DocketNumber： No. 2004-0296
Citation Numbers： 108 Ohio St. 3d 494
Judges： Connor, Donnell, Lanzinger, Moyer, Parts, Pfeifer, Portion, Resnick, Respects, Stated, Stratton, Syllabus, Thereto
Filed Date： 3/3/2006
Status： Precedential
Modified Date： 7/21/2022
{¶ 1} We are asked to consider whether the parents of an unhealthy child born following negligent genetic counseling or a negligent failure to diagnose a fetal defect or disease may bring suit for the costs of having to raise and care for an impaired child. We hold that such a suit may be brought under traditional medical-malpractice principles and that the costs recoverable are those arising from the pregnancy and birth of the child. No consequential economic or consequential noneconomic damages may be recovered for the care and rearing of the child.
I. Facts and Procedural History
{¶ 2} Plaintiffs-appellants and cross-appellees, Helen and Richard Schirmer, initiated this action by filing a complaint asserting medical negligence and lack of informed consent against various defendants, including appellees and cross-appellants, Mt. Auburn Obstetrics & Gynecologic Associates, Inc., Kevin R. Fitzgerald, M.D., Children’s Hospital Medical Center, Martha Walker, M.S., and Howard M. Saal, M.D. The Schirmers alleged that defendants did not adhere to
{¶ 3} The pertinent facts are as follows.
{¶ 4} After conceiving Matthew, Mrs. Schirmer underwent a chorionic villus sampling (“CVS”) test. The testing indicated that the fetus was probably a female with the same chromosomal condition as Mrs. Schirmer and would therefore develop normally. Mrs. Schirmer also underwent several ultrasound tests to rule out abnormalities of the fetus. It was reported to the Schirmers that the studies showed that the fetus was developing normally.
{¶ 5} On September 9, 1997, Mrs. Schirmer gave birth to Matthew. Subsequent genetic testing of Matthew revealed that he had inherited a structurally abnormal extra chromosome known as Trisomy 22. The condition caused Matthew to have severe and permanent disabilities.
{¶ 6} The Schirmers alleged that because the genetic makeup of the fetus appeared to match that of Mrs. Schirmer, a possibility existed that the CVS had erroneously sampled maternal rather than fetal tissue. They argue that the defendants negligently performed and interpreted the diagnostic tests and that they were negligent in their failure to recommend further tests that would have revealed Matthew’s genetic abnormality. They claim that had they received such information, they would have opted to terminate the pregnancy.
{¶ 7} In their complaint, the Schirmers asserted three claims for damages: (1) damages relating to Mrs. Schirmer’s pregnancy and delivery of Matthew (i.e., obstetric costs and pain and suffering of pregnancy and delivery), (2) costs associated with raising and supporting a disabled child (i.e., consequential economic damages), and (3) emotional and physical injuries to the Schirmers resulting from the added burdens of raising and supporting a disabled child (i.e., consequential noneconomic damages).
{¶ 8} After months of proceedings before the trial court, the court journalized an agreed entry in which it recorded various stipulations by the parties and entered judgment. The Schirmers dismissed their claim for damages relating to
{¶ 9} The Schirmers appealed. The appellate court affirmed in part and reversed in part, holding that “because of the close causal nexus alleged between the medical negligence and the genetic harm to the Schirmers’ child, and because of the absence of the need to calculate the value of nonbeing in determining the amount of damages, the allegations in the Schirmers’ complaint state a valid medical claim. The measure of their damages is limited to those consequential, economic damages of raising their disabled child over and above the ordinary child-rearing expenses.” 155 Ohio App.3d 640, 2003-Ohio-7150, 802 N.E.2d 723, ¶ 1. But the court held that the Schirmers could not recover noneconomic damages, holding that such damages require a court to weigh the value of being and nonbeing, which is impermissible. Id. at ¶ 36.
{¶ 10} This cause is now before this court upon the acceptance of the Schirmers’ discretionary appeal and the defendants’ cross-appeal. Combined, the direct appeal and cross-appeal contest the existence of a “wrongful birth” tort in Ohio and the damages available under such a tort.
