Simmons v. Hertzman , 99 Ohio App. 3d 453 ( 1994 )

As the majority acknowledges, Ohio recognizes a cause of action for wrongful pregnancy. In Johnson v. Univ. Hospitals ofCleveland (1989), 44 Ohio St.3d 49, 540 N.E.2d 1370, the Supreme Court made it clear that wrongful pregnancy is a suit filed by a parent "for proximate damages arising from the birth of a child subsequent to a doctor's failure to properly perform a sterilization procedure." Id. at 51, 540 N.E.2d at 1372. In the context of this case, the appellant, Palmo Simmons, has brought a wrongful pregnancy action on his own behalf against defendant-appellee, Bernard Hertzman, M.D.² I agree with the majority that this is not a derivative action, but rather the father's own independent and direct claim for damages.³ The question is, are there any damages recognized under Ohio law for this tort?

In Bowman v. Davis (1976), 48 Ohio St.2d 41, 2 O.O.3d 133,356 N.E.2d 496, the Supreme Court of Ohio made some very significant points. The court, in a per curiam decision, held that a cause of action allowing damages following a negligently performed sterilization procedure is not against public policy. The Bowman court wrote:

"* * * The choice not to procreate, as part of one's right to privacy, has become (subject to certain limitations) a Constitutional guarantee. See Griswold v. Connecticut (1965),381 U.S. 479 [85 S.Ct. 1678, 14 L.Ed.2d 510]; Roe v. Wade (1973), 410 U.S. 113 [93 S.Ct. 705, 35 L.Ed.2d 147]; and Doe v.Bolton (1973), 410 U.S. 179 [93 S.Ct. 739, 35 L.Ed.2d 201]. For this court to endorse a policy that makes physicians liable for the foreseeable consequences of all negligently performed operations except those involving sterilization would constitute an impermissible infringement of a fundamental right." (Emphasissic.) Bowman v. Davis, supra, at 46, 2 O.O.3d at 135-136,356 N.E.2d at 499.

The issue of the elements of recoverable damages, however, was not addressed in Bowman at the appellate levels.

In Johnson, supra, the Supreme Court addressed part of the issue left open in Bowman: namely, what damages, if any, a parent may recover following an unsuccessful sterilization for the birth of a normal, healthy child. Determining on public policy grounds that the birth of a normal, healthy child cannot be an injury to its parents, the court adopted the "limited-damages" rule, limiting damages in this context to those associated with the pregnancy itself, and not for any child-rearing expenses.⁴ The court also limited the mitigation-of-damages rule in this context as a matter of law, holding that where an unplanned or unwanted pregnancy results from a negligently performed sterilization, no parent can be compelled to have an abortion or to place the child for adoption.Id., 44 Ohio St.3d at 57, 540 N.E.2d at 1377.

This case asks us to decide an issue expressly not decided by the Supreme Court in either Bowman or Johnson, and that is, in a wrongful pregnancy action, what damages, if any, a parent may recover for the birth of a child that is not normal or healthy following an unsuccessful sterilization. My colleagues in the majority believe that even under these circumstances the limited-damages rule should be applied.⁵ I cannot agree.

Much has been written about damages when children have been born following unsuccessful sterilizations.⁶ In the case at bar, the matter has been simplified in part because Mr. Simmons, on his own behalf, is seeking no damages for any emotional distress he may have suffered as a result of the birth of an unhealthy child. Thus, we need not deal with what was so troubling to the court in Johnson, namely the difficulty and unseemliness of trying to weigh economic and emotional benefits and burdens against one another when a child is born. The issue of damages for emotional distress in this context must await another day.

Mr. Simmons also does not ask for ordinary child-rearing expenses in this case, even though this case is factually dissimilar to Johnson in that his child was not born healthy. Mr. Simmons seeks only extraordinary economic expenses related to the child's birth defects, which could include special medical, maintenance, and educational expenses.

I consider this case a medical malpractice case, and would analyze the economic damages requested on traditional tort principles. I believe this is consistent with what actually happened in Bowman, supra.⁷ I see no particular reason to view this case differently from other medical malpractice cases involving babies born with impairments. See, generally, S. Schwartz N. Tucker, Handling Birth Trauma Cases (1985) 85-103, Chapter 6. As in any such case, Mr. Simmons must prove duty, breach of duty, proximate cause, and damages.

Some additional discussion of proximate cause is necessary in this case. I disagree with the majority view on proximate cause in this case. I do not read Johnson as questioning proximate cause in a wrongful pregnancy case, but as analyzing, on public policy grounds, what damages will be compensable for this tort. I do not believe Johnson compels the conclusion that Mr. Simmons must prove that April's defects were specifically caused by the sterilization.

Under traditional tort principles a doctor is responsible for the foreseeable consequences of his negligent acts. See Restatement of the Law 2d, Torts (1979), Section 917, Commente. Even though a particular injury may not be anticipated, the tortfeasor is responsible so long as an unbroken sequence of events occurs following the negligent act. See Mussivand v.David (1989), 45 Ohio St.3d 314, 321, 544 N.E.2d 265, 272;Mudrich v. Std. Oil Co. (1950), 153 Ohio St. 31, 39, 41 O.O. 117, 121, 90 N.E.2d 859, 863; Lewis v. Woodland (1955), 101 Ohio App. 442,446, 1 O.O.2d 359, 361, 140 N.E.2d 322, 326.

