Atlanta Obstetrics & Gynecology Group v. Abelson , 195 Ga. App. 274 ( 1990 )

Beasley, Judge,

concurring in part and dissenting in part.

Upon reconsideration pursuant to Rule 48, it is necessary to dissent in part.

1. I concur in Division 1 primarily because of the applicability of Fulton-DeKalb Hosp. Auth. v. Graves, 252 Ga. 441 (314 SE2d 653) (1984), and the legislated broadness of OCGA §§ 51-1-27; 9-3-70; and 51-1-6. The rationale of the Supreme Court governs the circumstances here as well. I note that this would be a compensable tort only to parents who would abort.

2. Despite this court’s acceptance of the calculability of damages for the tort in question, the first problem with damages is to identify the nature of recoverable damages in this tort. Defining what the tortfeasor will be liable for, in terms of species of damages, presents difficulty.

Considering the state of the law in Georgia with Fulton-DeKalb Hosp. Auth., supra, in mind, I find no authority in law or logic to allow the award of extraordinary child-rearing expenses. I must dissent from Division 2, and inasmuch as the ruling in Division 4 would then be upon a moot point, I find it necessary to dissent from Division 4 also.

It is true that the Supreme Court expressly noted in Graves’ case that it did not involve “foreseeability of the possible birth of a child with a birth defect or other congenital ailment.” Id. at 442. Such a statement does not imply that extraordinary costs or any other particular species of damages would be legally cognizable. In our determination of whether the so-called “extraordinary costs” are recoverable, we must examine the Supreme Court’s rationale regarding usual child-rearing costs. Its consideration of that aspect of the case as a proposed species of damage when the birth of the child was unwanted mandates the exclusion of “extraordinary” child-rearing costs in this case as well.

To allow such monetary costs, assuming they could be calculated within a legal quantum, they would have to be “ ‘on the ground that human life and the state of parenthood are compensable losses.’ ” With respect to ordinary child-rearing expenses, the Supreme Court adopted this position and the following further reasoning from Cockrum v. Baumgartner, 95 Ill2d 193, 200 (447 NE2d 385, 389), cert. den. sub nom. Raja v. Michael Reese Hosp. & Med. Center, 464 U. S. 846 (104 SC 149, 78 LE2d 139) (1983): “ ‘In a proper hierarchy of values the benefit of life should not be outweighed by the expense of supporting it. Respect for life and the rights proceeding from it are at the heart of our legal system and, broader still, our civilization.’ ” Fulton-DeKalb Hosp., supra at 444. This must relate to all expenses, because the law does not value life based on how much it costs to support it.

The determination that the law should not reach into a realm which requires the measurement of human life value forecloses a facing of the same dilemma when addressing the costs of raising a congenitally imperfect human being. It requires saying that this child, unwanted during the period before birth if defective but now in life and not a fetus, is worth less than a child unwanted altogether during that same correlative period of gestation. Otherwise, what is the distinction between awarding ordinary costs and extraordinary costs? What is the basis or ground or reason for the latter when there is no basis or ground or reason acceptable in Georgia law for the former? Certainly there is an emotional one. Perhaps there is a moral one. There is no doubt that there are humane ones.

In deciding that extraordinary child-raising expenses are recoverable, a ground for the distinction is not articulated. Is it that the value of a Down’s Syndrome child’s life is lesser? It may be lesser to these parents, who would have extinguished it before birth, but that would not be a proper measure under the rationale of the Supreme Court. Besides, we have recognized in the majority opinion that “[t]he birth of Plaintiffs’ daughter is clearly not, in and of itself, an injury to the [the parents].” And yet certain damages arising from the life which follows that non-injury of birth are being allowed.

These parents, and of course no parents, want their child to be congenitally handicapped. It is in human terms a tragic, burdensome and heartbreaking occurrence. But to say that those foreseeable costs which would be over and above the costs of raising a “normal” child should be recoverable even though the negligent defendants were not even remotely connected with the defect giving rise to the extraordinary expenses, defies logic.

That is true unless ordinary costs, too, are recoverable. The reason is that the tort here claimed resulted in a child (with child-rearing expenses) instead of a non-child (with zero child-rearing expenses). The alleged tort did not result in a defective child (with particular defect-related child-rearing expenses) instead of a normal child (with lesser child-rearing expenses).

We have held that the doctors may be held liable for the birth itself, if they proximately caused it. Yet the Supreme Court’s ruling means that they cannot be held liable for the ordinary child-rearing costs, because of the value of human life.

By the same token, they are liable for the birth of Brittany, but not for her Down’s Syndrome. Since the parents cannot recover for ordinary child-rearing expenses, there is no foundation upon which they could recover for extraordinary expenses related to her special condition. “But for” the defendants’ negligence, there would have been no Brittany, no child at all, not a normal child. Reliance on Lininger v. Eisenbaum, 764 P2d 1202, 1206 (Colo. 1988), is weak because unlike Georgia there was no case law in that state holding that ordinary costs are not recoverable. The Supreme Court of Colorado specifically stated: “In this case, the Liningers do not request damages for the costs ordinarily associated with raising a healthy child, and we need not decide whether those costs may be recovered.” Id. at 1207, fn. 8.

