Zehr v. Haugen

Decision Date27 October 1993
Citation121 Or.App. 489,855 P.2d 1127
PartiesBrian ZEHR and Jonni Zehr, husband and wife, Appellants, v. Richard D. HAUGEN, M.D.; Women's Care Associates of Lane County, P.C.; Sacred Heart General Hospital, assumed business name registered by Sisters of St. Joseph of Peace, Health and Hospital Services, a Washington non-profit corporation, Respondents, and Eugene Obstetrical Clinic, Defendant. 16-91-01871; CA A71334.
CourtOregon Court of Appeals

D. Lawrence Wobbrock, Portland, argued the cause for appellants. With him on the briefs were Kathryn H. Clarke and Christie Coates Leto, Portland.

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

Josephine H. Mooney, Eugene, argued the cause for respondent Sacred Heart General Hosp. With her on the brief were Win Calkins and Calkins & Calkins, Eugene.

[121 Or.App. 490-A] Before RICHARDSON, C.J., and DEITS and DURHAM, JJ.

DEITS, Judge.

Plaintiffs Brian and Jonni Zehr are husband and wife. They brought this medical malpractice and breach of contract action against defendant physician and the professional corporation of which he is the principal (collectively "Haugen"), and against defendant Sacred Heart General Hospital (hospital). Plaintiffs allege that defendants were negligent, and that Haugen also committed breaches of contract and warranty, in failing to perform the surgical sterilization that Haugen had agreed to perform on wife. As a result, she became pregnant and gave birth to plaintiffs' third child. The child was born healthy and normal. The plaintiffs sought damages of various kinds. Our disposition makes it unnecessary to describe all of the damages in detail. We note two of the general categories: damages associated directly with the pregnancy and birth (e.g., hospital expenses); and damages expected to be incurred in connection with raising and educating the child.

Defendants moved to dismiss the negligence claim on the ground that the tort of "wrongful conception" or "wrongful pregnancy" is not and should not be recognized in Oregon. They moved against the contract and warranty claims on the ground that the allegations sounded in tort rather than contract. As an alternative, defendants moved to dismiss the claim for child rearing and education damages, along with other damages that were not immediately incidental to the pregnancy and birth expenses, contending that those "extraordinary" damages should not be recoverable, even if the underlying liability claims may be asserted.

Plaintiffs requested oral argument pursuant to UTCR 5.050(1). The trial court refused the request. It then granted the motions to dismiss, as well as the alternative motions to strike the "extraordinary" damages. Plaintiffs appeal. They assign error to each of the trial court's rulings on the motions and to its refusal to allow oral argument.

We turn to the last assignment first. The refusal to allow oral argument, as required by UTCR, was error and requires a reversal. State ex rel. Frohnmayer v. Bicar, Inc., 119 Or.App. 458, 850 P.2d 1163 (1993). Because at least some of the other issues are likely to arise on remand, we will address them.

Defendants argue that no right of action should arise for a wrongful or unwanted pregnancy and birth. Their contentions are policy-based, and are to the general effect that the conception and birth of a healthy baby is not an injury as a matter of law. Like plaintiffs, defendants place much reliance on decisions from other jurisdictions. However, plaintiffs also respond that the question relevant to the dismissal of their negligence claims is not one of policy. Rather, they maintain that they have alleged an ordinary claim for medical malpractice. Although the specific damages that they claim to have incurred might differ from the damages recoverable in more traditional malpractice cases, plaintiffs assert that that does not change the fact that they have stated a...

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3 cases
  • Tomlinson v. Metro. Pediatrics, LLC
    • United States
    • Oregon Court of Appeals
    • December 30, 2015
    ..."loaded" labels as unhelpful to our analysis, which turns on established negligence principles in Oregon. See Zehr v. Haugen, 121 Or.App. 489, 855 P.2d 1127 (1993), rev'd in part on other grounds, 318 Or. 647, 871 P.2d 1006 (1994) (adopting a similar approach in a case described as one for ......
  • Zehr v. Haugen
    • United States
    • Oregon Supreme Court
    • April 21, 1994
    ...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 conclud......
  • Zehr v. Haugen
    • United States
    • Oregon Supreme Court
    • November 16, 1993
    ...1296 865 P.2d 1296 318 Or. 60 Zehr v. Haugen NOS. A71334, S40590 Supreme Court of Oregon Nov 16, 1993 121 Or.App. 489, 855 P.2d 1127 (Haugen's ALLOWED. ...

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