Simmons v. West Covina Medical Clinic ( 1989 )

Opinion

ORTEGA, J.

In this case, we conclude plaintiffs mother and child have failed to establish their respective causes of action for wrongful birth and wrongful life. Even if the defendant physician had provided the expectant mother with a certain genetic test, the test’s 20 percent probability of detecting the risk of Down’s Syndrome falls far short of the requisite reasonable medical probability standard of causation. We affirm the summary judgment for defendants.

Facts

Defendant Suneetha Ali, M.D., cared for plaintiff Brenda Simmons during her pregnancy at defendant West Covina Medical Clinic. On September 29, 1986, Brenda Simmons gave birth to plaintiff Brennan Simmons, who is afflicted with Down’s Syndrome. Plaintiffs filed this action against defendants for negligence, wrongful birth, and wrongful life on June 15, 1987.¹

According to the allegations of the operative pleading, defendants negligently failed to provide Brenda Simmons with appropriate genetic testing and counseling, thus denying her the opportunity to discover the genetic defect in her unborn child. Had she learned of the abnormality, she would have terminated the pregnancy.

Following preliminary procedural matters, defendants moved for summary judgment, contending plaintiffs as a matter of law cannot prove defendants’ negligence caused the harm. For the purpose of their motion only, defendants conceded they were negligent in failing to advise Brenda Simmons concerning the genetic test known as the maternal serum Alpha Fetoprotein test (AFP test). However, defendants argued their negligence did not proximately cause Brennan Simmons to be born, because the AFP test provides only a 20 percent probability of detecting the risk of Down’s Syndrome.

The record contains the following uncontroverted evidence concerning the AFP test. Section 6527 of chapter 17 of the California Code of Regulations, enacted in April 1986 pursuant to section 289.7 of the Health and Safety Code, requires clinicians to advise all pregnant women in their care of the availability of the AFP test for “pre-natal screening of neural tube defects of the fetus.” This information must be given at the woman’s first prenatal visit, provided she is within the first 20 weeks of gestation. The AFP test, which involves taking the woman’s blood sample, is performed on a voluntary basis between the 16th and 20th week of gestation.

In 1979, when the Legislature directed the Department of Health Services to develop AFP test regulations, the test was known to identify fetal neural tube defects such as spina bifida and anencephaly. It was only later, in 1984, that a possible association was reported between low maternal serum AFP and Down’s Syndrome. Approximately 20 percent of pregnant women under the age of 35 who are at risk with respect to Down’s Syndrome will be identified through the test. However, about 80 percent of women in that age group who are at risk will not be identified through the AFP test.

When the AFP test discloses a risk of Down’s Syndrome, the pregnant woman is referred for a second test, known as an amniocentesis test. This involves the withdrawal and testing of amniotic fluid from the sac in which the unborn child rests in the mother, and carries a higher risk of injury to the mother and fetus than does the AFP test. Currently, pregnant women under the age of 35 are not routinely given the amniocentesis test. Accordingly, for these women, the AFP test is the only commonly used method to identify the risk of Down’s Syndrome.

The trial court granted defendants’ motion for summary judgment, finding defendants did not proximately cause the harm since there was a less than 50 percent chance the AFP test would have detected the risk of Down’s Syndrome. Plaintiffs appeal from the summary judgment.

Issues

We must decide whether (1) defendants have demonstrated as a matter of law that they did not proximately cause the harm because even with an AFP test there was no reasonable medical probability of discovering the risk of Down’s Syndrome, and (2) whether plaintiffs should nevertheless be compensated for losing their less than even chance of avoiding the harm.

Discussion

1. Causation

Summary judgment, a drastic procedure which denies the adverse party the right to a trial on the merits, should be granted with caution. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35 [210 Cal.Rptr. 762, 694 P.2d 1134].) Summary judgment should only be granted when the evidence in support of the moving party establishes that there is no issue of fact to be tried. (Code Civ. Proc., § 437c.) The moving party bears the burden of furnishing supporting documents to establish the adverse party’s claims lack merit under any legal theory. (Lipson v. Superior Court (1982) 31 Cal.3d 362, 374 [182 Cal.Rptr. 629, 644 P.2d 822].) The court will strictly construe the moving party’s affidavits, while liberally construing those of the adverse party. (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417 [42 Cal.Rptr. 449, 398 P.2d 785].) Any doubt concerning the propriety of granting the motion should be resolved in favor of the adverse party. (Ibid.)

