Arche v. United States

64,252 No. Appellants, Arche, Arche Nicole United States John Department Appellee. America, Army, of of P.2d (798 477) Opinion August filed 1990. Morris, Chartered, Lynn Johnson, R. Shamberg, Johnson, Bergman & of Parisi, Park, cause, firm, argued M. of Overland of the same John Robertson, Robertson, Chartered, and Walter P. Walter P. of Junction City, appellants. were with on for him the briefs Olsen, A. Attorney, City, argued Robert Assistant United States of Kansas cause, Wichita, Benjamin Burgess, Jr., L. Attorney, United States appellee. was with him on the brief for the Stratton, Goodell, Stratton, Palmer, Wayne T. Topeka, Edmonds & amicus curiae Kansas Medical Society. was on the brief Atcheson, P.A., Uhlig, G. Gordon City, of Blake & was on the Kansas for amicus Lawyers curiae brief Kansas Trial Association. opinion of the court was delivered This is a medical malpractice Miller, C.J.: brought action United States District Court for the District of Kansas by against and Nicole Arche the United States of John America, E. Department Army. Judge Chief Earl O’Connor the United States District Court has the following certified questions pursuant resolution this court Uniform Act, K.S.A. 60-3201 Questions seq.: Certification of of Law et 1. recognize Does- Kansas law a cause of action for the permanently handicapped birth of a child? action,

2. such a cause of what is the If Kansas does upon proper proof? extent of which recovered defendant’s rejected request Chief O’Connor Judge standard of care be certified this court. appropriate issue of will The facts the case are thus irrelevant and not be noted a ques- here. We limit our to determination of two opinion certified, has prior tions neither of which been resolved our we answering questions express cases. We that in these emphasize opinion plaintiffs ultimately prevail no as to whether should this action. A types malpractice helpful discussion of three of related torts is —

in our These torts analysis questions. wrongful certified — life, wrongful have pregnancy, wrongful evolved technology recognition because of advances in and the of a wom- an’s a right prevent conception pregnancy. to or to terminate See 497 Pa. 439 A.2d generally Speck v. Finegold, Comment, Born, “Wrongful Right The Not to be 54 Tul. Life”: L. Rev. 480 (1980).

In the tort of who have wrongful pregnancy, parents taken suit, bring medical caused steps prevent pregnancy damages bom, aby child nevertheless even if that child is being born Schimke, 245, 248, healthy. See v. 239 Kan. 718 P.2d Bruggeman 635 (1986). majority addressing question, The of states in- Kansas, a cluding recognized have cause of action for limited Elkins, v. damages wrongful pregnancy. Johnston 407, 412, Kan. 736 P.2d 935 in which we a (1987), recognized cause of an vasectomy resulting action for unsuccessful in the However, child. we conception healthy birth of a have con- sistently damages beyond refused to allow those suffered prior and at the the child. 241 Kan. at Johnston, birth of 413. In refusing damages rearing for the costs of a normal and allow Center, healthy Med. 237 Kan. Byrd Wesley child in P.2d we noted: proceeding are not concerned with an unsuccessful sterilization “[W]e here , physically handicapped

followed retarded or child. mentally , only alleged Our concern with claimed when it is here items thereafter, negligently performed,. procedure that a sterilization normal, healthy parent.” child was bom to the ‘sterilized’ brought by The tort of constitutes an action wrongful life ;for child, that, impaired alleges the child but the de whereby treatment, the child would hot have negligent fendant’s advice or defendant; is not caused impairment been born. The or determining informing is in not only negligence Schimke, 239 Kan. at Bruggeman the defect before birth. recognize Brugge We have refused to tort of life. 248. man, states majority addressing 239 Kan. at 254. have refused to the cause of action. See question right 239 Kan. at 249. There is no not to be legal Bruggeman, born, born create a new allowing being an action for would tort, principles rather than established tort to techno applying advances. logical

