Grubbs Ex Rel. Grubbs v. Barbourville Family Health Center, P.S.C. , 120 S.W.3d 682 ( 2003 )

Opinion of the Court by

Chief Justice LAMBERT.

This Court granted discretionary review to consider two issues of first impression in this Commonwealth. The first is whether the parents of a child born with incurable and profound birth defects have a cause of action against a physician for failing to correctly diagnose and/or inform them of the fetal medical condition in time for an abortion. The second issue is whether the child has a claim for the same medical errors or omissions.¹ To decide these issues, we must focus on three areas of inquiry: (1) whether these are new causes of action requiring legislative authorization, or whether they are conventional negligence cases; (2) if we determine that they are traditional negligence actions, whether, as a matter of law, the elements of negligence can be proven; and (3) whether there are public policy considerations that affect the analysis. Both cases were decided upon summary judgment, and thus we are called upon to review the case to determine if it should proceed to trial.²

THE GRUBBS CASE

In both cases, the plaintiffs allege that early diagnostic procedures revealed the birth defects, but that the physicians failed to accurately interpret and/or report the results. In late 1995, Kimberly Grubbs sought prenatal care from Dr. B.R. Jung at the Barbourville Family Health Center. On April 19, 1996, when Ms. Grubbs was approximately 24 weeks pregnant, Dr. Jung performed a prenatal screening ultrasound. Ms. Grubbs and her husband were informed that the results showed that the pregnancy was progressing normally. Approximately two months later, a second ultrasound was performed. Thereafter, Dr. Jung first informed the parents that the fetus might have birth defects. Dr. Jung referred Ms. Grubbs to the University of Kentucky Medical Center for further evaluation. On June 24, 1996, in the eighth month of pregnancy, a level II ultrasound was performed by Maternal/Fetal Medicine Specialist Dr. Douglas Milligan, and he determined that the fetus had spina bifida and hydrocephalus. On July 22, 1996, Carlei Nacole Grubbs was born with the diagnosed birth defects. She is also paralyzed from the waist down, has poor vision and misshapen kidneys.

The Grubbs’s brought a negligence action against Dr. Jung and the Barbourville Family Health Center. The Grubbs’s alleged that the defendants negligently failed to interpret the April 19, 1996 ultrasound correctly, that they failed to inform the Grubbs’s that the ultrasound revealed the presence of profound birth defects, and that they failed to inform the Grubbs’s of other prenatal diagnostic tests for spina bifida and hydrocephalus. The Grubbs’s alleged that if they had been informed of the correct diagnosis at the time of the April ultrasound, they would have terminated the pregnancy; and therefore, the defendants’ failure to timely notify them of the defects prevented them from making an informed decision to continue or terminate the pregnancy.

The defendants moved for summary judgment, claiming that Kentucky does not recognize causes of action for wrongful birth and wrongful life. The trial court ruled that it would follow the perceived majority rule and allow the wrongful birth action to proceed. The claim was not a new cause of action, the trial court stated, but a traditional medical negligence claim requiring the elements of duty, breach, causation and injury to be proven for the plaintiffs to prevail.

However, the trial court refused to recognize the wrongful life claim, stating that as a matter of law there was no injury, and thus the elements of negligence could not be proven. The trial court’s reasoning was that the alleged injury was the child’s life itself, and that it was against public policy to weigh a human life, albeit imperfect, against no life at all.

The defendants subsequently filed a second motion for summary judgment based upon the statute of limitations. The trial court granted this motion, stating that the proper time to file suit was within one year from discovery of the condition rather than one year from the child’s birth. A final judgment of dismissal was entered.

THE BOGAN CASE

The facts of the Bogan case are similar. In late 1992, Gretchen Bogan learned that she was pregnant and sought prenatal care from the obstetricians of Altman, McGuire & Pigg, P.S.C., in Pike County. In December 1992, when the fetal gestational age was estimated to be twenty-two weeks, a pre-natal screening ultrasound was performed by an ultrasound technician. According to Dr. Altman’s deposition, the ultrasound was administered to “confirm the dates and rule out obvious anomalies.” Dr. Altman interpreted the ultrasound as normal and so advised Ms. Bogan. On March 31,1993, Nathan Robert Bogan was born several weeks prematurely by caesarean section. The caesarian was necessary because a cyst had enlarged Nathan’s head. As the cyst occupied most of his cranium, he has no eyes and no brain, although he has an underdeveloped brain stem that supports minimal autonomic functioning. He has a cleft palate and cannot speak. He must be strapped into a wheelchair to sit, and he has no control of his bowels. The Bogans point out in their brief that Nathan “cannot do anything but exist.”

