Zehr v. Haugen

Decision Date21 April 1994
Citation871 P.2d 1006,318 Or. 647
CourtOregon Supreme Court
PartiesBrian ZEHR and Jonni Zehr, husband and wife, Respondents on Review, v. Richard D. HAUGEN, M.D.; Women's Care Associates of Lane County, P.C.; Sacred Heart General Hospital, assumed business registered by Sisters of St. Joseph of Peace, Health and Hospital Services, a Washington non-profit corporation, Petitioners on Review, and Eugene Obstetrical Clinic, Defendant. CC 16-91-01871; CA A71334; SC S40590 (Control), S40644.

John F. Kilcullen, of Brown, Roseta, Long & McConville, Eugene, argued the cause for petitioners on review Richard D. Haugen, M.D., and Women's Care Associates of Lane County, P.C. With him on the petition was Richard A. Roseta.

Josephine H. Mooney, of Calkins & Calkins, Eugene, argued the cause and filed the petition for petitioner on review Sacred Heart Gen. Hosp.

D. Lawrence Wobbrock, Portland, argued the cause for respondents on review. With him on the response were Kathryn H. Clarke and Maureen Leonard, Portland.

Anthony A. Allen, of Law Offices of Michael B. Dye, Salem, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Ass'n.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, UNIS and GRABER, JJ.

GRABER, Justice.

In this civil case, we are called on to answer these questions: (1) Did the trial court err in refusing plaintiffs' request for oral argument on defendants' motions to dismiss their claims and, if so, is reversal of the trial court's rulings required? (2) Do plaintiffs' allegations relating to the failure to perform a sterilization procedure, resulting in the birth of a normal, healthy child, state claims for negligence, breach of contract, and breach of warranty? (3) If the allegations state facts sufficient to constitute one or more of those claims, are plaintiffs entitled to allege, as damages, expenses of raising the child and providing for the child's college education?

We answer those questions as follows: (1) The trial court erred in refusing plaintiffs' request for oral argument, but that error does not require reversal. (2) Plaintiffs' allegations state claims for negligence and breach of contract, but not for breach of warranty. (3) Plaintiffs are entitled to allege, as damages, the described expenses in connection with their claims for negligence and breach of contract.

Plaintiffs are a husband and wife. Defendants are a physician and his professional corporation (physician) and the hospital where physician treated plaintiff wife. In the present action, plaintiffs allege that defendants were negligent in various particulars in carrying out an agreement to perform a tubal ligation on wife at the time of the Caesarean delivery of her second child. Plaintiffs also allege breach of contract and breach of warranty against defendant physician 1 in connection with his alleged failure to perform the tubal ligation. Plaintiffs allege that, as a result of defendant's failure properly to perform the tubal ligation, wife became pregnant and gave birth to a third child. 2 Plaintiffs sought economic damages from both defendants related to the costs of the pregnancy and birth and to the "future costs" of raising and educating the third child. They also sought noneconomic damages related to emotional suffering and to plaintiffs' changed family situation resulting from the birth of that child.

Pursuant to ORCP 21 A, 3 defendants moved to dismiss each of plaintiffs' claims, on the ground that the allegations therein failed to state ultimate facts sufficient to constitute claims for relief. In regard to plaintiffs' claim for negligence, defendants argued that the tort of "wrongful pregnancy" is not recognized in Oregon. In regard to plaintiffs' claims for breach of contract and breach of warranty, defendants argued that plaintiffs' allegations sound only in tort. Finally, and in the alternative, defendants argued that, as to damages, plaintiffs are not entitled to "child-rearing expenses."

Pursuant to UTCR 5.050(1), 4 plaintiffs requested oral argument on defendants' motions. The trial court refused plaintiffs' request and granted all of defendants' motions.

