Williams v. Hook

• Decision Date: 26 December 1990
• Docket Number: No. 69979,69979
• Citation: 804 P.2d 1131
• Parties: Annie Jean WILLIAMS as Guardian of Cynthia A. Thomas, Incompetent, and as Guardian of Cherionique Deanne Thomas and Charmaine DeAnne Thomas, Minor Children of Cynthia A. Thomas, Plaintiffs/Appellants, v. Carl HOOK, M.D.; Ear, Nose & Throat of Southern Oklahoma, Inc.; and Gary Paddack, M.D., Defendants/Appellees.
• Court: Oklahoma Supreme Court

Page 1131

804 P.2d 1131

1990 OK 136

Annie Jean WILLIAMS as Guardian of Cynthia A. Thomas,

Incompetent, and as Guardian of Cherionique Deanne

Thomas and Charmaine DeAnne Thomas,

Minor Children of Cynthia A.

Thomas, Plaintiffs/Appellants, v. Carl HOOK, M.D.; Ear, Nose & Throat of Southern Oklahoma, Inc.; and Gary Paddack, M.D., Defendants/Appellees.

No. 69979.

Supreme Court of Oklahoma.

Dec. 26, 1990.

As Corrected Feb. 1, 1991.

As Corrected on Denial of Rehearing Feb. 11, 1991.

Certiorari to the Court of Appeals Division I, Ronald L. Jones, Trial Judge.

The trial court sustained a motion to dismiss an action to recover for the loss of parental consortium. We find that a minor child or an incapacitated dependent child has a cause of action for the permanent loss of parental consortium when a parent is negligently injured by a third party.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED; TRIAL COURT REVERSED AND REMANDED.

Monty L. Bratcher, Edmond, for plaintiffs/appellants.

Calvin W. Hendrickson, J. Roger Hurt, Oklahoma City, for defendants/appellees, Carl Hook, M.D., Ear, Nose & Throat of Southern Oklahoma, Inc. and Gary Paddack, M.D.

Austin Deaton, Ada, for appellee, Gary Paddack, M.D.

Kenneth R. Johnson, Lisa G. Lane, Ada, for appellee, Carl Hook, M.D., Ear, Nose & Throat of Southern Oklahoma, Inc.

Kauger, Justice:

The first impression issue presented is whether minor children or incapacitated dependent children may maintain a cause of action for the permanent loss of parental consortium ¹ when a parent is negligently injured by a third party. We find that they may.

ALLEGED FACTS

Cynthia A. Thomas (Thomas) first sought treatment from the defendant/appellee, Carl Hook, M.D. (Hook/doctor), on January 5, 1982, for relief of sinus drainage and infection. Hook performed a septoplasty on January 18, 1982, to clear Thomas' sinus passages, and Thomas recovered from the surgery without incident. Thomas consulted Hook again in 1985, and Hook prescribed medication for nasal congestion. When Thomas came to see Hook in July of 1986, complaining of sinus congestion and headaches, Hook's examination revealed that Thomas' nasal cavity was obstructed by polyps. Thomas was scheduled for a second surgery at Valley View Regional Hospital on August 12, 1986, and the next day, Hook performed surgery to clear Thomas' sinus and nasal cavities. When she arrived in the recovery room after the surgery, she was nonresponsive, could not follow commands, and could not control her bladder. Hook transferred Thomas to the Coronary Care Unit for continual cardiac monitoring, and consulted with an internist. The next morning, results of a CT scan indicated that Thomas' skull had been pierced during surgery, and that the brain was swollen. Thomas was taken by helicopter to Baptist Medical Center.

The second surgery left Thomas with some paralysis, memory loss, difficulty in communicating, and disorientation. She lacks bladder control, and must wear diapers. She is neither mentally nor physically capable of caring for herself. At the time of the operation, Thomas was twenty-one years old, unmarried, with two children--one five and one three. Since the surgery, Thomas has been unable to relate to her daughters, and she must have twenty-four hour supervision. Because her condition is permanent, Thomas' two daughters have been left without a mother's care or supervision.

On October 28, 1986, the plaintiff/appellant, Annie Jean Williams (Williams), acting on behalf of her daughter, Thomas, filed a medical malpractice action against Hook. Williams sought recovery for her daughter's medical expenses, lost earnings, pain and suffering, and for punitive damages. Acting in her capacity as guardian of Thomas' two minor children, Williams amended the petition on June 8, 1987, to include a cause of action for the children's loss of their mother's care, guidance, training, society, comfort, and companionship. The children's prayer for relief includes actual and punitive damages. On June 23, 1987, Hook moved to dismiss the children's claim for parental consortium for failure to state a claim upon which relief could be granted. The trial court sustained Hook's motion to dismiss on November 3, 1987. The Court of Appeals reversed the trial court holding that Oklahoma recognizes a cause of action for the permanent loss of parental consortium. We granted certiorari on February 21, 1990, to consider this first impression question.