California recognizes a parent’s cause of action for the wrongful birth of a genetically deformed child where the physician negligently failed to inform the parent of the risk of bearing such a child. (Turpin v. Sortini, supra, 31 Cal.3d at pp. 225, 239.) California also recognizes a cause of action for wrongful life by the genetically deformed child. (Ibid.) But in most jurisdictions, recovery by the genetically deformed child “has been uniformly denied on the dual grounds that (a) a legal remedy contradicts the fundamental belief that human life has value, and (b) measuring damages by comparison of an impaired life with nonexistence is impossible. [Citations.]” (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 797, p. 143.)

In a successful wrongful birth and wrongful life action, the parents may recover for medical and extraordinary teaching and training expenses incurred during the child’s minority, but the child may not also recover for those same expenses. (Turpin v. Sortini, supra, 31 Cal.3d at p.238.) The child may recover medical expenses and special damages where the parents are unavailable to sue or where the expenses are incurred beyond the time of the parents’ legal responsibility for such care. (Ibid.) However, the child may not recover for pain and suffering and other general damages (id. at pp. 238-239), such as loss of earning capacity (Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 614 [208 Cal.Rptr. 899]).

As in ordinary medical malpractice cases, the plaintiffs in a wrongful life and wrongful birth case must establish the following basic elements:

“(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.” (Budd v. Nixen (1971) 6 Cal.3d 195, 200 [98 Cal.Rptr. 849, 491 P.2d 433]; Turpin v. Sortini, supra, 31 Cal.3d at pp. 229-230.) The sole element at issue here is that of proximate cause.

Under the above described principles in California, plaintiffs cannot recover where there is only a mere possibility the defendant’s negligence caused the wrong. (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403 [209 Cal.Rptr. 456]; Morgenroth v. Pacific Medical Center, Inc. (1976) 54 Cal.App.3d 521, 533 [126 Cal.Rptr. 681].) In this case, the undisputed evidence shows the AFP test would have provided only a 20 percent chance of uncovering Brenda Simmons’s risk of giving birth to a child with Down’s Syndrome. Defendants contend there is thus no “reasonable medical probability based upon competent expert testimony” (Jones v. Ortho Pharmaceutical Corp., supra, 163 Cal.App.3d at p. 402), that their failure to provide the AFP test deprived Brenda Simmons of the opportunity to terminate her pregnancy. We agree.

As stated in Jones v. Ortho Pharmaceutical Corp., supra, 163 Cal.App.3d 396, there exists an obvious distinction between a reasonable medical probability and a medical possibility. (Id. at p. 403.) There can be many, even an infinite number of, possible circumstances which can produce an injury. But a “possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury. [Citation.]” (Ibid.)

The undisputed evidence in this case demonstrates a significantly less than 50 percent chance of predicting the outcome of the pregnancy. Unlike Curlender v. Bio-Science Laboratories (1980) 106 Cal.App.3d 811 [165 Cal.Rptr. 477], where a properly performed genetic test would have provided a “high probability” (id. at p. 815) of disclosing the risk of TaySachs disease, the AFP test in this case would have provided only a 20 percent chance of disclosing the risk of Down’s Syndrome.

A mere 20 percent chance does not establish a “reasonably probable causal connection” (Jones v. Ortho Pharmaceutical Corp., supra, 163 Cal.App.3d at p. 403) between defendants’ negligent failure to provide the AFP test and plaintiffs’ injuries. A less than 50-50 possibility that defendants’ omission caused the harm does not meet the requisite reasonable medical probability test of proximate cause. (Id. at p. 404.)