Plaintiffs are not seeking ordinary child-rearing expenses, but that may not be bootstrapped into holding that they would therefore be entitled to expenses beyond those. They could not obtain ordinary expenses even if they prayed for such, because of Graves’ case. Ms. Graves did not want any child-rearing expenses in that she did not want any child. The Supreme Court did not find this to be a reason for compensability. No more could the extraordinary expenses be bottomed on the fact that plaintiffs did not want, or were not prepared to accept, the extraordinary expenses of a handicapped child.

I do not agree that “unlike the mother in Graves, Plaintiffs do not allege that the birth of their child is, in and of itself, an economic injury to them.” They must, because they allege that but for the negligence there would have been no child-rearing expenses. Brittany’s affliction with Down’s Syndrome could not be divorced, by due medical care, from her very being and constitution.

The majority refers to its extraordinary expenses allowance as a “special rule of damage.” It is not even complete, as it permits, either arbitrarily or for policy reasons, only extraordinary medical and education costs; no other of what might be labeled extraordinary costs, such as child care beyond what a normal child would need, are included. More importantly, it being a “special rule,” we on this Court have no authority to fashion it, in light of the Graves case.

3. With respect to Division 3, I cannot agree that defendants in this lawsuit involving a now four-year-old child (less than two when suit was filed) can be held liable to the parents for “extraordinary child-rearing expenses” past the child’s eighteenth birthday, which is the age of majority. OCGA § 39-1-1 (a).

In this State, the duty of each parent is “to provide for the maintenance, protection, and education of his [or her] child until the child reaches the age of majority.” OCGA § 19-7-2. See Wilcox v. Wilcox, 242 Ga. 598, 599 (250 SE2d 465) (1978); Crawford v. Kalman, 166 Ga. App. 712, 713 (305 SE2d 442) (1983). As pointed out by the Supreme Court in Crane v. Crane, 225 Ga. 605, 607 (1) (170 SE2d 392) (1969): “There is no exception provided for and this Court cannot make any. The General Assembly might conceivably make an exception as to children who are born mentally ill and remain so beyond majority or who become ill later on in life and remain so after reaching majority.” This has not been done. Compare OCGA § 19-11-43 (2) (Uniform Reciprocal Enforcement of Support Act); Ray v. Ray, 247 Ga. 467, 468 (277 SE2d 495) (1981) (applying Act intrastate).

The only legal obligation beyond that point is imposed by OCGA § 36-12-3, which requires support of any adult “pauper contemplated by Code Section 36-12-2, if [the parent is] sufficiently able.” The latter provides that “[n]o person who is able to maintain himself by labor or who has sufficient means shall be entitled to the benefits of the provision for the poor.” Eighty-odd years ago the Supreme Court recognized that this meant “only those persons . . . who were completely destitute.” Clark v. Walton, 137 Ga. 277, 279 (73 SE 392) (1911); Crane, supra at 607 (2). A person who had a parent “able to support” him or her would not be a “pauper.” Id. at 280.

Both that case and Citizens and Southern Nat. Bank v. Cook, 182 Ga. 240 (185 SE 318) (1936), the case cited by the majority, involved adults and a present duty, if they were paupers, to support them. Neither these cases, nor the statute upon which they are dependent, contemplate a present duty to support a potential adult pauper, when the person is still a child. In order for the statutory duty to arise, the person must in fact be an adult pauper.

Damages may not be remote or speculative. OCGA § 51-12-8. See representative cases at Cobb & Eldridge, Georgia Law of Damages, p. 100, fn. 3. For a jury to determine whether the parents or either of them will have a duty to support Brittany after she is eighteen is just that. There are too many “if’s,” too many unknowns: If either parent is alive, if either parent is able, if Brittany is alive, if Brittany is able, if Brittany has any independent resources, if the then-state of the medical and social sciences cannot enable her, and how long each of the three will be in life and able. I perceive no current obligation or even a certain future obligation imposed by the law for adult-age support which would render such support an “injury” to the parents so that the medical defendants could currently be held liable therefore in damages. The law does not create such a duty, and for the court to fashion one under the circumstances of this case would result in the necessity for a jury to compute remote and speculative damages.

In this regard the trial court did not err.

Insofar as Division 4 of the majority opinion is meant to apply to the damages ruled on in Division 3 as well as those in Division 2, it follows that I dissent from the Division 4 ruling as well, as the question addressed would be moot.

4. I concur in Divisions 5 through 8.

I am authorized to state that Judge Sognier joins in this opinion.