The tort of birth differs from the tort of life claim brought by parents, they in that the suit is who would pregnancy they have or terminated the had conception avoided the risks existence of been advised of or birth defects properly child. See 239 Kan. at 248. See potential Bruggeman, Annot., Liability Wrongfully Causing Tort One to generally Born, 83 A.L.R.3d 15. Whether a cause of action for wrongful in the case of a child born with defects recognized birth will be in Kansas. question impression is a of first jurisdictions recognized courts in other have Twenty action. State the action include: v. opinions recognizing Lininger court Eisenbaum, Wilkerson, (Colo. 1988); Haymon 764 P.2d 1202 v. (D.C. 1987); by 535 A.2d 880 Garrison Garrison v. Medical Delaware, Inc., A.2d (Del. 1989) Center 571 786 (unpublished court, Westlaw); text in Ramey, order of the of order Fassoulas v. Cruz, 253, 1984); 450 So. 2d 822 Blake v. 108 Idaho 698 (Fla. §§ P.2d 5-310 and (1984) (superseded by 315 Idaho Code 5-311 Ruskin, [1990]); by Goldberg and v. 128 Ill. Goldberg through 1029, 482, 113 Ill. 2d (1984), 3d 471 N.E.2d 530 499 App. aff'd v. General 530 (1986); Opelousas Hosp., N.E. 2d 406 Pitre So. 777, 2d v. 406 Mass. 551 (La. 1988); Milunsky, 1151 Viccara Bartolo, 35, (1990); App. N.E.2d 8 v. 162 Mich. 412 Proffitt Cote, 231, 128 N.H. (1987); N.W.2d 232 Smith v. 515 A.2d 341 Perkel, 53, 432 A.2d (1986); (1981); Schroeder v. 87 834 N.J. Lerman, 807, 382, Bani-Esraili v. 69 N.Y.2d 513 N.Y.S.2d 505 497 Pa. 77 (1987); Speck Finegold, (superseded N.E.2d 947 v. § 42 Pa. Stat. Ann. 8305 1990 by Supp.]); Cons. [Purdon Jacobs Theimer, 1975); 846 Naccash v. 223 (Tex. Burger, v. 519 S.W.2d Parke-Davis, Inc., 406, v. (1982); Va. 290 S.E.2d 825 Harbeson

279 Caserta, 460, 483 G. (1983); 2d 656 P.2d v. 98 Wash. James _ _, v. (1985); Va. 872 Dumer St. Michael’s W. 332 S.E.2d 766, 233 N.W.2d 372 Federal court 69 Wis. 2d Hospital, U.S., v. F. Phillips action include: 575 opinions recognizing Carolina Robak (D.S.C. 1983) law); 1309 South Supp. (applying U.S., 1981) (applying law). 471 Cir. Alabama (7th v. 658 F.2d cited California, been

Arizona, Utah have sometimes action, clearly has been but the issue recognizing states Pizano by states. See Walker in those and determined presented 37, Superior Andalon v. Mart, (1990); 790 P.2d 735 164 Ariz. v. 600, 899 (1984); Payne Court, Rptr. 208 Cal. Cal. 3d App. 162 (Utah 1987) (see 186 743 P.2d Myers, v. through Payne [1987]). et seq. § Ann. 78-11-23 Utah Code Defendants three decisions in which courts have refused cite Kuenzi, v. birth actions: Wilson 751 S.W.2d (Mo.), (1988); Ding cert. 109 S. Ct. 229 Azzolino v. denied (1985), 315 N.C. 337 S.E.2d 528 cert. denied 479 felder, U.S. 835 reh. denied N.C. S.E.2d 401 Spencer by through Spencer Seikel, 742 P.2d 1126 (Okla. 1987).

Wilson, recently 751 S.W.2d has distinguished been v. St. Medical Supreme Anthony’s the Missouri Court Shelton Center, (Mo. 1989). 781 S.W.2d In Shelton the court merely a cause the plaintiff allowed of action because did not claim pregnancy (a state that she have terminated would she from barred but that suffered emotional distress statute), the defendants’ ultrasound tests and properly interpret failure to was not developing normally. advise her her fetus Azzolino, Duke distinguished Gallagher N.C. 773, fed- 1988), 852 Cir. where the University, (4th F.2d 776-78 court, law, action eral Carolina allowed cause of applying North genetically to a im- gave to a and birth woman who conceived that incorrectly informed defendants paired being after In Gal- genetically her first child’s were not caused. impairments decision to conceive lagher, distinguished plaintiffs court from the claim in Azzolino negligent plaintiffs based on advice that, avail- advised of the she should have been conception, after ability of amniocentesis.

280 1126,

Spencer, is distinguishable wrongful 742 P.2d from other birth case physician fully cases in that the in that informed suffering mother that tests showed the fetus was hydro- from cephalus and informed the that fully mother effects of that impairment. only The mother’s claim was did physician not option her of the abortion. None of the cited cases inform omission; rely recognizing wrongful the action of on this rather, is in negligence discovering impairment.

