Willis v. Wu

• Decision Date: 20 December 2004
• Docket Number: No. 25915.,25915.
• Citation: 607 S.E.2d 63,362 S.C. 146
• Parties: Jennie WILLIS, as guardian ad litem for Thomas Willis, a minor under the age of fourteen years, Appellant, v. Donald S. WU, M.D., and Donald S. Wu., M.D., P.A., Respondents.
• Court: South Carolina Supreme Court

362 S.C. 146

607 S.E.2d 63

Jennie WILLIS, as guardian ad litem for Thomas Willis, a minor under the age of fourteen years, Appellant, v. Donald S. WU, M.D., and Donald S. Wu., M.D., P.A., Respondents.

No. 25915.

Supreme Court of South Carolina.

Heard November 4, 2004.

Decided December 20, 2004.

O. Fayrell Furr, Jr. and Karolan F. Ohanesian, both of Furr, Henshaw & Ohanesian, of Myrtle Beach, and Glenn V. Ohanesian of Ohanesian & Ohanesian, of Myrtle Beach, for Appellant.

Stephen Brown, John Hamilton Smith, and D. Jay Davis, Jr., all of Young, Clement, Rivers & Tisdale, of Charleston, for Respondents. Justice BURNETT:

In this appeal, we are asked to decide the novel issue of whether South Carolina will recognize a common law cause of action for "wrongful life" brought by or on behalf of a child born with severe congenital defects. This case was certified for review from the Court of Appeals pursuant to Rule 204(b), SCACR. We decline to recognize such a cause of action.

FACTUAL AND PROCEDURAL BACKGROUND

Jennie Willis (Mother), in her capacity as guardian ad litem for her minor son, Thomas Willis (Child), brought a "wrongful life" action on behalf of Child against Donald S. Wu (Physician). Child alleges, because Physician failed to adequately and timely diagnose his condition by prenatal testing and inform Mother the results, Mother was denied the opportunity to decide whether to terminate the pregnancy while legally allowed to do so. See S.C.Code Ann. §§ 44-41-10 to -85 (2002) (prohibiting abortions after the twenty-fourth week of gestation unless two unrelated physicians certify in writing it is necessary to preserve the life or health of the mother).

Specifically, Child alleges Physician was negligent in failing to timely perform or comprehend the significance of ultrasound examinations which indicated the presence of hydrocephalus in the fetus, a congenital defect that in Child's case had devastating consequences. Child's medical experts testified Physician and his ultrasound technician failed to diagnose Child's condition and inform Mother in time for her to decide whether to terminate the pregnancy.

Child was born with maximal hydrocephalus, a condition in which the cerebral hemispheres of his brain are missing. Those areas of the brain control thinking, motor control, the ability to speak and move voluntarily, and the ability to interact with others. A CT scan of Child's head at birth showed a very large head filled with fluid, with brain tissue seen only in the frontal and temporal lobes and a brain stem. Physicians placed a shunt in Child's head at birth to drain the fluid and prevent his head from growing larger.

Mother is the primary caregiver for Child, who is now eight years old. Child receives various forms of therapy at home and school. He will never be able to care for himself independently. His physical condition and mental abilities are about the same as they were at the age of a few months.

The circuit court granted Physician's motion for summary judgment on the wrongful life action, ruling South Carolina does not recognize it. Child appeals.

ISSUE

Does South Carolina recognize a common law cause of action for "wrongful life" brought by or on behalf of a child born with a congenital defect?

STANDARD OF REVIEW

A trial court may properly grant a motion for summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), SCRCP; Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997). In determining whether any triable issues of fact exist, the court must view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the non-moving party. Manning v. Quinn, 294 S.C. 383, 365 S.E.2d 24 (1988). On appeal from an order granting summary judgment, the appellate court will review all ambiguities, conclusions, and inferences arising in and from the evidence in a light most favorable to the appellant, the non-moving party below. Williams v. Chesterfield Lumber Co., 267 S.C. 607, 230 S.E.2d 447 (1976).

In a case raising a novel question of law, the appellate court is free to decide the question with no particular deference to the lower court. I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 411, 526 S.E.2d 716, 719 (2000) (citing S.C. Const. art. V, §§ 5 and 9, S.C.Code Ann. § 14-3-320 and -330 (1976 & Supp.2003), and S.C.Code Ann § 14-8-200 (Supp.2003)); Osprey, Inc. v. Cabana Ltd. Partnership, 340 S.C. 367, 372, 532 S.E.2d 269, 272 (2000) (same); Clark v. Cantrell, 339 S.C. 369, 378, 529 S.E.2d 528, 533 (2000) (same).