The causes of birth abnormalities are many and varied. As advances are made in the fields of perinatology and neonatology, more and more is known about these causes. See, e.g., M. Becker, Establishing Proximate Cause in the `Brain Damaged Baby' Case, Ohio Trial (Summer 1993) 9, and the references in the endnotes thereto.

For the purposes of the tort of wrongful pregnancy, I believe the doctor who does the negligent sterilization is responsible for all legally recoverable damages related to the baby's abnormalities except those which may have been caused by some other superseding act of negligence. For example, if a vasectomy were negligently performed, but the birth defects were caused by the failure of the obstetrician to perform a medically indicated cesarean section or by a traumatic forceps delivery, then the obstetrician, rather than the urologist, would be responsible for the damages. There also may be examples of concurrent liability, such as a negligent sterilization by one doctor and the failure of another doctor to pick up an obvious birth defect on a test. Absent these intervening or superseding acts, however, I believe the doctor who negligently performs the sterilization is legally responsible for the resulting allowable damages. See, e.g., Reynolds v. Physicians Ins. Co. of Ohio (1993), 68 Ohio St.3d 14, 623 N.E.2d 30; Berdyck v. Shinde (1993), 66 Ohio St.3d 573, 613 N.E.2d 1014, paragraph six of the syllabus.

I believe that a liberal view of causation and damages is especially required in these cases because a doctor's negligence violates what the Supreme Court in Bowman declared to be a fundamental right, namely, the right to limit the size of one's family.

The exact nature of April Simmons's impairments is not clear from the limited record before us, because Mr. Simmons's claim was dismissed on a Civ.R. 12(B)(6) motion. While Mr. Simmons still must prove what he alleges, I would allow him to recover for such economic damages as extraordinary medical expenses, special educational and equipment expenses, psychological counseling, vocational training, and other such economic expenses both past and those reasonably certain to occur in the future.

² The majority decision refers to appellants and appellees. I believe that Mr. Simmons is the only remaining plaintiff in this case and Dr. Hertzman the only remaining defendant. This is the second appeal of this case. In the first appeal, this court dismissed the derivative claim Harriet Simmons brought on behalf of her daughter April. Mrs. Simmons has alleged no claims for relief on her own behalf in this lawsuit. Further, as to Mr. Simmons own direct claims which are the subject of this appeal, all defendants other than Dr. Hertzman have been dismissed on statute-of-limitations grounds.

³ Dr. Hertzman argues that Mr. Simmons's claim for reimbursement for medical expenses is derivative. This argument is meritless. A parent has a direct, statutory obligation to support a child, which includes necessary medical expenses. R.C.3103.03; Children's Hosp. of Akron v. Johnson (1980), 68 Ohio App.2d 17, 22 O.O.3d 11, 426 N.E.2d 515.

⁴ This rule now appears to be the rule in the majority of the states which have considered the problem. For an excellent list of a state-by-state survey, see Lovelace Med. Ctr. v.Mendez (1991), 111 N.M. 336, 349, 351, 805 P.2d 603, 616, 618, Appendix, fn. 1-3.

⁵ As Mr. Simmons did not seek any damages for himself relating to the cost of the vasectomy procedure or for his wife's pregnancy, which are the kinds of limited damages allowed by the court in Johnson, the majority has upheld the outright dismissal of his claim.

⁶ Of particular interest are Fassoulas v. Ramey (Fla. 1984),450 So.2d 822; Speck v. Finegold (1981), 497 Pa. 77,439 A.2d 110; Sherlock v. Stillwater Clinic (Minn. 1977), 260 N.W.2d 169. But, see, Minn.Stat. 145.424 (1984); Note, Traditional Tort Principles and Wrongful Conception Child-Rearing Damages (1993), 73 B.U.L.Rev. 407; Annotation, Recoverability of Compensatory Damages for Mental Anguish or Emotional Distress for Tortiously Causing Another's Birth (1989), 74 A.L.R.4th 798; Annotation, Medical Malpractice and Measure and Element of Damages in Connection with Sterilization or Birth Control Procedures (1969), 27 A.L.R.3d 906.

⁷ I note that the Bowman court, which did not name the tort with which it was dealing, held the suit to be "a traditional negligence action." Bowman, supra, 48 Ohio St.2d at 45, 2 O.O.3d at 135, 356 N.E.2d at 499. In Bowman, twins were born following a negligently performed sterilization procedure. One of the twins was normal and healthy, but the other suffered from serious congenital abnormalities and mental retardation. Damages were sought in four categories, one of which included costs of "institutionalization, care, nursing, and special attention" for the abnormal twin. A substantial general verdict was awarded in the case, but damages were not broken down by categories. Although the issue of the elements of the damage award was not specifically addressed by the Supreme Court, the entire verdict was affirmed, and the court of appeals did hold that the total amount of the award was not excessive. Bowman v. Davis (July 9, 1975), Montgomery App. No. 4730, unreported, at 14.