In their complaint, the Bogans maintained that the defect was visible in the ultrasound films. They sued the defendants, alleging numerous theories of recovery including medical malpractice, wrongful birth, and wrongful life. The gravamen of the complaint was that the failure to interpret the ultrasound correctly and to perform an amniocentesis test prevented the Bogans from making an informed decision about continuation or termination of the pregnancy. The Kentucky Cabinet for Health Services, Department for Medicaid Services, intervened to recover sums it had paid on behalf of Nathan Bogan. The obstetricians sought summary judgment, and the trial court held that the Bogans could not recover for wrongful life or wrongful birth. However, the trial court allowed the Bogans’ claim for damages for pain and suffering and permanent scarring suffered in connection with the caesarean delivery to proceed. That claim remains pending in the Pike Circuit Court. Otherwise, the summary judgment was made final and this appeal proceeded.

In summary, both trial courts denied the child’s claim. As to the parents’ claims, the trial court in the Bogan case held that limited damages could be awarded to the mother due to the caesarian. The trial court in the Grubbs case authorized the parents’ claim to the full extent of damages (although the case was ultimately dismissed upon statute of limitation grounds).

THE COURT OF APPEALS

The Court of Appeals consolidated the two cases to consider whether Kentucky law recognizes so-called ‘birth-related torts,’ i.e., wrongful conception or pregnancy, wrongful birth, and wrongful life. As a starting point, the Court of Appeals considered this Court’s decision in Schork v. Huber,³ a medical malpractice case involving a couple who had a healthy child despite having undergone a surgical sterilization procedure. In Schork, this Court refused to recognize the wrongful conception claim, stating that “parents cannot recover damages based upon the costs of raising a healthy but unexpected child from a doctor following an unsuccessful sterilization procedure.”⁴ Critical to the Court’s holding was that damages were highly speculative, as any recovery would be offset by the benefit to the parents of having a normal, healthy child. The Court concluded that causes of action for not only wrongful conception but all birth-related torts were matters within the exclusive purview of the legislature.⁵

The Court of Appeals declined to follow the Schork majority, considering the conclusion about wrongful birth and wrongful life non-binding dictum. Instead, the Court of Appeals held that these claims should be examined under traditional negligence principles as advocated in the two Schork dissenting opinions. The Court of Appeals then considered whether the elements of negligence — duty, breach, causation, and injury — were present in the claims.

As to the parents’ claims, the Court of Appeals stated that the elements could be satisfied and held that plaintiffs who allege that a physician is negligent by depriving them of information necessary to make informed decisions about a pregnancy have a viable cause of action for medical negligence. As to the claims made by the children with disabilities, the Court of Appeals concluded that the first element of negligence could not be established, as there is no separate, independent duty owed by a physician to an unborn child apart from the duty owed to the mother. Thus, the children’s claims were held not actionable as a matter of law. Accordingly, the Court of Appeals remanded the Bogan case for further proceedings, yet affirmed the dismissal of the Grubbs case upon statute of limitations grounds.⁶

ANALYSIS

We agree with the Court of Appeals that the specific issues presented here were not before the Court in Schork, and thus that its conclusions denying wrongful birth and wrongful life claims are not controlling. Rather, we must decide whether the claims now before this Court upon the facts presented can be decided upon existing tort principles or whether deference to legislative initiative would be more appropriate. From the pleadings, the claims sound in traditional medical negligence. Thus, the claims should be analyzed under traditional negligence principles.

