Walker by Pizano v. Mart

Decision Date12 April 1990
Docket NumberNo. CV-89-0065-CQ,CV-89-0065-CQ
Citation790 P.2d 735,164 Ariz. 37
PartiesChristy WALKER, a minor, by Laura Walker PIZANO, her mother, next friend and natural guardian; Laura Walker Pizano, individually, and Robert Pizano, individually, Plaintiffs, v. Buddy MART and Dwight Wensel, Defendants.
CourtArizona Supreme Court
OPINION

FELDMAN, Vice Chief Justice.

This case requires us to determine whether Arizona recognizes a cause of action for "wrongful life." The question was certified to us by the Chief Judge of the United States District Court for the District of Arizona. See Rule 27(a), Ariz.R.Sup.Ct., 17A A.R.S. Because it raises an important issue of first impression in this state, we accepted jurisdiction. See Rule 27(b), Ariz.R.Sup.Ct., 17A A.R.S. We have jurisdiction pursuant to A.R.S. § 12-1861 and Ariz. Const. art. 6, § 5(6). We exercise our discretion in accordance with the principles set forth in Torres v. Goodyear Tire & Rubber Co., Inc., 163 Ariz. 88, 90, 786 P.2d 939, 941 (1990).

FACTS AND PROCEDURAL HISTORY

The facts are set forth in the certification order and are assumed for purposes of this proceeding. Laura Walker (Laura) sought obstetrical care from Dr. Dwight Wensel, an osteopathic physician, and his licensed physician's assistant, Buddy Mart (defendants). Defendants negligently failed to perform adequate laboratory tests to detect that Laura had contracted rubella, commonly known as German measles, during the first trimester of her pregnancy. Thus, they failed to inform Laura of the resulting significant risk to the fetus.

If Laura had been informed that she had contracted German measles and of the attendant fetal risks, she would have aborted the fetus. In fact, on October 29, 1980, Laura gave birth to Christy Walker (Christy). Tragically, Christy was born with rubella syndrome, marked in her case by severe birth defects including cerebral palsy, deafness, and cardiac abnormalities.

Laura sued defendants in district court asserting her own claim for "wrongful birth" and a claim for "wrongful life" on Christy's behalf. 1 She sought special and general damages for both claims.

The gist of both claims is that defendants wrongfully deprived Laura of relevant information pertaining to the fetal risk, thereby preventing her from invoking her legal right to terminate the pregnancy. Christy alleges she was damaged by defendants' negligence because Laura, ignorant of the fetal risk, allowed the pregnancy to go to term. As a result, Christy was born and must now live in an impaired condition.

DISCUSSION
A. "Prenatal Torts"

Scientific advances now make it possible to control conception, to discover fetal injury, and to detect genetically transmitted disease or defect prior to and after conception. A woman may choose to terminate a pregnancy by abortion when there is fear that the fetus will be born with significant defects or injuries. See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). As a consequence, since the Roe decision, courts have been presented with a variety of actions brought by parents and infants against physicians and others whose acts or omissions allegedly resulted in the birth of an unwanted child.

Confusion often arises as to the proper denomination of these prenatal torts. Because this area of the law is new and fraught with emotion, both courts and commentators have often blurred the legal and theoretical distinctions among the actions. Believing those distinctions are vitally important to both theory and outcome, we commence with definitions of the terms generally used.

The cases fall into three general categories. The first is termed "wrongful conception or pregnancy." In such actions, parents of a normal but unplanned child seek damages either from a physician who allegedly was negligent in performing a sterilization procedure or abortion, or from a pharmacist or pharmaceutical manufacturer who allegedly was negligent in dispensing or manufacturing a contraceptive prescription or device. 2 Arizona recognized a wrongful pregnancy cause of action when parents sought damages upon the birth of their healthy, normal child after a failed vasectomy. See University of Arizona Health Sciences Center v. Superior Court, 136 Ariz. 579, 667 P.2d 1294 (1983).

