Emerson v. Magendantz ( 1997 )

OPINION

WEISBERGER, Chief Justice.

This ease comes before us on questions of law certified by a justice of the Superior Court in response to a motion to dismiss pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure filed by the defendant, Henry Magendantz, M.D., in opposition to a complaint of plaintiffs, Diane Emerson and Thomas F. Emerson (the Em-ersons or Diane), alleging negligence on the part of the defendant. The certified questions are as follows:

“1. Is there a cause of action under Rhode Island law when a physician negligently performs a sterilization procedure and the patient subsequently becomes pregnant and delivers a child from that pregnancy?

“2. If so, what is the measure of damages?”

The facts giving rise to these certified questions may be summarized as follows from the pleadings and the documents filed by the parties in the Superior Court and in this court. Following the birth of their first child, the Emersons decided for financial reasons to limit their family to one child. Having made this decision, Diane consulted defendant, who was a gynecological specialist, concerning sterilization procedures. The defendant agreed to perform a surgical tubal ligation and did so upon Diane on January 10,1991. Subsequently, on or about May 31, 1991, Diane was seen by an obstetrician, who determined that she was pregnant in spite of the preceding tubal ligation. Diane gave birth to a child on January 11, 1992. The child, who was named Kirsten, is alleged to have congenital problems that are only generally described in the complaint. Following Kirsten’s birth, Diane underwent a second tubal ligation.

In March 1994 the Emersons filed a complaint in the Superior Court for the County of Providence, alleging that Kirsten’s birth was proximately caused by defendant’s negligent performance of the tubal-ligation procedure. The complaint also alleged that defendant had failed properly to inform Diane and to obtain her consent prior to surgery.

The Emersons also allege that as a result of defendant’s negligence Diane suffered severe physical pain and required additional invasive medical treatment. The Emersons further allege that they have suffered mental anguish and distress and that they have lost wages and earning capacity as a result of Diane’s unanticipated pregnancy. The Em-ersons further complain that as a proximate result of defendant’s negligence, they have incurred an obligation to expend monetary resources for the medical care and maintenance of Kirsten and that they will continue to be so obligated for many years to come.

I

Is There a Cause of Action under Rhode Island Law When a Physician Negligently Performs a Sterilization Procedure and the Patient Subsequently Becomes Pregnant and Delivers a Child?

This question poses an issue of first impression in this state. Of the numerous courts that have considered this question, only one state court of last resort has declined to recognize a cause of action in tort arising out of the negligent performance of a sterilization procedure. Szekeres v. Robinson, 102 Nev. 93, 715 P.2d 1076 (1986). Even Nevada has suggested there may be an action for breach of warranty. Id. 715 P.2d at 1079.¹ All other jurisdictions that have considered this question have determined that the negligent performance of a sterilization procedure is a tort for which recovery would be allowed under state law. See, e.g., University of Arizona Health Sciences Center v. Superior Court of Arizona, 136 Ariz. 579, 667 P.2d 1294 (1983); Ochs v. Borrelli, 187 Conn. 253, 445 A.2d 883 (1982); Jones v. Malinowski, 299 Md. 257, 473 A.2d 429 (1984); Burke v. Rivo, 406 Mass. 764, 551 N.E.2d 1 (1990); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977); Marciniak v. Lundborg, 153 Wis.2d 59, 450 N.W.2d 243 (1990). In all, approximately thirty-five jurisdictions recognize a cause of action for negligent perfor-manee of sterilization procedures whether performed on the wife or on the husband.

We are persuaded by the overwhelming majority of opinions that recognize negligent performance of a sterilization procedure as a tort for which recovery may be allowed. Therefore, we answer the first question in the affirmative.

II

What Is The Measure Of Damages?