Plaintiffs appealed, arguing that the trial court erred in refusing their request for oral argument and that it erred in granting defendants' motions. The Court of Appeals held that the trial court's refusal to allow oral argument was an error requiring reversal. Zehr v. Haugen, 121 Or.App. 489, 491, 855 P.2d 1127 (1993). The Court of Appeals also addressed other assignments of error that were likely to arise on remand. That court concluded that plaintiffs stated a claim for negligence in the form of an "ordinary claim for medical malpractice" and that plaintiffs alleged at least "some damages that flow directly from defendants' failure to perform the procedure, i.e., expenses of pregnancy and birth, and lost wages during pregnancy and convalescence." Id. at 492, 855 P.2d 1127 (emphasis in original). That court also concluded that the trial court erred in dismissing plaintiffs' claims for breach of contract and breach of warranty, because defendant's "obligation to perform the sterilization procedure with due care arose out of tort law, but the * * * obligation to perform in the first place arose out of the agreement" between plaintiffs and defendants. Id. at 492-93, 855 P.2d 1127. The court declined to decide whether plaintiffs were entitled to damages related to raising the child and providing for the child's college education. Id. at 493, 855 P.2d 1127. The court reversed the judgment of the circuit court and remanded the case. Ibid. This court then allowed defendants' petition for review.

ORAL ARGUMENT ON MOTIONS TO DISMISS

We first consider whether the trial court erred in refusing plaintiffs' request, pursuant to UTCR 5.050(1), for oral argument on defendants' motions to dismiss and whether, if error, the trial court's action requires reversal.

This court has not previously considered the meaning or application of UTCR 5.050(1), set out at note 1, above. UTCR 5.050(1) is expressed in mandatory terms: "There must be oral argument" if requested in the form specified. (Emphasis added.) If the text of the rule leaves any doubt, the history of the rule's creation demonstrates conclusively that UTCR 5.050(1) requires a trial court to grant oral argument if it is requested in the form specified. See Minutes, Uniform Trial Court Rules Committee, February 23, 1985, p. 3 (listing considerations militating in favor of allowing parties to obtain oral argument as a matter of right). Neither is the rule an empty gesture. Oral argument is an important way in which counsel communicate to the court the efficacy of their clients' positions, and it is the only opportunity for the court fully to inform itself through a process of questions and answers. The trial court erred in refusing plaintiffs' request, made in the form specified in the rule, for oral argument.

That error does not require reversal, however, unless plaintiffs were prejudiced by it, that is, unless the error substantially affected plaintiffs' rights. See ORS 19.125(2) (providing that no judgment shall be reversed or modified except for error substantially affecting the rights of a party). Notwithstanding the value of oral argument generally, the record in this case does not demonstrate that plaintiffs were prejudiced by the trial court's refusal of their request for oral argument. 5 The trial court's error in refusing plaintiffs' request for oral argument, therefore, does not require reversal. The Court of Appeals' contrary ruling was error.

NEGLIGENCE CLAIM

Because the trial court's ruling on plaintiffs' request for oral argument does not require reversal, we next consider whether any of plaintiffs' other assignments of error on appeal requires reversal of the trial court's disposition of the case. We begin by considering whether the trial court erred in granting defendants' motions to dismiss plaintiffs' claim for negligence.

In Count I of their second amended complaint, plaintiffs allege that defendant physician is a medical doctor licensed to practice in Oregon, that physician practices the specialty of obstetrics, and that defendant hospital is licensed to provide medical care. Plaintiffs allege that defendant physician was negligent in failing, at the time of the Caesarean delivery of plaintiff wife's second child, to perform a tubal ligation on wife as she had requested and as defendants had agreed. Plaintiffs allege that defendant hospital was negligent in failing to "make proper notation in the appropriate medical records regarding the need for tubal ligation," in failing properly to inform physician of wife's request for a tubal ligation, in failing to ensure that a tubal ligation was performed, and in failing to notify plaintiffs that a tubal ligation was not performed. Plaintiffs allege that defendants' negligence caused plaintiff to remain fertile, to become pregnant, and to deliver a child. Finally, plaintiffs allege that they incurred economic and noneconomic damages in specified particulars as a result of defendants' negligence.

In Stevens v. Bispham, 316 Or. 221, 851 P.2d 556 (1993), this court discussed the requirements for a claim of negligence against a professional person who performed a service for the plaintiff. This court held that, in an action for legal or other form of professional malpractice, the plaintiff ordinarily must allege and prove (1) a duty that runs from the defendant to the plaintiff; (2) a breach of that duty; (3) a resulting harm to the plaintiff measurable in damages; and (4) causation, i.e., a causal link between the breach of duty and the harm. Id. at 227, 851 P.2d 556.

The allegations in Count I of plaintiffs' second amended complaint meet all of those requirement and, accordingly, state ultimate facts sufficient to constitute a claim for negligence in the...

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