II. The Prenatal Torts
{¶ 11} We have examined the so-called prenatal torts, or birth-based medical-malpractice actions, on several occasions. There are three typical categories of these actions: wrongful pregnancy, wrongful birth, and wrongful life. “In a wrongful pregnancy action, one or both parents of a child born following a negligently performed sterilization procedure bring suit for the costs of having an unplanned child. * * * Most United States jurisdictions recognize this cause of action. * * * In a wrongful birth action, the parents of an unhealthy child born following negligent genetic counseling or negligent failure to diagnose a fetal defect or disease bring suit for the costs of having to raise and care for an impaired child, arguing that they were wrongfully deprived of the ability to avoid or terminate a pregnancy to prevent the birth of a child with the defect or disease.” (Emphasis sic.) Simmerer v. Dabbas (2000), 89 Ohio St.3d 586, 587, 733 N.E.2d 1169. Until today, the legitimacy of this second cause of action had not been addressed by this court. “Finally, in a wrongful life action, an
{¶ 12} The Schirmers assert that their claim is one for wrongful birth, but the defendants argue that the claim is actually nothing more than a derivative of a claim for wrongful life. Defendants quote a Missouri case in which the court held that no cause of action for either wrongful life or wrongful birth could be maintained. Wilson v. Kuenzi (Mo.1988), 751 S.W.2d 741. The case involved both a wrongful-life suit brought by a child afflicted with Down syndrome and a wrongful-birth suit brought by the child’s parents. The court, quoting a separate opinion in a case from the Court of Appeals of New York, held that a wrongful-birth claim could not be maintained in Missouri because (1) causation for wrongful birth is even more remote than for wrongful life because the parents are seeking to recover for an injury they have suffered as a result of the alleged injury to the child and (2) “[a] parent’s right to recover expenses occasioned by an injury to the child ‘ “is based upon and arises out of the negligence which causes the injury to the child.” The injury to the child results in a twofold action, one for the father and one for the child.’ [Becker v. Schwartz (1978), 46 N.Y.2d 401, 420, 413 N.Y.S.2d 895, 386 N.E.2d 807 (Wachtler, J., dissenting in part), quoting Psota v. Long Island RR. Co. (1927), 246 N.Y. 388, 396, 159 N.E. 180.] Thus the parents’ suit for the pecuniary losses is derivative; it cannot stand alone.” Wilson, 751 S.W.2d at 745. Therefore, “[i]f the child cannot establish a good cause of action to recovery [sic] for its injury, the parents’ suit for collateral losses, flowing from the injury to the child, must also fail.” Id. We are not persuaded by this reasoning.
{¶ 13} The causation issue in this case can be examined in terms of the pregnancy rather than the life of the child, as will be discussed in greater detail below. With respect to the cause of action itself, the parents’ claim is unique in that the injury to the parents is a lost opportunity to terminate the pregnancy — a claim sounding in medical malpractice rather than wrongful life or wrongful birth. Bader v. Johnson (Ind.2000), 732 N.E.2d 1212, 1219-1220.
{¶ 14} This discussion highlights the unfortunate dependence on terms such as “wrongful life” and “wrongful birth.” As we noted in Hester v. Dwivedi:
{¶ 15} “[0]verreliance on [these terms] creates the risk of confusion in applying principles of tort law to actual cases, and may compound or complicate resolution of the case. * * * Designating cases in this manner does serve a purpose in providing a shorthand description of the kinds of facts asserted by the plaintiffs. Nevertheless, determining that the instant case presents a ‘wrongful life’ claim*498 does not confer a special legal status on it, nor change the traditional legal analysis used to determine its merits.
{¶ 16} “Rather, such cases are properly decided by applying the same legal analysis employed in any medical negligence claim.” Id. at 578, 733 N.E.2d 1161. It is within that traditional framework that we analyze this case.
III. Medical Negligence
{¶ 17} Liability based on the alleged negligence of a medical professional requires proof of four elements: (1) a duty running from the defendant to the plaintiff, (2) a breach of that duty by the defendant, (3) damages suffered by the plaintiff, and (4) a proximate causal relationship between the breach of duty and the damages. Hester v. Dwivedi, 89 Ohio St.3d at 578, 733 N.E.2d 1161. With respect to the first two elements of medical negligence, duty and breach, the appellate court noted that the Schirmers sufficiently alleged these elements in their complaint. Neither of those elements is before this court, and we consequently do not address them.
