Goldberg v. Ruskin

JUSTICE MILLER

delivered the opinion of the court:

In this action for medical malpractice brought by the plaintiffs, Michael and Nancy Goldberg and their child Jeffrey, against Stephen B. Ruskin, M.D., and his employer, Strauss Surgical Group Associates, S.C., recovery was sought on the child’s behalf for general damages for his wrongful life. The circuit court of Cook County dismissed that part of the plaintiffs’ amended complaint for failure to state a cause of action. The appellate court affirmed the dismissal (128 Ill. App. 3d 1029), and we allowed the plaintiffs’ petition for leave to appeal (103 Ill. 2d R. 315(a)).

According to the amended complaint, Dr. Ruskin served as Nancy Goldberg’s obstetrician while she was pregnant with Jeffrey. The child was born April 6, 1978; later it was discovered that he was afflicted with TaySachs disease, an incurable and fatal hereditary disorder. The basis alleged for the action was Dr. Ruskin’s failure during the pregnancy to administer any tests for TaySachs disease or to inform the Goldbergs of the possible occurrence of the disease and the existence of tests for it. The Goldbergs asserted that they would have aborted the pregnancy had they known that the child would have Tay-Sachs disease, and in count I of the amended complaint recovery was sought on behalf of the child for his pain and suffering. In a second count, which is not involved in this appeal, the parents sought to recover the medical expenses they incurred as a result of the child’s illness and damages for their emotional distress. The circuit court dismissed the first count for failure to state a cause of action and, with respect to the second count, certified two questions concerning the damages recoverable by the parents in their action against the defendants. The appellate court, with one justice dissenting, affirmed the dismissal of the child’s action. In answer to the certified questions, the court also determined that the parents could state a cause of action here for medical expenses and emotional distress. The child died while the case was pending in the appellate court, and his father was named special administrator of his estate for purposes of prosecuting the appeal.

As we have said, the only issue presented in this appeal concerns the child’s recovery of general damages under a wrongful life theory. The defendants have not made an issue here of the appellate court’s resolution of the certified questions, and thus no question is presented concerning the parents’ action in the second count of the amended complaint. The National Tay Sachs and Allied Diseases Association has submitted a brief amicus curiae supporting the plaintiffs’ position.

In general, in an action for wrongful life a child who has been born with a disease or other disorder asserts that he would not have been born had the physician or other health-care professional in question informed his parents that the particular ailment might occur. Also necessary to the action is, of course, the assertion that the parents would not have conceived the child or would have aborted the pregnancy if they had been given the information. (See Comment, The Trend, Toward Judicial Recognition of Wrongful Life: A Dissenting View, 31 U.C.L.A. L. Rev. 473, 493 (1983).) The child’s action should be distinguished from the parents’ separate action for wrongful birth, which will arise out of the same cluster of facts but will involve distinct interests and damages. (Cf. Cockrum v. Baumgartner (1983), 95 Ill. 2d 193 (expenses of rearing healthy child denied to parents in “wrongful pregnancy” action brought following negligently performed sterilization operation).) It should be noted that in the child’s action here compensation is sought for general damages only — his pain and suffering — and thus we do not consider here the separate question whether a child may recover medical or other special expenses associated with his disease or disorder. See Siemieniec v. Lutheran General Hospital (1985), 134 Ill. App. 3d 823, appeal allowed (1985), 108 Ill. 2d 589 (allowing recovery of special damages by child in wrongful life action).

The weight of authority refuses to permit a child to recover general damages in an action for wrongful life. (See, e.g., Elliott v. Brown (Ala. 1978), 361 So. 2d 546; Turpin v. Sortini (1982), 31 Cal. 3d 220, 643 R2d 954, 182 Cal. Rptr. 337; Strohmaier v. Associates in Obstetrics & Gynecology, P.C. (1982), 122 Mich. App. 116, 332 N.W.2d 432; Smith v. Cote (1986), 128 N.H. 231, 513 A.2d 341; Procanik v. Cillo (1984), 97 N.J. 339, 478 A.2d 755; Becker v. Schwartz (1978), 46 N.Y.2d 401, 386 N.E.2d 807, 413 N.Y.S.2d 895; Speck v. Finegold (1979), 268 Pa. Super. 342, 408 A.2d 496, aff’d by an equally divided court (1981), 497 Pa. 77, 439 A.2d 110; Nelson v. Krusen (Tex. 1984), 678 S.W.2d 918; Harbeson v. ParkeDavis, Inc. (1983), 98 Wash. 2d 460, 656 P.2d 483; Dumer v. St. Michael’s Hospital (1975), 69 Wis. 2d 766, 233 N.W.2d 372.) The nearly universal rejection by the courts of a child’s recovery of general damages for wrongful life is based in the main on the value of life and the inherent difficulty of ascertaining a cognizable injury for which damages may be meaningfully awarded. See, e.g., Turpin v. Sortini (1982), 31 Cal. 3d 220, 235, 643 P.2d 954, 963, 182 Cal. Rptr. 337, 346; Procanik v. Cilio (1984), 97 N.J. 339, 353-54, 478 A.2d 755, 763; Becker v. Schwartz (1978), 46 N.Y.2d 401, 411, 386 N.E.2d 807, 812, 413 N.Y.S.2d 895, 900.