We shall first consider the parents’ claims against the defendants according to the primary elements of negligence: duty, breach, and consequent injury.⁷ As to the first element, in Kentucky a physician has the duty to use the degree of care and skill expected of a competent practitioner of the same class and under similar circumstances.⁸ Moreover, there is a duty of fidelity imposed upon the physician that arises from the special relationship between a physician and patient, which has been described as follows:

The relationship of a patient to his physician is by its nature one of the most intimate. Its foundation is the theory that the physician is learned, skilled, and experienced in the afflictions of the body about which the patient ordinarily knows little or nothing but which are of the most vital importance to him. Therefore, the patient must necessarily place great reliance, faith and confidence in the professional word, advice and acts of his doctor. It is the physicians’ duty to act with the utmost good faith and to speak fairly and truthfully at the peril of being held liable for damages for fraud and deceit.⁹

This duty mandates that a physician “fully disclose his findings on examination and the opinions he holds.”¹⁰ Accordingly, a physician is obligated to inform a patient of the diagnosis and the known risks or dangers inherent therein so that the patient can make an intelligent decision regarding the course of treatment.¹¹ If the patient’s ailment is beyond the physician’s knowledge, ability or capacity to treat with reasonable success, the physician has a duty to disclose the situation to the patient and to advise the patient to consult a specialist.¹² If a physician discovers that an ailment is incurable and fails so to advise the patient, the practitioner is guilty of negligence.¹³

In applying the law to the instant cases, viewing all allegations in the light most favorable to the plaintiffs as required for review of summary judgment dispositions, the elements of duty and breach feasibly could be satisfied by adequate proof. Pregnancy is a medical condition for which treatment by physicians had been sought to ensure the health of the mother and fetus, implicating the physician’s duty of care that mandates full disclosure. A misdiagnosis or withholding of medical information regarding the pregnancy, therefore, could be considered a breach of the duty of care. To establish this deviation from the standard of care, the plaintiffs would need to prove that a reasonably competent obstetrician would have observed the defects from the ultrasounds and would have reported the results to the patients. This scenario is analogous to a physician’s failure to diagnose and inform a patient of a cancer or broken bone, etc.

Establishing the other element of negligence, consequent injury, appears more complex. In Kentucky, if the physician’s service falls below the expected level of care and skill and this negligence proximately caused injury or death, then all elements of a malpractice action have been met.¹⁴ The parents here contend that by being negligently deprived of pertinent medical information, they were prevented from making an informed decision regarding continuation of the pregnancy. The Bogans specifically maintain that had they known at the time of the ultrasound that their child would be born without a brain, they would have sought an abortion while doing so was still a legally and medically available option. The Grubbses maintain that they would have done likewise had they been informed of the hydrocephalus and spina bifida. Thus, the plaintiffs contend, injury was in their taking an unwanted pregnancy to term, which was caused by the allegedly negligent misdiagnoses provided by the defendants. These arguments are consistent with various views appearing to be a majority which recognizes causes of action for wrongful birth.¹⁵

We have been directed to Azzolino v. Dingfelder,¹⁶ a case from the Supreme Court of North Carolina in which the court refused to allow a parent’s claim for wrongful birth under a traditional tort analysis. In its consideration of the elements of negligence, the court first assumed arguendo that the physician defendants owed the plaintiffs a duty and that the duty had been breached. Although the court considered the causation element more problematic because the defendants did not cause the child’s genetic defect, the court nevertheless assumed that the birth of the child was the proximate result of the physician’s negligence.¹⁷ The court then stated that a ‘traditional’ negligence analysis could not proceed beyond this point because it would have to reach the ‘untrad-itional’ conclusion “that the existence of a human life can constitute an injury cognizable at law.”¹⁸ With regard to the child’s claim, the court was also unwilling to equate the occurrence of a human life with injury under a traditional tort analysis and consequently refused to recognize that cause of action.

The Supreme Court of Georgia likewise refused to recognize wrongful birth actions under a traditional tort analysis in Atlanta Obstetrics and Gynecology Group v. Abelson.¹⁹ As in Azzolino, the court believed the duty and breach elements could be satisfied, stating that a physician has a generalized duty to impart relevant information to a patient concerning his or her medical condition,²⁰ and that a woman has a constitutional right to make an informed decision regarding her procreative options.²¹ The Georgia court held, however, that the traditional tort analysis broke down on the elements of injury and causation. As to the injury, the Georgia court agreed with the Azzolino majority in its unwillingness to say that an impaired human life amounted to a legal injury. The Georgia court concluded that the matter was more suited to the legislature.²²

We agree with this analysis of the injury element. Although the parents in the instant cases allege that their injury was in being deprived of accurate medical information that would have led them to seek an abortion, we are unwilling to equate the loss of an abortion opportunity resulting in a genetically or congenitally impaired human life, even severely impaired, with a cognizable legal injury. This issue was addressed by Judge Wacht-ler of the Court of Appeals of New York in his dissenting opinion from the majority view that claims for wrongful birth should be recognized. He explained that to hold the prenatal care physician liable for the product of such a defect is a distortion of fundamental legal principles.