Courts that have recognized the cause of action arising out of the negligent performance of sterilization or comparable procedures have adopted three general types of remedies as compensation for negligent procedures resulting in unwanted pregnancies. Thirty jurisdictions have adopted a remedy of limited recovery. See Boone v. Mullendore, 416 So.2d 718 (Ala.1982); Wilbur v. Kerr, 275 Ark. 239, 628 S.W.2d 568 (1982); Coleman v. Garrison, 349 A.2d 8 (Del.1975), modified in part by Garrison v. Medical Center of Delaware, Inc., 581 A.2d 288 (Del.1990); Flowers v. District of Columbia, 478 A.2d 1073 (D.C.App.1984); Public Health Trust v. Brown, 388 So.2d 1084 (Fla.Dist.Ct.App.1980); Fulton-DeKalb Hospital Authority v. Graves, 252 Ga. 441, 314 S.E.2d 653 (1984); Cockrum v. Baumgartner, 95 Ill.2d 193, 69 Ill.Dec. 168, 447 N.E.2d 385, cert. denied, 464 U.S. 846, 104 S.Ct. 149, 78 L.Ed.2d 139 (1983); Garrison v. Foy, 486 N.E.2d 5 (Ind.Ct.App.1985); Nanke v. Napier, 346 N.W.2d 520 (Iowa 1984); Byrd v. Wesley Medical Center, 237 Kan. 215, 699 P.2d 459 (1985); Schork v. Huber, 648 S.W.2d 861 (Ky.1983); Pitre v. Opelousas General Hospital, 530 So.2d 1151 (La.1988) (granting expenses of pregnancy and delivery, mother’s pain and suffering, loss of consortium, and emotional distress for pregnancy resulting from failed sterilization, and intimating that proof of foreseeable risk of birth defects might result in greater damages); Macomber v. Dillman, 505 A.2d 810 (Me.1986); Rinard v. Biczak, 177 Mich.App. 287, 441 N.W.2d 441 (1989); Girdley v. Coats, 825 S.W.2d 295 (Mo. banc 1992); Kingsbury v. Smith, 122 N.H. 237, 442 A.2d 1003 (1982) (court referred to case as “wrongful birth” case, but child was healthy); Hitzemann v. Adam, 246 Neb. 201, 518 N.W.2d 102 (1994); P. v. Portadin, 179 N.J.Super. 465, 432 A.2d 556 (1981); O’Toole v. Greenberg, 64 N.Y.2d 427, 488 N.Y.S.2d 143, 477 N.E.2d 445 (1985); Jackson v. Bumgardner, 318 N.C. 172, 347 S.E.2d 743 (1986); Johnson v. University Hospitals of Cleveland, 44 Ohio St.3d 49, 540 N.E.2d 1370 (1989); Morris v. Sanchez, 746 P.2d 184 (Okl.1987); Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 453 A.2d 974 (Pa.1982); Smith v. Gore, 728 S.W.2d 738 (Tenn.1987); Crawford v. Kirk, 929 S.W.2d 633 (Tex.App.1996); C.S. v. Nielson, 767 P.2d 504 (Utah 1988); Miller v. Johnson, 231 Va. 177, 343 S.E.2d 301 (1986); McKernan v. Aasheim, 102 Wash.2d 411, 687 P.2d 850 (1984) (en banc); James G. v. Caserta, 175 W.Va. 406, 332 S.E.2d 872 (1985); Beardsley v. Wierdsma, 650 P.2d 288 (Wyo.1982).

Under the limited-recovery rule the foregoing jurisdictions frequently grant compensation to the plaintiffs for the medical expenses of the ineffective sterilization procedure, for the medical and hospital costs of the pregnancy, for the expense of a subsequent sterilization procedure, for loss of wages, and sometimes for emotional distress arising out of the unwanted pregnancy and loss of consortium to the spouse arising out of the unwanted pregnancy. They also generally include medical expenses for prenatal care, delivery, and postnatal care.

A number of jurisdictions allow for recovery of the cost of child rearing as an element of damages. These jurisdictions may be divided into two groups. One group allows the cost of child rearing but balances against this cost the benefits derived by the parents, either economic or emotional, from having a healthy child. See, e.g., University of Arizona Health Sciences Center v. Superior Court of Arizona, 136 Ariz. 579, 667 P.2d 1294 (1983); Ochs v. Borrelli, 187 Conn. 253, 445 A.2d 883 (1982); Burke v. Rivo, 406 Mass. 764, 551 N.E.2d 1 (1990).

Two jurisdictions have adopted a full-recovery rule without offsetting either the economic or the emotional benefits to be derived from having a healthy child. Lovelace Medical Center v. Mendez, 111 N.M. 336, 805 P.2d 603 (1991); Marciniak v. Lundborg, 153 Wis.2d 59, 450 N.W.2d 243 (1990). These two courts apply traditional tort principles in allowing for recovery of all damages that are reasonably foreseeable and that would result from the negligent performance of the sterilization procedure. In analyzing § 920 of the Restatement (Second) Torts (1979), which recommends consideration of benefits conferred in mitigation of damages, the New Mexico Supreme Court concluded that applying emotional benefits to economic loss did not apply similar benefits to similar losses. Lovelace, 805 P.2d at 613-14. Consequently that court denied recovery for emotional distress and also denied any offset of emotional benefits derived from having a healthy child. Id.

Similarly the Supreme Court of Wisconsin declined to offset emotional benefits against economic loss. Marciniak, 450 N.W.2d at 249. The court also declined to offset economic benefits because the court deemed them to be insignificant. Id.