The second category may be labeled "wrongful birth." In such cases, the parents of a child born with birth defects allege that the negligence of those charged with prenatal testing or genetic counseling deprived them of the right to make a timely decision regarding whether to terminate a planned pregnancy because of the likelihood that their child would be born physically or mentally impaired. 3

The third category of cases, known as "wrongful life," is brought by or on behalf of the children themselves. One variety of these actions involves claims of normal but unwanted children who seek damages either from parents, doctors, or institutions negligently responsible for their conception or birth. The action may be brought by children born as a result of a failure of a contraceptive method 4 or by illegitimate children who allege they are impaired by their status or lack of resources to sustain themselves. 5 Another type of wrongful life claim, like the one before us, is brought by impaired children. Usually, the children allege that because of defendants' negligence, their parents either decided to conceive them ignorant of the risk of impairment or were deprived of information that would have impelled them to terminate the pregnancy.

B. The Issue Refined

In University of Arizona we held that the parents of a healthy child may recover damages from a physician who negligently failed to prevent conception. 136 Ariz. at 586, 667 P.2d at 1301. Two justices dissented, arguing that because the child was healthy, damages should be limited to costs of birth. Id. at 587, 667 P.2d at 1302 (Gordon, V.C.J., concurring in part, dissenting in part). The dissenting members of the court agreed, however, that "if this were a case where the child were born seriously retarded, deformed, or chronically ill, [they] too would hold the health care provider responsible [to the parents] for the cost of lifetime support and care for the child." Id. at 586, 667 P.2d at 1301. Given Christy's condition, therefore, we acknowledge at the outset that we have already concluded that if parents establish that a physician's negligence prevented them from exercising their right of choice to terminate the pregnancy, they may bring a wrongful birth claim to recover damages in accordance with the principles established in University of Arizona.

The question certified, therefore, is narrowly framed and relates only to a child's action for wrongful life. We thus focus only on the issue as Chief Judge Bilby phrased it in the certification order:

Does a child born under the circumstances set forth [above] have a cause of action in tort for "wrongful life"?

C. The Present State of the Law

At least twenty states have now considered wrongful life claims. In three, the state's highest courts have recognized the action, allowing limited recovery. See Turpin v. Sortini, 31 Cal.3d 220, 182 Cal.Rptr. 337, 643 P.2d 954 (1982); Procanik v. Cillo, 97 N.J. 339, 478 A.2d 755 (1984); Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 656 P.2d 483 (1983). Courts in the other states have refused to recognize the action for a variety of reasons. See Annotation, Tort Liability for Wrongfully Causing One to be Born, 83 A.L.R.3d 15, §§ 3, 13-16 (1978 & Supp.1989); see also Trotzig, The Defective Child and the Actions for Wrongful Life and Wrongful Birth, 14 FAM.L.Q. 15 (1980). As in other situations, we choose between the minority and majority positions on the basis of logic and justice, rather than the weight of numbers.

Most courts that have considered the issue agree that, irrespective of labels, a plaintiff's claim of wrongful life sounds in negligence. See, e.g., Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 899, 386 N.E.2d 807, 811 (1978). To state a negligence claim, a complainant must identify a legal duty the defendant owed the plaintiff, prove the defendant's breach of that duty, and show an injury to the plaintiff proximately caused by the defendant's breach. See Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 706 P.2d 364 (1985). Thus, we analyze Christy's claim under traditional principles of negligence law.

D. Duty and Breach

A physician rendering prenatal care has a duty of due care to both the mother and the developing fetus. Summerfield v. Superior Court, 144 Ariz. 467, 698 P.2d 712 (1985). If the attending physicians had been negligent in rendering prenatal care and had thereby injured the fetus, Christy could have brought a tort action for the damages caused by the doctor's negligence. Id.; see generally Collins, An Overview and Analysis: Prenatal Torts, Preconception Torts, Wrongful Life, Wrongful Death, and Wrongful Birth: Time for a New Framework, 22 J.FAM.L. 677 (1983-84); Comment, Wrongful Life: A Misconceived Tort, 15 U.C. DAVIS L.REV. 447, 451 (1981) (child has had the right to sue for prenatal torts since 1946).

A physician also has a duty to inform parents about fetal problems and risks. Courts that have permitted a child's claim for wrongful life have found that the duty owed to the parent inures derivatively to the child. See Turpin; Procanik; Harbeson. Courts that have rejected the claim have also found such a duty. See, e.g., Azzolino v. Dingfelder, 315 N.C. 103, 337...

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