A MINOR CHILD MAY MAINTAIN A CAUSE OF ACTION FOR THE

PERMANENT LOSS OF PARENTAL CONSORTIUM THROUGH ITS

GUARDIAN AD LITEM OR NEXT FRIEND WHEN A

PARENT IS NEGLIGENTLY INJURED

BY A THIRD PARTY.

Hook argues that there is no foundation in Oklahoma law to support a cause of action for the loss of parental consortium. Williams counters asserting that support for recognition of a cause of action for loss of parental consortium is found in the Oklahoma Constitution, the Oklahoma statutes, and decisions of this Court.

Although a majority of courts which have considered the issue have refused to recognize a child's cause of action based on loss of parental consortium resulting from negligent injury to a parent, ² the majority rule has been severely criticized by legal commentators, ³ and a substantial number Jurisdictions which have refused to recognize recovery have done so for a number of reasons--the fear of a multiplicity of actions, the difficulty of assessing damages, the fear of double recovery, and the burden which might be placed on society. ⁸ However, even these courts note that the child suffers a real and serious loss when a parent is injured, ⁹ and that because of the Duplicity of recovery is probably the most touted reason for denying recognition of the cause of action. However, it is also the most easily disposed of once the nature of the cause of action for the loss of parental consortium is understood. Pecuniary damages such as lost income which might be used for the benefit of a child or for the cost of substitute child care services are damages recoverable in the parent's action. The entire sum which would have been available as a resource for the parent to provide support and benefits to the child, be they essential or recreational, is recovered by the parent. A cause of action for loss of parental consortium is limited primarily to an award based on the emotional suffering of the child, ¹¹ and recovery is limited to loss of the parent's society and companionship. ¹² Allowing a child through its guardian ad litem or next friend to recover individually for injuries actually suffered need not create the feared imbalance. There is no need for the child to recover for economic disadvantages it might suffer due to the parent's injury. That item is recoverable by the parent. ¹³ A proper jury instruction that the child's damages are separate and distinct from the parent's injury will prevent double recovery on items considered in the parent's award. ¹⁴

                of courts now recognize the claim. 4  The cause of action was first recognized in 1980 by the Supreme Judicial Court of Massachusetts in Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 413 N.E.2d 690, 696, 11 A.L.R.4th 518, 527 (1980).  Since that time, the right to recover for the loss of a parents' love, care, companionship, and guidance has been recognized in ten jurisdictions. 5  Three courts which had previously denied recovery have now recognized a cause of action for loss of parental consortium. 6  These decisions seem to represent an emerging trend toward acknowledgment of the cause of action. 7
                erosion of the traditional concept of a child as a chattel, 10 lack of precedents may be a poor excuse to refuse to acknowledge the cause of action
                

Courts which have accepted a cause of action for loss of parental consortium have found the concerns of double recovery and speculation on the appropriate amount of damages recoverable to be unfounded. These problems exist in other actions for the loss of consortium, in wrongful death actions, and in claims for emotional distress or for pain and suffering. ¹⁵ Support for allowing the cause of action is found in the increased recognition and awareness of children as persons with rights ¹⁶ rather The reasons for recognizing a child's cause of action for loss of parental consortium outweigh any problems the action may present. ¹⁸ Although a monetary compensation will not allow a child to regain what was lost when the parent was injured, ¹⁹ it may aid in ensuring the child's continued normal and complete mental development into adulthood, and lessen the impact of the loss. ²⁰ Another basis for acknowledging the right to recover is that society and the courts are becoming increasingly aware of children as persons with rights. ²¹ Because a child has to deal with the day-to-day realities of the disabilities of a severely injured parent, the child may suffer more intense and enduring mental anguish and suffering than would be the case if the parent died. ²² Children whose parents suffer extensive injuries, are deprived of any further parent-child exchange throughout the remainder of their childhood years, and lack an essential role model. ²³ Logic, justice, and public policy demand protection for a child's interest in the family relationship.

than as parental property. ¹⁷

We have reviewed the arguments on both sides and find the arguments favoring the cause of action for loss of parental consortium more persuasive--we are hard pressed to find a distinction between allowing children to recover for the loss of consortium a child suffers through the actual death of a parent under 12 O.S.1981 § 1053 ²⁴ and refusing to allow recovery for the loss of consortium when for all practical purposes the parent is in a state which equates death. Here, two minor children have been deprived of the love, care, and companionship of their mother. Allowing a child to recover for the loss of parental consortium may aid...