Norwest v. Presbyterian Intercommunity Hospital , 1981 Ore. App. LEXIS 2858 ( 1981 )

GILLETTE, J.

Plaintiff, a minor child, seeks recovery for the loss of his mother’s society, companionship, support and education as a result of defendants’ negligent treatment which resulted in permanent brain damage to the mother. Defendants moved to dismiss, based upon the theory that there is no cause of action in Oregon for loss of "parental consortium.” Plaintiff appeals from the resulting order of the trial court dismissing his complaint for failure to state ultimate facts sufficient to constitute a claim. We affirm.

Plaintiffs complaint alleges that he is the son of Shirlene Norwest, who underwent surgery for removal of her gall bladder at defendant hospital under the surgical care of the defendant doctor. It alleges that defendants were negligent in failing to discover or treat a condition of hypocalcemia which developed in Shirlene Norwest and which resulted in severe brain damage requiring a lifetime of custodial care. Plaintiff further alleges that he has been deprived of his mother’s society, companionship, support and education and has incurred an obligation to support his mother after her own funds are exhausted. He alleges further that defendant hospital is estopped to deny its negligence because a judgment already entered in favor of Shirlene Norwest in an action brought on her behalf has determined the hospital’s negligence.

We are called upon to decide if a child may recover damages from a third party whose negligence results in serious injury to a parent and thereby seriously interferes with the parent-child relationship. The courts of this state have never had occasion to consider whether a child has a cause of action for this loss of parental society, or what has been termed "parental consortium.” However, the question here is not one of authority. There can be no doubt that this court has the authority to recognize previously unrecognized rights of recovery or new forms of injury. See, e.g., Oksenholt v. Lederle Laboratories, 51 Or App 419, 625 P2d 1357 (1981); Campbell v. Carpenter, 279 Or 237, 566 P2d 893 (1977) (tavern owner may be liable in negligence for actions caused to third party injured by intoxicated customer); Hinish v. Meier and Frank, 166 Or 482, 113 P2d 438 (1941), (action for invasion of privacy); Cowgill v. Boock, 189 Or 282, 218 P2d 445 (1950) (minor child may sue parent for wilful or malicious tort); Apitz v. Dames, 205 Or 242, 287 P2d 585 (1955) (wife has action against husband for intentional injuries). The question, rather, is one of judicial policy. For the reasons that follow, we conclude that an action for loss of parental consortium will not lie.

The history of the legal recognition of the importance of family relationships and the protection of those relationships has, in Oregon at least, primarily been a history of legislative, not judicial, change. Initially, at common law, there existed only the action per quod consortium in the husband; the wife, having little more legal status than a chattel, had no such right of action. Oregon generally abolished women’s legal disabilities (with the interesting exceptions of the right to vote and the right to hold office) by the Married Women’s Act of 1880, Or Laws 1880, § 1, which provided,

"All laws which impose or recognize civil disabilities upon a wife which are not imposed or recognized as existing as to the husband are hereby repealed: Provided, that this act shall not confer the right to vote or hold office upon the wife, except as is otherwise provided by law; and for any unjust usurpation of her property or natural rights she shall have the same right to appeal in her own name alone to the courts of law or equity for redress that the husband has.”

Even then, however, and in spite of the recognition of the right of a husband to maintain an action for loss of consortium as recognized in Elling v. Blake-McFall Co., 85 Or 91, 166 P 57 (1917), the Oregon courts consistently declined to expand the common law to recognize a similar right in the wife. Kosciolek v. Portland Ry L & P Co., 81 Or 517, 160 P 132 (1916); Sheard v. Oregon Electric Ry Co., 137 Or 341, 2 P2d 916 (1931). Finally, the rule was changed legislatively in 1941, when the Married Women’s Act was amended to read,

"All laws which impose or recognize civil disabilities upon a wife which are not imposed or recognized as existing as to the husband hereby are repealed, and all civil rights belonging to the husband not heretofore conferred upon the wife, or which she does not have at common law, hereby are conferred upon her, including, among other things, the right of action for loss of consortium of her husband; and for any unjust usurpation of her property or natural or civil rights she shall have the same right to appeal in her own name alone to the courts of law or equity for redress that the husband has.” Oregon Laws 1941, ch 228, p 356.

