Weintraub v. Brown

• Decision Date: 30 December 1983
• Citation: 98 A.D.2d 339,470 N.Y.S.2d 634
• Parties: Paul WEINTRAUB, et al., Appellants-Respondents, v. Donald BROWN, et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 634

470 N.Y.S.2d 634

98 A.D.2d 339

Paul WEINTRAUB, et al., Appellants-Respondents, v. Donald BROWN, et al., Respondents-Appellants.

Supreme Court, Appellate Division Second Department.

Dec. 30, 1983.

Simonson Hess & Liebowitz, P.C., New York City (Paul Simonson, New York City, on the brief), for appellants-respondents.

Clark Gagliardi & Miller, P.C., White Plains (Lawrence T. D'Aloise, Jr., White Plains, of counsel), for respondent-appellant Brown.

Meiselman, Farber, Stella & Eberz, P.C., Poughkeepsie (Dennis Gerard Ellis, Poughkeepsie, of counsel), for respondents-appellants Pappu and Lawrence Hosp.

Before MOLLEN, P.J., and DAMIANI, MANGANO and GULOTTA, JJ. MOLLEN, Presiding Justice.

The primary question to be resolved on these appeals is whether the parents of an unwanted, but otherwise healthy and normal child, may recover the ordinary costs of raising that child as damages resulting from the defendants' negligence in the performance of a surgical birth control procedure, and, thereafter, in the performance of studies to determine whether the procedure was a success. We begin with a brief review of the facts.

Paul and Rosemary Weintraub, the plaintiffs, instituted this medical malpractice action, alleging that in or about May, 1978, defendant Donald Brown, a licensed physician specializing in surgery and urology, performed a surgical birth control procedure commonly known as a vasectomy on Paul Weintraub at defendant Lawrence Hospital. Dr. Brown was on staff at the hospital and was assisted in the performance of the procedure by other hospital staff members. Defendant Suri Pappu is also a licensed physician and a staff member of Lawrence Hospital. He is a specialist in pathology and he performed pathological and tissue studies after the vasectomy to determine whether it was a success. Dr. Pappu conducted these studies with the assistance of hospital staff members.

Plaintiffs further alleged that defendants Brown, Pappu, and Lawrence Hospital performed the vasectomy and subsequent studies in a negligent manner, and that the negligence was compounded by Dr. Brown's failure to arrange for a postsurgical sperm count. ¹ After the vasectomy, the Weintraubs resumed marital relations, resulting in Mrs. Weintraub's impregnation and the birth of a child, which impregnation the vasectomy was intended to prevent. Mr. Weintraub then underwent a second vasectomy. There are no allegations that the child is other than normal and healthy or that defendants' conduct prevented plaintiffs from discovering or safely terminating the pregnancy.

The verified complaint sets forth five causes of action. In the second, third, and fifth causes, Mrs. Weintraub sought recovery for her physical injury and pain caused by the unplanned pregnancy and delivery, severe emotional distress, and loss of her husband's services and consortium. In the first and fourth causes, Mr. Weintraub sought recovery for his physical and emotional pain resulting from the failed vasectomy, his damages attributable to the second vasectomy, his wife's medical expenses, and loss of her services and consortium. In the second cause, both plaintiffs sought recovery for the cost of raising, nurturing and educating a child until the age of majority.

In accordance with CPLR 3211 (subd. [a], par. 7), defendants Pappu and Lawrence Hospital moved, and defendant Brown cross-moved, to dismiss causes two, three, four, and five, thereby conceding, as they do on appeal, that the first cause was legally sufficient. The court dismissed so much of the second cause as sought recovery of the ordinary costs of raising an unwanted child. However, it concluded that the remainder of the second cause was legally sufficient "insofar as it may be read to plead a cause of action on behalf of Mrs. Weintraub for physical injury and pain occasioned by her unanticipated pregnancy and delivery". The third cause, which sought damages on Mrs. Weintraub's behalf for severe emotional distress, was sustained to the extent of allowing recovery for "[a]ny emotional suffering occasioned by the actual or anticipated physical injury and pain resulting from [Mrs. Weintraub's] unanticipated pregnancy and delivery". The court sustained the fourth cause, brought on Mr. Weintraub's behalf, to recover his wife's medical expenses and for loss of consortium, "insofar as it [relates] to the pregnancy and delivery of the child". The court added that, "[w]hether any future expenses or loss of consortium will result therefrom is a question of proof at the trial." Finally, the fifth cause, brought on Mrs. Weintraub's behalf for loss of consortium was found to be legally sufficient "with respect to Mr. Weintraub's vasectomies", the court observing that "the issue of any loss in the future will depend on the proof at trial". Plaintiffs appeal and defendants cross-appeal.

