Williams v. Van Biber, WD

• Citation: 886 S.W.2d 10
• Decision Date: 22 February 1994
• Docket Number: No. WD,WD
• Parties: Jerald WILLIAMS and Tammy Williams, Appellants, v. Jeffrey VAN BIBER, M.D., Respondent. 47567.
• Court: Court of Appeal of Missouri (US)

Page 10

886 S.W.2d 10

Jerald WILLIAMS and Tammy Williams, Appellants, v. Jeffrey VAN BIBER, M.D., Respondent.

No. WD 47567.

Missouri Court of Appeals,

Western District.

Feb. 22, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 29, 1994.

Application for Transfer Sustained May 26, 1994.

Case Retransferred Nov. 22, 1994.

Court of Appeals Opinion Readopted Nov. 28, 1994.

Laurence R. Tucker, Watson, Ess, Marshall and Enggas, Kansas City, for appellants.

James Bandy, Blackwell Sanders Matheny Weary and Lombardi, Kansas City, for respondent.

Before KENNEDY, P.J., and ULRICH and SPINDEN, JJ.

ULRICH, Judge.

Plaintiffs Gerald and Tammy Williams, husband and wife, appeal the trial court's order sustaining the motion of Jeffrey Van Biber, M.D., defendant, to dismiss or for partial summary judgment as to the claims for medical expenses, loss of income and emotional distress associated with their son, Cody Williams' birth defects. The Williams initiated suit for the alleged failed vasectomy procedure performed on Mr. Williams by Dr. Van Biber. Cody was born to the Williams subsequent to the vasectomy procedure. A month after Cody's birth, his severely defective heart condition was discovered. He died approximately seven months following birth. Numerous medical procedures to correct or improve Cody's heart deformity and circulatory system were alleged by plaintiffs. The trial court entered judgment pursuant to Rule 74.01(b), making its decision final and appealable. The issue presented is whether Cody's parents may recover as damages medical expenses associated with Cody's birth defects and attempts to sustain Cody's life, and the lost income and emotional distress resulting from the birth defects, assuming for the limited purposes of this issue on appeal, the vasectomy performed on Mr. Williams was performed prior to Cody's conception, was inadequately or improperly performed, and constituted malpractice. Damages arising from the birth defects are not actionable. The judgment of the trial court sustaining Dr. Van Biber's motion to dismiss, or alternatively, for partial summary judgment, as to the damages associated with Cody's birth defects is affirmed.

During Tammy Williams' second pregnancy, she experienced several medical problems, including gestational diabetes. As a result of the medical difficulties experienced by Mrs. Williams, her obstetrician informed her that an additional pregnancy could place Mrs. Williams and her baby at jeopardy. He advised Mrs. Williams not to become pregnant again. Mr. and Mrs. Williams determined that to avoid pregnancy, Mr. Williams would sustain a vasectomy.

Jeffrey Van Biber, M.D., practices medicine in Bates County. As a result of the advice received by Mrs. Williams from her obstetrician, the Williams consulted Dr. Van Biber about the medical procedure associated with vasectomy. The plaintiffs allege that Dr. Van Biber failed to inform them of the risk that the vasectomy procedure could fail.

On August 25, 1989, Dr. Van Biber performed a vasectomy on Mr. Williams. Following standard procedure, a sample of Mr. Williams' semen was examined by Dr. Van Biber to determine the presence of sperm. The Williams were advised that the test revealed an absence of sperm, that Mr. Williams was sterile, and that the couple need not continue the use of contraceptives.

In May 1990, Mrs. Williams learned that she was pregnant. Dr. Van Biber examined an additional sample of Mr. Williams' semen on June 11, 1990, and identified viable sperm. During her pregnancy, Mrs. Williams was informed by her obstetrician that she was at some risk of having a child with birth defects, based on Mrs. Williams' family history.

On January 21, 1991, Cody Williams was born. Although appearing to be a healthy baby at birth, on February 26, 1991, Cody's heart deformities were diagnosed. Cody died seven months after birth.

During his brief life, Cody experienced several hospitalizations and several heart surgeries in attempts to correct the defects or sustain his life. As a result of the medical procedures Cody experienced, his parents incurred medical expenses totaling in excess of $211,000, for which the Williams seek judgment against Dr. Van Biber. Additionally, the Williams' petition seeks recovery for damages resulting from their lost income and emotional distress associated with Cody's birth defects.