After considering with great care the opinions in support of limited recovery, of full recovery with benefit offsets, and of full recovery without benefit offsets, we have decided to adopt the limited-recovery rule as described above, save for the element of emotional distress arising out of an unwanted pregnancy that results in the birth of a healthy child.

The Supreme Court of Washington in McKernan v. Aasheim, supra, has made some pertinent comments:

‘We believe that it is impossible to establish with reasonable certainty whether the birth of a particular healthy, normal child damaged its parents. Perhaps the costs of rearing and educating the child could be determined through use of actuarial tables or similar economic information. But whether these costs are outweighed by the emotional benefits which will be conferred by that child cannot be calculated. The child may turn out to be loving, obedient and attentive, or hostile, unruly and callous. The child may grow up to be President of the United States, or to be an infamous criminal. In short, it is impossible to tell, at an early stage in the child’s life, whether its parents have sustained a net loss or net gain.” 687 P.2d at 855.

Similarly, the Delaware Supreme Court, in denying recovery of child-rearing costs, suggested that determining damage from the birth of a child was an “exercise in prophecy.” Coleman v. Garrison, 349 A.2d 8, 12 (Del.1975). Such a weighing process might be applied at the end of a life but not at the beginning. Such an undertaking was not felt to be within the specialty of factfinders. Id. In Rieck v. Medical Protective Co. of Fort Wayne, Indiana, 64 Wis.2d 514, 219 N.W.2d 242 (1974), later superseded by Marciniak v. Lundborg, supra, the Supreme Court of Wisconsin, in a wrongful-birth case wherein pregnancy was diagnosed too late for an abortion to be performed, commented upon the alternative of adoption as follows:

“To allow damages in a suit such as this would mean that the physician would have to pay for the fun, joy and affection which plaintiff * * * will have in the rearing and educating of this, defendant’s fifth child. Many people would be willing to support this child were they given the right of custody and adoption, but according to plaintiffs statement, plaintiff does not want such. He wants to have the child and wants the doctor to support it. In our opinion to allow such damages would be against public policy.” Rieck, 219 N.W.2d at 245 (quoting Shaheen v. Knight, 11 Pa.D. & C.2d 41 (1957)).

In Johnson v. University Hospitals of Cleveland, 44 Ohio St.3d 49, 540 N.E.2d 1370, 1377 (1989), the Supreme Court of Ohio, after considering rules adopted by the various states, suggested that it would not mechanically apply the rules of proximate cause and foreseeability. It suggested that proximate cause is merely the limitation that the courts have placed upon the actor’s responsibility for the consequences of the actor’s conduct. Id. (citing Prosser & Keeton, The Law of Torts, § 41 at 264 (5th Ed.1984)). The court cited with approval the text that “ ‘the legal limitation of the scope of liability is associated with policy — with our more or less inadequately expressed ideas of what justice demands.’” 540 N.E.2d at 1377. The court went on to reject the no-recovery rule, the offsetting-benefits rule, and the full-recovery rule. Id. at 1378. In rejecting the full-recovery rule, the court stated that the “strict rules of tort should not be applied to an action to which they are not suited, such as a wrongful pregnancy case, in which a doctor’s tortious conduct permits to occur the birth of a child rather than the causing of an injury.” Id. The court went on to state that the “limited-damages theory [was] the most persuasive rule.” Id. In Cockrum v. Baumgartner, supra, the Supreme Court of Illinois also canvassed the field of decisional and textual law. It concluded by stating:

“We cannot on balance accept the plaintiffs’ contention too that we should rigidly and unemotionally, as they put it, apply the tort concept that a tortfeasor should be liable for all of the costs he has brought upon the plaintiffs. It has been perceptively observed, by distinguished authority [Justice Holmes], that the life of the law is not logic but experience. Reasonableness is an indispensable quality in the administration of justice. * * * The reasons given for denying so-called rearing costs are more convincing than the reasons for abstractly applying a rule not suited for the circumstances in this character of case.” 69 Ill.Dec. at 173, 447 N.E.2d at 390.

We are of the opinion that the public policy of this state would preclude the granting of rearing costs for a healthy child whose parents have decided to forego the option of adoption and have decided to retain the child as them own with all the joys and benefits that are derived from parenthood. Their decision to forego the option of releasing the child for adoption constitutes most persuasive evidence that the parents consider the benefit of retaining the child to outweigh the economic costs of child rearing. See Public Health Trust v. Brown, 388 So.2d 1084, 1086 (Fla.Dist.Ct.App.1980), pet. den., 399 So.2d 1140 (Fla.1981); see also Fassoulas v. Ramey, 450 So.2d 822 (Fla.1984).