At the outset, we note that the five causes of action set forth in the Weintraubs' complaint are brought under common-law negligence or medical malpractice principles (see Sorkin v. Lee, 78 A.D.2d 180, 181, 434 N.Y.S.2d 300 [opn of SIMONS, J., then Associate Justice of the App.Div., 4th Dept., now Associate Judge of the Ct of Appeals], app. dsmd. 53 N.Y.2d 797; cf. Becker v. Schwartz, 46 N.Y.2d 401, 410, 413 N.Y.S.2d 895, 386 N.E.2d 807). Recent interest in this area of the law has resulted in the collective labelling as "wrongful birth" or "wrongful life" actions based upon several fundamentally distinct theories, viz., wrongful birth, wrongful life, wrongful pregnancy or conception, and wrongful diagnosis (see Becker v. Schwartz, supra, pp. 408-410, 413 N.Y.S.2d 895, 386 N.E.2d 807; Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 656 P.2d 483, 487-488, 494; University of Ariz. Health Sciences Center v. Superior Court of State of Ariz., County of Maricopa, 136 Ariz. 579, 667 P.2d 1294, 1296, n. 1 [Ariz] ).

The theory upon which the plaintiffs' causes of action are based is the so-called wrongful pregnancy or wrongful conception type, "wherein parents, one of whom has undergone an unsuccessful surgical birth control procedure, have sought damages for the birth of an unplanned child. There, damages have not been sought on behalf of the child--a healthy and normal infant--but by the parents for expenses attributable to the birth, including the pecuniary expense of rearing the child" (Becker v. Schwartz, supra, p. 409, 413 N.Y.S.2d 895, 386 N.E.2d 807). Although the Court of Appeals has not as yet passed on the issue, we have held, as have the Appellate Divisions in the other three Judicial Departments, that a cause of action for medical malpractice predicated on a physician's negligence resulting in the birth of a normal child states a legally cognizable claim (see Debora S. v. Sapega, 56 A.D.2d 841, 392 N.Y.S.2d 79; Sala v. Tomlinson, 73 A.D.2d 724, 422 N.Y.S.2d 506, mot. for lv. to app. dsmd. 49 N.Y.2d 701, 426 N.Y.S.2d 1026, 403 N.E.2d 187; Sorkin v. Lee, supra, p. 78 A.D.2d 181, 434 N.Y.S.2d 300; Mears v. Alhadeff, 88 A.D.2d 827, 451 N.Y.S.2d 133). ² Both the Third and Fourth Departments have sustained the legal sufficiency of claims seeking recovery, in wrongful conception cases, of damages for, inter alia, medical expenses, loss of services and consortium, physical injury and pain arising from the unanticipated pregnancy (see Sala v. Tomlinson, supra; Sorkin v. Lee, supra ). These same courts have affirmed dismissals of causes seeking recovery of the ordinary costs of raising an unwanted but otherwise healthy and normal child, holding in essence that such claims are not legally cognizable (see Sala v. Tomlinson, supra, 73 A.D.2d p. 726, 422 N.Y.S.2d 506; Sorkin v. Lee, supra, 78 A.D.2d p. 181, 434 N.Y.S.2d 300). On this appeal we are called upon to determine what elements of damage plaintiffs may properly recover.

There is widespread agreement among the several jurisdictions that have considered the issue that complaints alleging wrongful conception state a valid cause of action (see Ann., Tort Liability For Wrongfully Causing One To Be Born, 83 ALR3d 15, 29). There also is general agreement that the plaintiffs in a wrongful conception action may recover from the tort-feasor for the expenses of the unsuccessful sterilization procedure, the pain and suffering associated with the pregnancy, the costs of delivery, lost wages, and loss of consortium (Ann., 83 ALR3d at pp 29-30). Disagreement has focused on the issue of whether the plaintiffs in such actions may recover the ordinary costs of raising their unwanted, but normal and healthy, child.

Our research discloses that the majority of jurisdictions deny recovery of child-rearing costs (see Boone v. Mullendore, 416 So.2d 718 [Ala.]; Wilbur v. Kerr, 275 Ark. 239, 628 S.W.2d 568; Coleman v. Garrison, 349 A.2d 8 [Del.]; Public Health Trust v. Brown, 388 So.2d 1084 [Fla.App.]; White v. United States, 510 F.Supp. 146 [D.Kan.]; Cockrum v. Baumgartner, 95 Ill.2d 193, 69 Ill.Dec. 168, 447 N.E.2d 385, cert. den. sub. nom. Raja v. Michael Reese Hosp. & Med. Center, 464 U.S. 846, 104 S.Ct. 149, 78 L.Ed.2d 139 [1983]; Schork v. Huber, 648 S.W.2d 861 [Ky.]; Kingsbury v. Smith, 122 N.H. 237, 442 A.2d 1003; P. v. Portadin, 179 N.J.Super. 465, 432 A.2d 556; Mason v. Western Pa. Hosp., 499 Pa. 484, 453 A.2d 974; Terrell v. Garcia, 496 S.W.2d 124 [Tex.Civ.App.], cert. den. 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484; McNeal v. United States, 689 F.2d 1200; Rieck v. Medical Protective Co., 64 Wis.2d 514, 219 N.W.2d 242; Beardsley v. Wierdsma, 650 P.2d 288 [Wyo.]; see, also, Ball v. Mudge, 64 Wash.2d 247, 391 P.2d 201).

Recovery is most frequently denied for what may be broadly called "public policy" reasons, the basis of which is the view that the birth of a healthy and normal child cannot, as a matter of law, constitute an injury to the child's parents. Illustrative of this view is Public Health Trust v. Brown (supra, pp. 1085-1086):

"In holding that such a claim should not be...