The plaintiffs acknowledge the nearly complete absence of decisional law supporting the theory of recovery asserted by the child here, but they believe that the objections to recovery only obscure the true nature of this action, which, they say, is no different from any other suit to recover damages for pain and suffering. Attempting to confine the inquiry to familiar territory, the plaintiffs contend that the action here involves no more than compensation for the undeniable pain and suffering endured by the child as a result of his disease, and they would find here all the elements necessary to state a cause of action for negligence — duty, breach, proximate cause, and injury.

The theory of recovery asserted by the child here must be distinguished from the cause of action recognized in Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348. In Renslow suit was brought on behalf of a child who was injured as a result of a transfusion, occurring some nine years before her birth, in which blood of an incompatible type was administered to the child’s mother. Recognizing what was termed a right to be born whole, Renslow held that a cause of action was stated for the child’s injuries, even though the child was not in utero at the time of the occurrence. In Renslow, as in other cases alleging prenatal torts (see, e.g., Chrisafogeorgis v. Brandenberg (1973), 55 Ill. 2d 368; Amann v. Faidy (1953), 415 Ill. 422), the occurrence of an injury caused by the tortfeasor’s conduct is clear: had the negligent act not occurred, presumably the child would have lived or been born healthy. But in this case, Dr. Ruskin’s alleged failure during the patient’s pregnancy to test for and diagnose the disease did not cause it to occur or make it worse, nor did his conduct prevent or hinder its treatment in any way. Thus it is not enough to say, as the plaintiffs do, that the cause of action asserted here is one simply for pain and suffering and requires no reference to the alternatives of existence or nonexistence. Rather, the actual premise for the child’s action here is that he would have been better off not being born at all, and indeed in the amended complaint the child alleged a right not to be born.

For these reasons we find unpersuasive Curlender v. Bio-Science Laboratories (1980), 106 Cal. App. 3d 811, 165 Cal. Rptr. 477, a major prop of the plaintiffs’ argument here. In Curlender the defendant medical laboratory gave the parents incorrect information regarding whether they were carriers of the Tay-Sachs gene; following that, the child was born, afflicted with the disease. The court held that the child and the parents could recover the costs of the child’s medical expenses and that the child could recover damages for her pain and suffering. Like the plaintiffs here, the appellate court in Curlender believed that in making those determinations the focus could be a narrow one; in that case the court said, “We need not be concerned with the fact that had defendants not been negligent, the plaintiff might not have come into existence at all.” (106 Cal. App. 3d 811, 829, 165 Cal. Rptr. 477, 488.) Although the California Supreme Court denied review of Curlender (see Turpin v. Sortini (1982), 31 Cal. 3d 220, 240, 643 P.2d 954, 966, 182 Cal. Rptr. 337, 349 (Mosk, J., dissenting)), the court later rejected, in Turpin, that part of the Curlender decision permitting the child to recover damages for her pain and suffering. Turpin was critical of the appellate court’s attempt in Curlender to divorce the inquiry from any consideration of life and nonlife and said, in language that is applicable to the argument made by the plaintiffs here:

“The basic fallacy of the Curlender analysis is that it ignores the essential nature of the defendants’ alleged wrong and obscures a critical difference between wrongful life actions and the ordinary prenatal injury cases noted above. In an ordinary prenatal injury case, if the defendant had not been negligent, the child would have been born healthy; thus, as in a typical personal injury case, the defendant in such a case has interfered with the child’s basic right to be free from physical injury caused by the negligence of others. In this case, by contrast, the obvious tragic fact is that plaintiff never had a chance ‘to be born as a whole, functional human being without total deafness’; if defendants had performed their jobs properly, she would not have been born with hearing intact, but — according to the complaint — would not have been born at all.” 31 Cal. 3d 220, 231, 643 P.2d 954, 961, 182 Cal. Rptr. 337, 344.

We agree that the cause of action asserted here cannot be so easily compressed within the framework suggested by the plaintiffs. An action for wrongful life centers on the argument that the child would have been better off not being born at all; the objection underlying the general refusal to permit a child to recover general damages is the impossibility of entering the shadow world implicit in the suggested comparison of life with nonlife. Concurring in the majority’s decision in Gleitman v. Cosgrove (1967), 49 N.J. 22, 63, 227 A.2d 689, 711 (Weintraub, C.J., concurring in part and dissenting in part), to deny a child’s action for wrongful life, Judge Weintraub observed:

“Ultimately, the infant’s complaint is that he would be better off not to have been born. Man, who knows nothing of death or nothingness, cannot possibly know whether that is so.