Plaintiffs alternatively argue a triable issue of fact exists under the doctrine enunciated in Haft v. Lone Palm Hotel (1970) 3 Cal. 3d 756 [91 Cal.Rptr. 745, 478 P.2d 465]. In Haft, a father and son drowned in a motel pool, where, in violation of state law, no lifeguard or warning sign had been provided. No witnesses observed the drownings. Recognizing the motel’s failure to provide a lifeguard made it impossible for the plaintiffs to prove the cause of the accident, the Haft court shifted the burden of proof to the defendants to prove the drownings would have occurred even if a lifeguard had been provided. The Haft court stated: “[T]he shift of the burden of proof . . . may be said to rest on a policy judgment that when there is a substantial probability that a defendant’s negligence was a cause of an accident and when the defendant’s negligence makes it impossible, as a practical matter, for plaintiff to prove ‘proximate causation’ conclusively, it is more appropriate to hold the defendant liable than to deny an innocent plaintiff recovery, unless the defendant can prove that his negligence was not a cause of the injury.” (Id. at p. 11 A, fn. 19, italics added.)

Relying on Haft, plaintiffs maintain defendants violated state laws and regulations governing the AFP testing program implemented to detect birth defects. But the chance of avoiding the harm by complying with the statute in Haft was dramatically higher than in this case. In Haft, a “reasonably attentive lifeguard would without doubt have been aware of [the victims’] activities at the moment that the instant emergency arose.” (Haft v. Lone Palm Hotel, supra, 3 Cal.3d at p. 772, fn. 18.) Moreover, in Haft the chances of successful rescue were “very high” (ibid.), such that the court noted the plaintiffs “may well succeed in[ ] establishing that the absence of a lifeguard was an actual cause of the deaths as a matter of law even without a shift in the burden of proof [citations].” (Ibid.)

Here, on the other hand, the undisputed facts show the AFP test would have provided only a slim, 20 percent chance of detecting the harm. As in Jones v. Ortho Pharmaceutical Corp., supra, 163 Cal.App.3d 396, plaintiffs here would have us ignore the fact that in Haft there was a reasonable probability the presence of a lifeguard would have prevented the drownings. (Id. at pp. 405-406.) We cannot retroactively presume from defendants’ failure to comply with state AFP testing statutes and regulations that there was a reasonable degree of medical probability the test would have detected Down’s Syndrome in this case. (Ibid.)

In view of the undisputed evidence of plaintiffs’ low probability of avoiding the harm even with the AFP test, we decline to shift the burden of proof on the ground defendants’ failure to comply with the statutes and regulations made it impossible for plaintiffs to prove causation. Given the absence of any “reasonable medical probability based upon competent expert testimony” (Jones v. Ortho Pharmaceutical Corp., supra, 163 Cal.App.3d at p. 402) that defendants’ failure to provide the AFP test deprived Brenda Simmons of the opportunity to terminate her pregnancy, we conclude defendants have successfully demonstrated as a matter of law that their conduct did not proximately cause the harm.

2. Lost Chance Theory of Recovery

Plaintiffs contend their low statistical probability of avoiding the harm should not prevent them from recovering damages for their lost chance of terminating the pregnancy. Plaintiffs assert a jury could consider their low statistical probability of avoiding the harm, but only for the purpose of calculating damages. They assert it is unfair and unjust to apply the traditional medical probability test of causation to cases such as this, where the compensable injury is a lost chance rather than a tangible physical injury.

Both the parties and amici curiae have filed extensive briefs discussing numerous cases in foreign jurisdictions which have adopted the lost chance theory of recovery in medical malpractice cases where the defendants’ negligence deprived the plaintiffs of a less than even chance of survival. (See, e.g., Waffen v. U.S. Dept. of Health & Human Services (4th Cir. 1986) 799 F.2d 911; DeBurkarte v. Louvar (Iowa 1986) 393 N.W.2d 131; Herskovits v. Group Health Co-op. (1983) 99 Wn.2d 609 [664 P.2d 474], conc. opn. of Pearson, J.;² for an informative discussion, see King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences (1981) 90 Yale L.J. 1353; Note, Medical Malpractice: The Right to Recover for the Loss of a Chance of Survival (1985) 12 Pepper-dine L.Rev. 973; Annot., Medical Malpractice: “Loss of Chance” Causality (1987) 54 A.L.R.4th 10.) However, none of the cases identified by the parties involve the application of the lost chance doctrine in a wrongful birth and wrongful life case such as this.

