutheran Gen. Hosp., 117 Ill.2d 230, 260-262, 111 Ill.Dec. 302, 512 N.E.2d 691 (1987) (extraordinary expenses allowed but sought only for period of child's minority; emotional distress damages denied); Smith v. Cote, 128 N.H. 231, 242-247, 513 A.2d 341 (1986) (medical and educational costs and extra burden of care by parents attributable to child's impairment, recoverable, including post-majority costs, but no recovery for emotional distress); Schroeder v. Perkel, 87 N.J. 53, 68-69, 432 A.2d 834 (1981) (recovery allowed for incremental medical costs); Jacobs v. Theimer, 519 S.W.2d 846, 849 (Tex.1975) (expenses reasonably necessary for the care and treatment of child's physical impairment, recoverable); Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 477, 656 P.2d 483 (1983) (extraordinary medical, educational, and similar expenses attributable to defective condition, recoverable; emotional distress of parents also recoverable, offset by any emotional benefits from the child's birth); Dumer v. St. Michael's Hosp., 69 Wis.2d 766, 776, 233 N.W.2d 372 (1975) (additional medical and supportive expense occasioned by the child's deformities, recoverable). The only authority to the contrary that we have discovered is in North Carolina and Missouri. See Azzolino v. Dingfelder, 315 N.C. 103, 111, 337 S.E.2d 528 (1985) (no recovery for postconception negligence allegedly leading to birth of child with Down's Syndrome), cert. denied, 479 U.S. 835, 107 S.Ct. 131, 93 L.Ed.2d 75 (1986) (four-to-three decision). Compare Jackson v. Bumgardner, 318 N.C. 172, 180-181, 347 S.E.2d 743 (1986) (liability to parents for preconception negligence resulting in birth of healthy child); Gallagher v. Duke Univ., 852 F.2d 773, 776 (4th Cir.1988) (applying North Carolina law) (liability for preconception negligence resulting in birth of impaired child). See also Wilson v. Kuenzi, 751 S.W.2d 741, 745-746 (Mo.), cert. denied, 488 U.S. 893, 109 S.Ct. 229, 102 L.Ed.2d 219 (1988) (no liability for failure to advise of amniocentesis test that deprived mother of the chance to have an abortion); Shelton v. St. Anthony's Medical Center, 781 S.W.2d 48, 50 (Mo.1989) (liability for some consequences of negligent failure to interpret ultrasound tests properly).

We agree with the general rule that the Viccaros are entitled to recover the extraordinary medical and educational expenses and other extraordinary costs associated with caring for Adam. If the Viccaros prove that, when Adam attains his majority, they will remain liable for Adam's support, they will be entitled to recover for the extraordinary expenses they will incur during Adam's majority. In Massachusetts, a parent is liable for the support of an adult child if the child is physically or mentally impaired and incapable of supporting himself. Feinberg v. Diamant, 378 Mass. 131, 134, 389 N.E.2d 998 (1979). The emotional distress the Viccaros sustain as a result of the defendant's negligence and any physical harm caused by that emotional distress are also recoverable. See Burke v. Rivo, supra 406 Mass. at 768, 551 N.E.2d at 4.

The Viccaros' claim for the loss of Adam's society and companionship as a normal child lacks merit. The defendant is not responsible for the fact that Adam is afflicted with a substantial genetic disease. Although the defendant may be liable for certain damages because, had he not been negligent, according to the complaint, the Viccaros would not have conceived a child, the defendant cannot be liable for the Viccaros' loss of the companionship of a normal child.

We summarize our conclusions as to the parents' claims. Question 3, concerning the existence of a cause of action in the parents, we answer in the affirmative. There is one. We need not answer question 4(a) because the Viccaros do not press a claim for all financial burdens associated with raising Adam. In response to the two parts of question 4(b), we answer affirmatively that the Viccaros may recover for Adam's extraordinary medical needs and, as to the second question in question 4(b), in certain circumstances the Viccaros could recover for extraordinary expenses they may incur after Adam's majority. Because the Viccaros may recover damages for the cost of the extraordinary care that Adam needs, we answer the first question in question 4(c) in the affirmative. We do not have sufficient information, however, to answer the second part of question 4(c), concerning the parents' right to recover for wages they lost or will lose in providing extraordinary care to Adam. In general, damages should be measured by the fair market value of the necessary extraordinary services. Perhaps the parents' lost wages will be an appropriate measure of recovery in some special circumstance. As to question 4(d), the parents may recover for emotional distress and for physical harm caused by that emotional distress, offset by whatever emotional benefits they may derive from the existence of their first child and offset (as the Viccaros concede) by any benefits that may be derived from the existence of Adam. We do not know what other physical injuries this question may refer to. For completeness, although we are not asked to comment on the point, whatever emotional benefits the parents may derive from the children may also be offset against the extraordinary expenses the parents may incur.

We see no basis for the Viccaros to recover for the loss of Adam's society and companionship as a normal child, and thus we answer question 4(e) in the negative. Question 4(f) we answer in the negative because the Viccaros make no serious argument that they are entitled to recover for the loss of Adam's services as a normal child.

The Child's Claim

The judge has also asked us: "Does Massachusetts recognize a cause of action for wrongful life, where a minor child, afflicted with a genetic defect, alleges that the negligent preconception genetic counseling of his parents by a geneticist induced his parents to conceive and give birth to the child?" We answer the question in the negative. Because, as alleged by his parents, Adam would not have been born if the defendant had not been negligent, there is a fundamental problem of logic if Adam were allowed to recover...