We must remember that the choice is not between being born with health or being born without it; it is not claimed that the defendants failed to do something to prevent or reduce the ravages of rubella. Rather the choice is between a worldly existence and none at all. *** To recognize a right not to be born is to enter an area in which no one could find his way.”

The argument that the child was in some meaningful sense harmed by being born and would have been better off not being born suggests that there is a perspective, apart from our life and world, from which one can stand and say that he finds nonexistence preferable to existence. Determining whether an injury has occurred in these circumstances is a matter outside the competence of the legal system, for, as another court has said, whether it is better not to be born at all than to be born with even the most serious illness is a question more properly left to others. (See Becker v. Schwartz (1978), 46 N.Y.2d 401, 411, 386 N.E.2d 807, 812, 413 N.Y.S.2d 895, 900.) In light of these considerations, judicial restraint on this subject has wisely prevailed.

Related to this are intractable problems of assessing damages for the asserted harm. Compensatory damages are intended to restore a person to the position he occupied before the occurrence of the injury complained of or to compensate the person for the loss, and in the normal case this is done by comparing the person’s injured state with the condition he would be in had the injury not occurred. The tort suggested here resists analysis, however; the required comparison cannot meaningfully be made in the context of wrongful life. In suggesting that damages in an action for wrongful life are essentially unknowable, one commentator has noted:

“When we deal with material damage the detriment is calculated by comparing the present value of the article (or of the entire property) with that which it would have had but for the damage; i.e., the difference. Even when considering non-material injury such as an attack on someone’s reputation, the assessment is by comparison: the previous position, namely the ideal state of the injured person were it not for the damage, and the worsened position in which he finds himself as a result of the act for which the tortfeasor is responsible.

In our case, however, no comparison is possible since were [it] not for the act of birth the infant would not exist. By his cause of action, the plaintiff cuts from under himself the ground upon which he needs to rely in order to prove his damage.” (Tedeschi, Tort Liability for ‘‘Wrongful Life,” 7 J. Fam. L. 465, 483 (1967).)

To be sure, the difficulty of ascertaining damages for a particular wrong is not a reason to deny a cause of action for its redress. (See Story Parchment Co. v. Paterson Parchment Paper Co. (1931), 282 U.S. 555, 75 L. Ed. 544, 51 S. Ct. 248.) But the point to be made here is not that the calculation of damages for the asserted tort would be merely difficult, but rather that the task would be meaningless and impossible. Because “there is no rational way to measure non-existence or to compare nonexistence with the pain and suffering of the child’s impaired existence” in an action for wrongful life (Procanik v. Cilio (1984), 97 N.J. 339, 353, 478 A.2d 755, 763), no reasoned basis exists on which damages could be awarded. The difficulties in evaluating the harm and measuring the damage are insurmountable barriers to recovery here.

Nonetheless, the plaintiffs seek to find support for their action in the developing view that special damages may be recovered by a child in an action for wrongful life; the damages allowed in those cases have been based on the past and future medical expenses and other special costs resulting from the child’s disease or condition. (See Turpin v. Sortini (1982), 31 Cal. 3d 220, 643 P.2d 954, 182 Cal. Rptr. 337; Procanik v. Cillo (1984), 97 N.J. 339, 478 A.2d 755; Harbeson v. Parke-Davis, Inc. (1983), 98 Wash. 2d 460, 656 P.2d 483.) In those cases the courts have denied the recovery of general damages, however, and therefore those decisions provide little support for the plaintiffs’ argument here. In distinguishing the two types of damages, the courts have emphasized that special damages in this regard are calculable while general damages are not; moreover, because the courts have held that the extraordinary medical costs and other special expenses associated with the child’s ailment may be recovered by the child’s parents in an action for wrongful birth, those courts have found no reason to deny to the child recovery of the same expenses. (See Turpin v. Sortini (1982), 31 Cal. 3d 220, 239, 643 P.2d 954, 965-66, 182 Cal. Rptr. 337, 348-49; Procanik v. Cillo (1984), 97 N.J. 339, 351-52, 478 A.2d 755, 762; Harbeson v. ParkeDavis, Inc. (1983), 98 Wash. 2d 460, 479-83, 656 P.2d 483, 495-97.) Although we do not intimate any view here regarding the recovery of medical costs and other special damages by a child or his parents in an action for wrongful life or birth, we believe the distinctions between general and special damages drawn by the courts in Turpin, Procanik, and Harbeson are telling, and we conclude that those cases provide no support for the recovery sought by the child here.

Consistent with the decisional law on this question, we hold here that a child may not recover, in an action for wrongful life, damages for pain and suffering associated with the disease or condition that underlies the action. For these reasons, then, we affirm that part of the judgment of the appellate court affirming the circuit court’s dismissal of count I of the plaintiffs’ amended complaint.

Judgment affirmed.