LAW AND ANALYSIS

Child urges we recognize a wrongful life action because there are times when it is better that a child not be born; such cases can be resolved within existing principles of medical malpractice law as they pertain to an unborn child or infant; damages, including extraordinary expenses related to the defective condition and actual damages for the child's pain, suffering, and emotional distress, are ascertainable; and the action should be recognized in a world where people may prepare "living wills" rejecting medical care in certain circumstances, and capital punishment is allowed under the law.

Physician argues we should reject the action, as most states have done, because courts and juries are incapable of awarding damages, which would require weighing an impaired existence against non-existence; the theory amounts to a repudiation of the value and sanctity of human life; and being born is not a legally cognizable injury. At the outset, it is important to set forth basic definitions of the terms "wrongful life," "wrongful birth," and "wrongful pregnancy." The terms are used to describe a variety of cases arising under different factual circumstances, and courts have recognized the terms are somewhat misleading and not always used in a consistent manner. E.g., Hester v. Dwivedi, 89 Ohio St.3d 575, 733 N.E.2d 1161, 1163 (2000)

(recognizing "overreliance on terms such as wrongful life or wrongful birth creates the risk of confusion in applying principles of tort law to actual cases, and may compound or complicate resolution of the case"); Reed v. Campagnolo, 332 Md. 226, 630 A.2d 1145, 1150 (1993) (explaining the term "wrongful life" is not instructive, as any wrongfulness is in the negligence of the physician, not the life of the child; any harm is not the birth itself, but the effect of the defendant's alleged negligence resulting in the denial of the parent's right to decide whether to bear a child with a genetic or other defect); Lininger by Lininger v. Eisenbaum, 764 P.2d 1202, 1204 n. 2 (Colo.1988) (en banc) ("use of the terms `wrongful life' and `wrongful birth' more often serves to obscure the issues than to elucidate them; unfortunately the labels are so entrenched in normal usage that it is difficult to entirely abstain from their use"); Siemieniec v. Lutheran Gen. Hosp., 117 Ill.2d 230, 111 Ill.Dec. 302, 512 N.E.2d 691, 695 (1987) ("Because the courts and the commentators have been less than precise in their utilization of these terms, the legal and theoretical distinctions between the torts often have been blurred. Hence, thoughtful analysis of the validity of wrongful birth and wrongful life as emerging legal concepts requires, in the first instance, a clear understanding of the alleged wrong upon which the cause of action is predicated."). Regardless, the terms have become embedded in the law since the mid-1970s and most courts appear to endorse the following definitions:

A "wrongful life" action is brought by or on behalf of the child himself. The child alleges, because of the defendant's negligence, his parents either decided to conceive him ignorant of the risk of an impairment or birth defect, or were deprived of information during gestation that would have prompted them to terminate the pregnancy. The child alleges, but for the defendant's negligence, he would not have been born. The birth defect or impairment itself occurred naturally, i.e., it was not directly caused by an act or omission of the defendant health care provider.

A "wrongful birth" action is brought by the parent of a child born with an impairment or birth defect. The parent alleges 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 pregnancy because of the likelihood their child would be born physically or mentally impaired. The birth defect or impairment itself occurred naturally, i.e., it was not directly caused by an act or omission of the defendant health care provider.

A "wrongful pregnancy" or "wrongful contraception" action is brought by the parent of a healthy but unplanned child, seeking damages from a health care provider 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. Kush v. Lloyd, 616 So.2d 415, 417 nn. 2 and 3 (Fla.1992); Walker by Pizano v. Mart, 164 Ariz. 37, 790 P.2d 735, 737-38 (1990); Lininger, 764 P.2d at 1204; Bruggeman by Bruggeman v. Schimke, 239 Kan. 245, 718 P.2d 635, 638 (1986)

; Turpin v. Sortini, 31 Cal.3d 220, 182 Cal.Rptr. 337, 643 P.2d 954, 957 (1982) (en banc); Gregory G. Sarno, Tort Liability for Wrongfully Causing One to Be Born, 83 A.L.R.3d 15 (1978); James Bopp, Jr., et al., The "Rights" and "Wrongs" of Wrongful Birth and Wrongful Life: A Jurisprudential Analysis of Birth Related Torts, 27 Duq. L.Rev. 461, 464-65 (1989) (explaining why courts should refuse to recognize either action); Mark Strasser, Wrongful Life, Wrongful Birth, Wrongful Death and the...