In implementing the limited-benefit rule, such parents would be entitled to recover the costs that the overwhelming majority of jurisdictions have allowed. Under this rule, plaintiffs would be entitled to recover the medical expenses of the ineffective sterilization procedure, the medical and hospital costs of the pregnancy, the expense of a subsequent sterilization procedure, loss of wages, loss of consortium to the spouse arising out of the unwanted pregnancy, and medical expenses for prenatal care, delivery, and postnatal care. However, no recovery would be allowable for emotional distress arising out of the birth of a healthy child.

In the event of the birth of a child who suffers from congenital defects, which birth is a result of an unwanted pregnancy arising out of a negligently performed sterilization procedure, we would follow the reasoning of the Supreme Court of Florida. In Fassoulas, the prospective parents, having had two children both of whom had been bom with severe congenital abnormalities, sought to prevent the birth of further children through a vasectomy performed upon the husband. 450 So.2d at 822. The vasectomy was unsuccessful, and two children were bom, the second with a birth deformity that was corrected. Id. at 822-23. The court went on to deny child-rearing damages for a normal, healthy child, id. at 823-24, but observed that in the case of a physically or a mentally handicapped child, special medical and educational expenses beyond normal rearing costs should be allowed. Id. at 824. The court recognized that the “ ‘financial and emotional drain associated with raising such a child is often overwhelming to the affected parents.’ ” Id. Therefore, the court held that special costs associated with bringing up a handicapped child would be recoverable. We believe that the reasoning of the Florida court is sound but would add that when a physician is placed on notice, in performing a sterilization procedure, that the parents have a reasonable expectation of giving birth to a physically or a mentally handicapped child or if the physician should be placed on notice, by reason of statistical information of which he/she is or should be aware in the practice of his/her profession, then the entire cost of raising such a child would be within the ambit of recoverable damages. It should also be noted that the extraordinary costs of maintaining a handicapped child would not end when the child reached majority. Nor would the physician’s liability necessarily end at that point. Offset against such liability would be any economic benefits derived by the parents from governmental or other agencies that might contribute to defraying the costs of caring for the child or its support in adult life. Also in the event of the birth of a physically — or a mentally — handicapped child, the parents should be entitled to compensation for emotional distress.

The foregoing determinations are made by this court in answer to the second certified question submitted by the Superior Court. The papers in the case may be remanded to the Superior Court for further proceedings.²

1 . In Greco v. United States, 111 Nev. 405, 893 P.2d 345 (1995), the Supreme Court of Nevada, in answering a certified question to the United States District Court for the District of Maryland, held that a mother might prosecute an action of medical malpractice against professionals who negligently failed to make a timely diagnosis of gross and disabling fetal defects, but further held that the child had no personal cause of action for “wrongful life.”

2 . Our brothers in dissent suggest that the tort of a negligently performed sterilization procedure that results in the birth of a healthy child is a routine common law negligence case. Unfortunately, that suggestion though plausible will not withstand analysis. The issue of awarding damages for the birth of a healthy child was unknown to the common law. In answering the certified question on measure of damages, we have attempted to adopt a rule that is consonant with that chosen by thirty other jurisdictions. With all due respect to the constitutional suggestions raised in Ochs v. Borrelli, 187 Conn. 253, 445 A.2d 883 (1982), we believe that Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), have little if any relevance to our determining a measure of damages for a negligent act performed by a physician. The constitutional rights in respect to contraception and abortion recognized in the foregoing cases inhibit governmental agencies from interfering with the exercise of such rights. They do not purport to place a burden upon negligent physicians for the raising of a healthy child. Even Justice Douglas, who was the author of Griswold v. Connecticut, would have difficulty in considering the principles enunciated therein as a basis for a measure of damages for negligence.

The suggestion that our answer to the certified question creates a suspect classification is also unfounded. Our colleagues are aware that suspect classifications are those based upon race, alienage, or national origin. See, e.g., Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Kleczek v. Rhode Island Interscholastic League, Inc., 612 A.2d 734, 736 (R.I.1992): At least until today, the Supreme Court of the United States has not applied strict judicial scrutiny to statutes (or court decisions) that formulate a rule of damages based upon relatively new causes of action. We believe that the constitutional gloss placed upon the selection of a rule of compensation is more ephemeral than real. We also believe that the citation of numerous cases relating to special procedural rules for malpractice actions including our opinion in Boucher v. Sayeed, 459 A.2d 87 (R.I.1983) are just not relevant to the determination of our answer to the second certified question in the case at bar.