As was true with respect to the development of a wife’s right to bring an action for loss of consortium, legislative action was necessary to establish a right of a mother (as opposed to the father) to bring an action for an injury to her child. See ORS 30.010. And, as was true for the parent, so legislative development has been the key to the availability of actions for the benefit of the child.

In Oregon, the significance to the child of the parent-child relationship has been recognized in the fact that children now have a cause of action for wrongful death of a parent. ORS 30.020.¹ There are, however, significant limits to the child’s separate rights, and these limits are the product of judicial, not legislative, decision making. For example, the Supreme Court, in Burnette v. Wahl, 284 Or 705, 588 P2d 1105 (1978), disallowed a tort action by a child against its mother for damage incurred because of the failure of the mother to provide parental care, nurturance and companionship. The court, in refusing to allow the action, noted, "the legislature recognizing the necessity of parental nurture, support and physical care for children, has enacted a vast array of laws for the purpose of protecting or vindicating those rights. * * *” Id., at 709. The court went on to say,

"* * * [T]he statutory enactments demonstrate that the legislature has put its mind to the deprivations of which plaintiff children are alleged to be victims and has attempted to remedy such situations by enacting a vast panoply of procedures, both civil and criminal, to ensure that children receive proper nurturing, support and physical care. It has never undertaken to establish, however, a cause of action for damages for any emotional injury to the child which may have been caused by a parent’s refusal to provide these services. This failure of the legislature to act is significant because this is not a field of recovery which has heretofore been recognized by courts, and it would therefore be natural for it to have provided such a remedy if it thought it was wise in view of the social problem it attempts to solve and the statutory provisions it has enacted for that purpose. * * *” Id., at 710.

The court further noted,

«* * * [C]ourts must look carefully not only at the particular statute establishing the right or duty but at all statutes which might bear either directly or indirectly on the legislative purpose. If there is any chance that invasion into the field by the court’s establishment of a civil cause of action might interfere with the total legislative scheme, courts should err on the side of non-intrusion because it is always possible for the legislature to establish such a civil cause of action if it desires. Courts have no omnipotence in the field of planning, particularly social planning of the kind involved here. Courts should exercise restraint in fields in which the legislature has attempted fairly comprehensive social regulations.” Id., at 712.

Even a prominent decision recognizing a certain cause of action in a child also recognized the role of the legislature in establishing the basis for that judicially recognized right. In allowing an action by a child for injuries received before birth, the Supreme Court in Mallison v. Pomeroy, 205 Or 690, 696, 291 P2d 225 (1955), quoted with approval:

" 'Negligence law is common law, and the common law has been molded and changed and brought up-to-date in many another case.’” (Citing Woods v. Lancet, 303 NY 349, 102 NE2d 691, 27 ALR2d 1250 (1951)).

The court then went on to note, however, that the legislature had recognized the unborn child as a separate entity by providing protection for the child’s property rights and against criminal conduct directed at the unborn child. In view of that legislative foundation, the court concluded that there was no logical reason that the unborn child should not also be protected against injury by tort. Id., at 696-697.

The foregoing statutory and decisional history establishes two points: (1) the general availability of a right of action for loss of consortium or the loss of companionship has been expanded through the years through the legislative, not the judicial, process; (2) under closely analogous circumstances, the Oregon Supreme Court has refused to create a cause of action where the legislative scheme in the area did not already include it. We think this history justifies, if it does not direct, our conclusion here: The creation of a cause of action such as that sought by the plaintiff in this case must await legislative enactment.

Like the Supreme Court in Mallison, we regard the legislature’s involvement in this area as pertinent to our own inquiry. For instance, as already demonstrated, the legislature has recognized the interest of a child and the parent/child relationship when the parent dies as a result of the wrongful action of another. ORS 30.020(1). At the same time, however, it is apparent that providing for an action for the benefit of a child due to a death of a parent is a limited decision by the legislature, as opposed to the potentially open ended authority sought from this court which would allow recoveries even where the parent was not killed. We are not prepared to go all the way with a legal approach where the legislature, that portion of the government in which such policy decisions are commonly made, has chosen to make less than the entire trip.