The heart of the problem in these cases is that the physician cannot be said to have caused the defect. The disorder is genetic and not the result of any injury negligently inflicted by the doctor. In addition it is incurable and was incurable from the moment of conception. Thus the doctor’s alleged negligent failure to detect it during prenatal examination cannot be considered a cause of the condition by analogy to those cases in which the doctor has failed to make a timely diagnosis of a curable disease. The child’s handicap is an inexorable result of conception and birth.

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It is a tort without precedent, and at variance with existing precedents both old and new. Indeed the members of the majority are divided among themselves as to what principle of law requires the doctor to pay damages in this case. The limits of this new liability cannot be predicated. But if it is to be limited at all it would appear that it can only be confined by drawing arbitrary and artificial boundaries which a majority of the court consider popular or desirable. This alone should be sufficient to indicate that these cases pose a problem which can only be properly resolved by a legislative body, and not by courts of law.²³

The foregoing analysis is equally applicable to the wrongful life claims and they, too, must fail for lack of a cognizable injury.

Returning to Azzolino, the court pointed out the uncertainty and lack of uniformity in jurisdictions recognizing wrongful birth regarding the proper measure of damages and the duty to mitigate damages arises from a failure to recognize that the “injury” they seek to compensate is not an injury under a strictly traditional application of tort theory. Although under traditional tort law defendants are liable for all the reasonably foreseeable results of their negligence, successful plaintiffs in wrongful birth actions have received various types of damages ranging from the expenses resulting from the impairment but not the normal costs of raising the child, to the entire cost of raising the child with no reduction for the cost of raising a healthy child, to only the parents’ own suffering and mental anguish resulting from the child’s birth but not the expense of raising the child. There has also been no consensus as to whether the damages should be reduced or offset by any emotional or other benefit to the parents through the child’s life, or whether there is a duty on the parents to mitigate damages by placing the child for adoption.²⁴ The divergence of views on damages reveals the flaws in the conclusion that a life may be considered a legally cognizable injury.

If we held otherwise, there would be questions regarding which incurable birth defects, left negligently undiagnosed from prenatal diagnostic procedures, should warrant recovery:

When will parents be allowed to decide that their child is so “defective” that given a chance they would have aborted it while still a fetus and, as a result, then be allowed to hold their physician civilly liable? [Is it] [w]hen the fetus is only the carrier of a deleterious gene and not itself impaired ... [or] [w]hen the fetus is of one sex rather than the other?²⁵

In Taylor v. Kurapati,²⁶ the court held that the use of the benefits rule in determining offset of damages in wrongful birth cases could slide quickly into applied eugenics.²⁷ After a brief history of the American eugenics movement of the early twentieth century, which espoused reproduction of the “fit” and discouraged the birth of the “unfit,” the court noted:

To our ears, at the close of the twentieth century, this talk of the “unfit” and of “defectives” has a decidedly jarring ring; we are, after all, above such lethal nonsense. But are we? We know now that we all have at least five recessive genes but ... when scientists map the human genome, they will unveil many more potentially harmful genes in each of us ... [p]sychoses, hypertension, diabetes, early- and late-appearing cancers, degenerative disorders, susceptibility genes for communicable diseases, genes for various mental deficiencies, aging genes, and other variations and disorders will be ascertained. Will we then see the tort of wrongful birth extended to physicians who neglect or misinterpret genetic evidence and thereby fail to extend the option of a eugenic abortion to the unsuspecting parents of a genetically “unfit” or “defective” child?²⁸

These questions reinforce our view that courts should exercise great restraint in recognizing such new and complex causes of action.

The Bogans present an interesting issue unrelated to the tort aspects of the claims, yet which merits attention. The Bogans believe that patients should have a breach of contract action against the physicians who offered and charged for diagnostic prenatal testing, yet who allegedly did not perform those services correctly. Despite our holding denying the tort claim as a matter of law, a physician who contracts and charges for a service, such as a prenatal ultrasound and consequent opinion as to the results of the ultrasound, is liable for any breach of contract in this regard. We do not believe physicians should be relieved of any proven contractual responsibility to report to patients the accurate results of diagnostic procedures, even if the condition is “incurable.” In the absence of such a conclusion, we would be forced to hold that physicians could perform and charge for diagnostic procedures and report whatever they want if the diagnosis is of an incurable condition, and physicians could legally charge and be paid for services they did not perform.