A. Damages
{¶ 18} To properly evaluate the potential damages in this case, it is imperative to revisit the evolution of the prenatal tort cases. In Johnson v. Univ. Hosp. of Cleveland (1989), 44 Ohio St.3d 49, 540 N.E.2d 1370, a mother alleged that her doctors had negligently performed a tubal ligation, which she had undergone for sterilization purposes. Johnson became pregnant after the procedure and later gave birth to a baby girl. She sought damages for pain and suffering arising out of the pregnancy and birth, for injury to her person caused by the increased care, responsibility, and work involved in raising the child, and for child-rearing expenses. We held that Ohio does not allow the award of damages for child-rearing expenses in a wrongful-pregnancy action brought by parents. “In a ‘wrongful pregnancy’ action, Ohio recognizes the ‘limited damages’ rule which limits the damages to the pregnancy itself and does not include child-rearing expenses. The extent of recoverable damages is limited by Ohio’s public policy that the birth of a normal, healthy child cannot be an injury to her parents.” Id. at paragraph two of the syllabus.
{¶ 19} In Hester v. Dwivedi, we next considered the case in which a child is born with birth defects. In that case, the father argued on behalf of his child, Alicia, that she had suffered legally compensable injury because she was born. Hester was therefore a case of wrongful life as opposed to wrongful pregnancy. We recognized that it was implicit in the child’s argument that the defendants should be held liable to her mother, Patricia, based on breach of the duty to convey to Patricia the results of tests showing fetal abnormalities:
*499 {¶ 20} “Because the [parents] assert that Patricia would have opted for abortion [had she known of Alicia’s condition], adoption of the proposition that Alicia was thus injured would necessitate our acceptance of the proposition that abortion, therefore nonexistence, would have been better for Alicia than life accompanied by physical and/or mental deficiencies. We would, in effect, be making a judicial determination that the trial court is able to adjudicate that it would have been better for Alicia had she not been born. * * * The proposition that it would have been better for Alicia to have not been given life is inconsistent with our recognition of the value of life, as reflected in * * * precedent. It also would place the court in the position of comparing the value of being, albeit with handicaps, versus nonbeing.
{¶ 21} “We remain committed to the proposition * * * that such weighing falls within the ambit of moral, philosophical, and religious considerations rather than judicial.” Id. at 581-582, 733 N.E.2d 1161.
{¶ 22} In this case, the Schirmers argue not that Matthew suffered damages as a result of his being born rather than aborted, but rather that they, as his parents, suffered damages. In Hester, we anticipated a case such as this in dicta. We stated, “Abortion would, of course, have relieved the Hesters from the joys and benefits of parenthood, as well as the financial obligations associated with parenthood. If appellees failed to provide Patricia with the disconcerting test results, as alleged in the complaint, Patricia can claim to be injured in that she was deprived of the choice to avoid those expenses by terminating the pregnancy.” Id.
{¶ 23} The appellate court in this case used this language to conclude that the consequential, economic damages stemming from the cost of raising a disabled child over and above the ordinary child-rearing expenses for a normal child is a proper measure of damages in part because of “the absence of the need to calculate the value of non-being in determining these economic, consequential damages.” 155 Ohio App.3d 640, 2003-Ohio-7150, 802 N.E.2d 723, ¶ 34. But the calculation is not as straightforward as the appellate court assumed. Granted, courts make economic calculations comparing life without disability versus life with disability in tort cases all the time: but in such instances, there is direct responsibility for the condition — proximate cause. As we will discuss below, there was no tort committed here that resulted in the damages to Matthew’s genes. Further, it is simplistic to state merely that the damages are based upon the expenses incurred in raising Matthew with a disability over and above those expenses that his parents would incur if he were not disabled. The appellate court ignored the underlying but critical fact that Mrs. Schirmer claims that she would have terminated this pregnancy had she known the condition was present. We cannot simply skirt that claim and award damages based on a calculation of
{¶ 24} This holding remains intact. Nothing in the case at bar suggests a rationale for overturning the precedent precluding recovery when the measure of damages requires a valuation of being versus nonbeing. See, generally, Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, paragraph one of the syllabus (setting forth criteria for overruling precedent). Accordingly, consequential economic damages are unrecoverable in situations such as the one at bar, and the appellate court’s judgment on this issue is reversed.