The trial court sustained Dr. Van Biber's motion to dismiss, or, alternatively, motion for partial summary judgment as to the damages claimed by Mr. and Mrs. Williams associated with the congenital birth defects of their son and for the lost income and emotional distress associated with Cody's birth defects. The Williams appealed.

Mr. and Mrs. Williams contend that the trial court erred in sustaining Dr. Van Biber's motion to dismiss certain claims for damages for failure to state claims upon which relief can be granted or, alternatively, motion for partial summary judgment, asserting that damages resulting from Cody's congenital birth defects are recoverable in Missouri as the foreseeable result of the failed vasectomy procedure alleged to have been performed on Mr. Williams by the defendant.

Appellate courts review combined motions to dismiss or for summary judgment under a summary judgment standard of review. Board for Architects v. Earth Resources, 820 S.W.2d 505, 507 (Mo.App.1991). Appeals from summary judgments require the appellate court to review the record in the light most favorable to the party against whom judgment was entered and to accord the non-movant the benefit of all reasonable inferences from the record. ITT Commercial Finance Corp. v. Mid America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Review is essentially de novo, and the propriety of summary judgment is purely an issue of law. Id. The trial court's judgment is reviewed on the record submitted and the law. Id. Summary judgment is proper when no genuine issue of material facts exists and the moving party is entitled to judgment as a matter of law. Rule 74.04(c); Krause v. U.S. Truck Co., 787 S.W.2d 708, 709 (Mo. banc 1990).

In Missouri, the cause of action for the tort of wrongful conception was specifically recognized in Miller v. Duhart, 637 S.W.2d 183, 188 (Mo.App.1982), and reaffirmed recently in Girdley v. Coats, 825 S.W.2d 295 (Mo. banc 1992). The Supreme Court in Girdley listed the "consensus" that has developed labeling "(1) 'wrongful conception' or 'wrongful pregnancy'--a medical malpractice action brought by the parents of a child born after a physician negligently performed a sterilization procedure; (2) 'wrongful birth'--a claim brought by the parents of a child born with defects; and (3) 'wrongful life'--a claim brought by the child suffering from such defects." Girdley, 825 S.W.2d at 296. Missouri does not recognize the torts of wrongful birth or wrongful life. Wilson v. Kuenzi, 751 S.W.2d 741, 746 (Mo. banc 1988), cert. denied 488 U.S. 893, 109 S.Ct. 229, 102 L.Ed.2d 219 (1988); § 188.130, RSMo 1986. ¹

Girdley refused to allow, as damages for a wrongful conception action, the costs of raising a healthy, normal child. Girdley, supra at 298. The Girdley court held, inter alia, that costs of raising and educating a child were too speculative to determine wrongful conception damages. The Williams opine that their damages are clearly ascertainable and should be allowed.

The Supreme Court in Girdley adopted the measure of damages recoverable in a wrongful conception case as set forth in Duhart and included some additional approved damages. Girdley, 825 S.W.2d at 298-99. The actionable damages are: prenatal and postnatal medical expenses, the mother's pain and suffering during pregnancy and delivery; loss of consortium; the cost of a second, corrective sterilization procedure; emotional distress; loss of wages; pain and suffering associated with the second corrective procedure; and any permanent impairment (not economic impairment) suffered by the parents as a result of the pregnancy, delivery or second corrective procedure. Id. The Williams contend that postnatal medical expenses would include the medical expenses incurred on behalf of Cody in treating his congenital heart defect. The heart defect was discovered one month after his birth. The Williams claim that postnatal means "after birth," and maintain that medical treatments occurring "after birth" would by definition be postnatal medical treatments.

Costs for medical treatments to attempt the repair of birth defects not part of the immediate ² postnatal medical expenses of the baby, are not postnatal and are not authorized by Girdley. A determination of what medical treatment and within what time span the term "postnatal" encompasses, must of necessity, be limited to the facts and circumstances of each case. In this case, the baby was released two days after birth. All indications were that he was normal. Approximately one month later at a follow-up visit, the doctor discovered that Cody was afflicted with heart defects. Postnatal medical care for the purposes of Girdley damages, ended when Cody was discharged from the hospital in an apparently healthy condition. Girdley 's authorization of post-natal medical expenses does not include the medical expenses to treat Cody's heart defects.

Even were we to find that Girdley does not preclude additional...