Many of the lost chance cases rely on the following language contained in section 323 of the Restatement Second of Torts (1965): “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if [fl] (a) his failure to exercise such care increases the risk of such harm . . . (See Hamil v. Bashline (1978) 481 Pa. 256 [392 A.2d 1280]; Thompson v. Sun City Community Hosp., Inc. (1984) 141 Ariz. 597 [688 P.2d 605].) Many of the jurisdictions that adopted section 323 also require the jury to decide whether the increased risk was a substantial factor in causing the ultimate harm. (See, e.g., McKellips v. Saint Francis Hosp., Inc. (Okla. 1987) 741 P.2d 467; Hamil v. Bashline, supra, 481 Pa. 256; Evers v. Dollinger (1984) 95 N.J. 399 [471 A.2d 405].)³

But we perceive a fundamental distinction between negligently reducing a patient’s chance of survival and negligently depriving a woman of the chance to abort a genetically defective child. In the former situation, the patient’s condition may be attributable to a host of factors in addition to the physician’s negligence. Thus some courts have recognized that the difficulties of identifying, defining and proving injury in these types of medical malpractice cases justify the application of a more flexible standard of causation. (See Evers v. Dollinger, supra, 95 N.J. 399; Hamil v. Bashline, supra, 481 Pa. 256.) But in the case of a genetically deformed child, it cannot be said that the hereditary condition was caused by the medical practitioner’s negligence when no degree of medical intervention could have worked a cure. And where, as here, the probability of predicting the genetic defect is only 20 percent, we think established tort principles fairly impose liability only where there is a reasonable medical probability of predicting the outcome of the pregnancy.

It is interesting to note that at least three of the jurisdictions that recognize a lost-chance theory of recovery in medical malpractice cases do not permit a child, for reasons of public policy, to recover for wrongful life. (Berman v. Allan (1979) 80 NJ. 421 [404 A.2d 8]; Becker v. Schwartz (1978) 46 N.Y.2d 401 [413 N.Y.S.2d 895, 386 N.E.2d 807]; Speck v. Finegold (1979) 268 Pa.Super. 342 [408 A.2d 496].) This dichotomy illustrates both the tremendous difficulty in weighing the value of an impaired life as opposed to nonexistence, and the many philosophically different ways in which society views those two conditions.

Under the facts of this case, we decline to establish a more lenient standard of causation. To do so would be contrary to sound logic, legal precedent, and public policy. It would unwisely encourage costly and unreasonable overtesting and overtreatment for defensive purposes. Physicians would find it necessary to place the requirements of the legal system before the needs and the finances of the patient. In addition, the physicians’ increased exposure to liability would adversely impact already high medical malpractice premiums, resulting in an upward spiral of consumer costs. The uncertainty fostered by such a ruling would undoubtedly open the proverbial floodgates of our overburdened judicial system.

We refuse to expand the circle of liability by abandoning established tort law principles of causation where there is only a mere possibility of detecting the genetic defect. We do not wish to intrude upon the Legislature’s task of weighing such matters of public policy, and leave to it the function of deciding whether to provide a remedy for those genetically defective children and their parents who are unable to prove to a reasonable medical certainty that medical negligence deprived the mother of the chance to terminate her pregnancy.

Disposition

We affirm the summary judgment. Each party is to bear its own costs on appeal.

Hanson (Thaxton), J., concurred.

1 Brennan Simmons, a minor, brings his cause of action for wrongful life by and through his mother and guardian ad litem, Brenda Simmons, who also brings her own cause of action for wrongful birth. The terms “wrongful life” for actions by the child and “wrongful birth" for actions by the parents have been adopted by the California Supreme Court. (Turpin v. Sortini (1982) 31 Cal.3d 220, 225, fn. 4 [182 Cal.Rptr. 337, 643 P.2d 954].)

2 The “majority” opinion in Herskovits has but two signatories, while the “concurring” opinion has four. The two dissenting opinions have three signatories between them. Thus, Justice Pearson’s concurring opinion represents the plurality view.

3 This line of reasoning apparently arose from the following dicta in Hicks v. United States (4th Cir. 1966) 368 F.2d 626: “When a defendant’s negligent action or inaction has effectively terminated a person’s chance of survival, it does not lie in the defendant’s mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable.” (Id. at p. 632; see, e.g., Thompson v. Sun City Community Hosp. Inc., supra, 141 Ariz. 597 [688 P.2d 605]; O’Brien v. Stover (8th Cir. 1971) 443 F.2d 1013; Jeanes v. Milner (8th Cir. 1970) 428 F.2d 598.)