{¶ 25} The appellate court properly opined that consequential noneconomic damages require a valuation of being versus nonbeing. A judge or jury would be asked to weigh the emotional and physical tolls resulting from raising and supporting a disabled child versus not having a child at all. No such damages are recoverable.
{¶ 26} Less problematic are the damages sought for Mrs. Schirmer’s pregnancy and delivery of Matthew. It is self-evident that when negligent medical care occurs in the course of a pregnancy, the parents may be deprived of the opportunity for informed decisionmaking concerning the health of the mother and the child. In such circumstance, we look to our decision in Johnson on the proper measure of damages in situations in which a pregnancy occurs through alleged medical negligence (wherein the parents’ decision to avoid pregnancy is impaired by the negligence of another) and extend that decision to cover those situations in which a parent is denied the opportunity for an informed decision-making process during pregnancy because of alleged medical negligence. As in wrongful-pregnancy cases, we find the “limited damages” rule applicable to wrongful-birth cases. Damages are therefore limited to costs arising from the continuation of the pregnancy after the negligent act and for the birth of the child. See Johnson, 44 Ohio St.3d 49, 540 N.E.2d 1370, paragraph two of the syllabus.
B. Causation
{¶ 27} “The law of negligence does not hold a defendant liable for damages that the defendant did not cause.” Hester, 89 Ohio St.3d at 583, 733 N.E.2d 1161. The damages discussed above (pregnancy- and birth-related, consequential economic, and consequential noneconomic) must still be analyzed in terms of
{¶ 28} In Hester, we held that the child, Alicia, could prove no set of facts justifying her recovery of damages based on the conduct of the appellee doctors. “[A]ppellees neither caused [Alicia’s] condition itself, nor could they have treated either Patricia or Alicia so as to allow Alicia to be born without spina bifida. Thus, the only injury causally related to the appellees’ breach of duty was the deprivation of the chance to make a fully informed decision whether to continue the pregnancy. That decision, legally, belonged to Patricia Hester.” Id. at 581, 733 N.E.2d 1161.
{¶ 29} Although Hester was characterized as a wrongful-life claim brought on behalf of the child, we find the reasoning applicable to the Schirmers’ wrongful-birth claim as well. Matthew’s condition was determined at his conception. Defendants did nothing to cause his condition and could not have prevented it by treating either Matthew or his mother. Accordingly, in this case, as in Hester, the only causally related injury is Mrs. Schirmer’s loss of the opportunity to decide to terminate her pregnancy.
{¶ 30} It is important to note that the issue of whether abortion should be considered a proper course of treatment during prenatal care is not before this court. Regardless of the multitude of moral, religious, policy, and legal arguments inherent in the abortion debate, the holding today merely recognizes that medical negligence during prenatal care that affects the parents’ ability to decide whether to continue the pregnancy may be actionable.
IV. Conclusion
{¶ 31} For the foregoing reasons, we hold that parents of an unhealthy child born following negligent genetic counseling or negligent failure to diagnose a fetal defect or disease may bring a medical-malpractice action for those costs arising from the pregnancy and birth of the child. As the Schirmers have voluntarily dismissed the claim for such damages, they cannot recover for those injuries. The trial court properly dismissed the Schirmers’ claims for consequential economic and noneconomic damages.
V. Judgment
{¶ 32} Accordingly, our judgment is as follows:
{¶ 33} 1. Parents of an unhealthy child born following negligent genetic counseling or a negligent failure to diagnose a fetal defect or disease may bring a medical-malpractice action for those costs arising from the pregnancy and birth
{¶ 34} 2. That part of the judgment of the court of appeals holding that the consequential, economic costs of raising the Schirmers’ disabled child over and above ordinary child-rearing expenses may be recoverable is reversed.
{¶ 35} 3. That part of the judgment of the court of appeals holding that the Schirmers may not recover noneconomic damages is affirmed.
{¶ 36} 4. That part of the judgment of the court of appeals remanding the cause for further proceedings is reversed, and the judgment of the trial court dismissing the cause is reinstated.
Judgment accordingly.
. Because the trial court dismissed the complaint on a Civ.R. 12(B)(6) motion, we must accept the allegations of the complaint as true. Maitland v. Ford Motor Co., 103 Ohio St.3d 463, 2004-Ohio-5717, 816 N.E.2d 1061, ¶ 16.