In the Grubbs case, the final judgment of the Knox Circuit court dismissing all claims is reinstated. In the Bogan case, the final judgment dismissing the wrongful birth and wrongful life claims is reinstated, but the case is remanded to the Pike Circuit Court for adjudication of the claims for pain and suffering and permanent scarring suffered in connection with the caesarean section delivery.

COOPER, GRAVES, and JOHNSTONE, JJ., concur. WINTERSHEIMER, J., concurs by separate opinion. KELLER, J., files a separate opinion concurring in part and dissenting in part in which STUMBO, J., joins.

1 . Although these causes of action are often referred to as “wrongful birth” and "wrongful life,” respectively, these terms can be misleading. See Schork v. Huber, Ky., 648 S.W.2d 861, 863 (1983)(Leibson, J. dissenting)("The issue is not as dramatic as depicted ... We are simply called upon to decide whether a child born as a result of a doctor’s negligence is a compensable element of damages”).

2 . Steelvest v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991).

3 .Ky., 648 S.W.2d 861 (1983).

4 .Id. at 862.

5 .Id. at 863.

6 . As this case is being resolved on the merits, it will not be necessary to further review the Court of Appeals statute of limitations analysis.

7 . Mullins v. Commonwealth Life Ins. Co., Ky., 839 S.W.2d 245 (1992); M & T Chemicals, Inc. v. Westrick, Ky., 525 S.W.2d 740 (1974); Howard v. Fowler, 306 Ky. 567, 207 S.W.2d 559 (1947); City of Louisville v. Bailey’s Guardian, 262 Ky. 486, 90 S.W.2d 712 (1936).

8 . Mitchell v. Hadl, Ky., 816 S.W.2d 183, 185 (1991)(citing Blair v. Eblen, Ky., 461 S.W.2d 370, 373 (1970)).

9 . Mitchell v. Hadl at 185 (quoting Adams v. Ison, Ky., 249 S.W.2d 791, 793 (1952)); see also, 61 Am.Jur.2d, Physicians, Surgeons, and Other Healers § 142, at 256-57 (2002).

10 . Mitchell at 185.

11 . 61 Am.Jur.2d, Physicians, Surgeons, and Other Healers §§ 211-212, 318-19 (2002).

12 . Id. at §§ 213-214.

13 . Id.

14 . Reams v. Stutler, Ky., 642 S.W.2d 586 (1982); Wheeler v. Baptist Healthcare System, Inc., 14 Fed.Appx. 559 (6th Cir.2001).

15 . See, e.g., Lininger v. Eisenbaum, 764 P.2d 1202 (Colo.1988)(viable malpractice claim by parents whose second child was bom blind, that physicians were negligent in failing to diagnose first child’s blindness as hereditary and that parents would not have had second child but for such negligence); Phillips v. United States, 508 F.Supp. 544 (D.S.C.1981) (actionable wrongful birth claim under South Carolina law by parents of child with Down’s syndrome); Schroeder v. Perkel, 87 N.J. 53, 432 A.2d 834 (1981)(actionable claim by parents whose second child was born with cystic fibrosis against physicians for failing to diagnose first child's cystic fibrosis earlier thereby denying parents informed decision about second pregnancy).

16 . 315 N.C. 103, 337 S.E.2d 528 (1985).

17 . Id. at 533.

18 . Id. at 534.

19 . 260 Ga. 711, 398 S.E.2d 557 (Ga.1990).

20 . Id. at 560 (citing, inter alia, 61 Am.Jur.2d 358, Physicians, Surgeons, and Other Healers § 229 (1981)).

21 . Id. at 561 (citing Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Smith v. Cote, 128 N.H. 231, 513 A.2d 341, 346 (1986)).

22 . Id. at 563.

23 . Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807, 816, 819 (1978).

24 . Azzolino at 534 — 535.

25 . Id. at 535.

26 . 236 Mich.App. 315, 600 N.W.2d 670 (1999).

27 . Id. at 688.

28 . Id. at 690.