As we view it, the legislature’s decision in allowing wrongful death actions for the benefit of children while not authorizing other kinds of actions is precisely the kind of policy and interest balancing to which this court should defer. We think that this is particularly true where, as here, in addition to the legislature’s limited acceptance of the right of children to bring suit where their relationship with their parent or parents has suffered injury, the legislature has also thoroughly occupied itself in the area of the family by determining the availability of actions for loss of consortium for both spouses. See ORS 108.100. Where the legislature has thoroughly involved itself in an area of the law and where its decisions in that area appear to set discreet boundaries, we think that it should be left to the legislature to change those boundaries, if they are to be changed, and to define the new ones. This is not to say that there may not be some justice in the abstract sense in permitting recovery in cases such as the one before us. It is to say, however, that there are other powers than ours which are involved in the establishment of causes of action in Oregon and that the question involved in this case should be submitted to those other powers.

The dissent makes much of the statutory right of a child to recover for the wrongful death of a parent, including damages "for loss of the society, companionship and services of the decedent; * * *” (ORS 30.020(2)(d)). We think, however, that there are several problems with the analogy it attempts to draw:

(1) It is not the child who has an action for wrongful death under ORS 30.020. There is only one plaintiff in a wrongful death action, and that is the personal representative, who brings the action for the benefit of the surviving spouse, surviving children, parents and other individuals, if any, who under the law of intestate succession would be entitled to inherit the personal property of the decedent. Among the elements of damages which may be awarded are those for loss of society, companionship and services. There is, however, no direct award to the children (who, incidentally, need not be minors). After a settlement or judgment, the damages are apportioned among the various beneficiaries in a separate proceeding at which each of the persons claiming entitlement puts on evidence as to his or her damage resulting of the death. Theoretically, the aggregate damages proved by all claimants could exceed the amount awarded in the principal lawsuit, in which case they are apportioned on a percentage basis.

(2) More importantly, an action for wrongful death may not be maintained unless "the decedent might have maintained an action, had he lived, against the wrongdoer for injury done by the same act or omission.” ORS 30.020(1). In other words, any defense the tortfeasor has or would have against the decedent is available against the personal representative. The action is derivative, not independent. That is not the case in an action for loss of consortium: it is an independent, separate injury to the spouse of the victim giving rise to a separate and independent action for damages resulting from that injury. It makes no difference that the victim spouse could not recover from the tortfeasor. See Naber v. Thompson, 274 Or 309, 546 P2d 467 (1976), overruling Whang v. Hong, 206 Or 125 (which held that a parent’s action for loss of services of a minor child was derivative of the child’s right and, if the child could not recover, neither could the parent).

(3) The dissenting opinion suggestion that we need not allow each of several children to maintain separate actions, but could require that they be joined in one action. We know of no basis upon which we could require such joinder, absent legislation.

Because our conclusion in this case is based upon what we perceive as a long standing pattern of legislative as opposed to judicial action in this area, we are not required to consider the other arguments advanced by defendant as alternative bases for affirming the trial court’s disposition of this case.²

The judgment of the trial court dismissing the plaintiff’s complaint is affirmed.

1 Pursuant to ORS 30.020 the action must be brought by the decedent’s personal representative. The spouse and children of the decedent are, however, the "real parties in interest.” Christensen v. Epley, 287 Or 539, 545, 601 P2d 1216 (1979). That action includes damages for pecuniary loss and for "loss of the society, companionship and services of the decedent; * * ORS 30.020(2)(d).

2 The other bases, some or all of which might also be a proper basis for the trial court’s ruling, are: (1) Lack of legal entitlement, i.e., since children do not have the legal right to insist that their own parents give them companionship, society and affection, it would incongruous to permit an action against third parties for denying to the children that which they were not entitled to insist upon. See Burnette v. Wahl, supra. (2) Excessive costs of allowing such claims, i.e., a concern that the kind of damages sought here are difficult to limit both in terms of who may seek them and for whose loss they may be sought. (3) Practical difficulties, e.g., how severe must the injury be to the parent before it may be said to deprive a child of at least some of the companionship the child would have otherwise enjoyed with the parent?