We note Minnesota Court Supreme has upheld a statute constitutionality prohibiting wrongful birth claims. Plan, Inc., Hickman v. 396 Health N.W.2d 10 Group (Minn. 1986). A bill birth or prohibiting wrongful life actions 1983, was passed introduced in Kansas but was not out of Senate Bill Judiciary Damages: Commitee. 1983 Senate 258. Note Birth, Recovery in Actions Damages JWrongful Wrongful and 23 Wrongful Conception, Washburn 309 (1984). Life L.J. 22, Gleitman 49 227 A.2d 689 Cosgrove, (1967), N.J. the first United case in the States. to address the question of . whether a cause of action for birth would be judicially recognized. Jersey The New Court refused Supreme to recognize action, such a partly cause of its finding because of that abortion violated public abortion policy partly illegal because was then under state except statute the mother’s life. save

During years, major the next twelve changes two occurred: increased, The ability to greatly detect in útero defects the United Supréme recognized States Court right woman’s Wade, 113, obtain an abortion. Roe v. 410 U.S. 35 L. Ed. 2d 147, 93 S. Ct. reh. U.S. 959 (1973). denied 410

These the New changes Jersey Supreme reject caused Court to its former reasoning a cause of action for Allan, birth in Berman v. 404 A.2d 8 (1979). The N.J. Wade, 410 Bolton, court held that Roe U.S. Doe v. 410 U.S. Ed. 2d S. Ct. had L. established policy rather public supported, now than con troverted, that a woman could not be proposition denied meaningful to make to have opportunity the decision an abortion. Berman, at 431-32. physicians In the defendant did not N.J. inform the plaintiffs prenatal testing procedures of available which would have that Mrs. carrying shown Berman was a fetus with a of action for court disallowed cause syndrome. Down’s The birth, life, for allowed the cause of action but damages might be found between that causation acknowledging aof woman’s and the denial the defendants’ failure to inform pregnancy. terminate her to whether to right constitutional choose prevail to in a medical three elements plaintiff prove A must a was owed “(1) duty action in this state:' that malpractice breached; duty (3) that was (2) physician patient; to >breached’duty that a causal connection existed between 242 Kan. injury patient.” Lipoff, Wozniak v. sustained 583, 587, (1988). P.2d 971 law, were ‘‘that the child would

Under Kansas if it determined défect,” Nicole Arche could'have be born with or mental physical Wade, chosen to have an abortion. K.S.A. 21-3407. Roe recognizes right U.S. a woman to have abortion. to plaintiff right We Arche denied her assume Nicole not seek an abortion make an whether or to decision informed Under under facts which and should have been disclosed. could circumstances, we of wrongful all of these hold that action in recognized birth is Kansas. (cid:127) state, in In action this recognizing cause of handi- severely permanently we assume is that the child context, mean, we this that the child capped. handicapped, By correctable, deformities, that the medically has such gross human being. child will to function as normal never able part is negligence We further assume that there on defendants; the child could have been gross defects of birth; that defendants by appropriate testing prior determined tests; and that no such plaintiffs perform owed such were performed, performed, negligently tests were or or if offered performed. to be is the extent remaining question answered damages wrongful

which are be allowed. Formulas for University vary Superior cases Ariz. widely. generally úf Note, Court, Damages: 667 P.2d 1294 136 Ariz. Birth, Wrongful Wrongful in Actions Recovery Damages 309; Clinite, 23 Washburn Conception, and Wrongful L.J. Life Damages, 70 Ill. Birth: The Measure Wrongful Appropriate plaintiff a tort restore the The aim action B.J. he or have position occupied to she would had the injury 901, § of (Second) not occurred. Restatement Torts comment However, case, in a birth result of the tor- benefit, existence, Nevertheless, tious conduct is the or of child. quite agreement now by general “[t]here should at permitted be to recover least their pecuniary losses.” Keeton, 55, § Prosser Law p. (5th of Torts 371 ed. 1984). In Gleitman v. 49 New Cosgrove, Jersey case N.J. which first refused to a cause of action for wrongful birth, damages the court held that would be too difficult to mea- sure because the court “would have evaluate the denial ... of unmeasurable, the intangible, and complex human benefits of motherhood and weigh against fatherhood and these the alleged money emotional and 49 injuries.” at 29. N.J. later, however, Allan, Twelve years Berman v. 80 N.J. the court that parents’] held “to redress for deny injuries [the merely damages because cannot be with precise measured ex- actitude would a perversion constitute of fundamental principles justice.” 80 at 433. The court allowed recovery for the N.J. parents’ emotional distress but disallowed special damages out of a lingering concern that the all parents would retain the benefits forcing the child while the defendants all the to bear financial burdens. In the court modified its holding Berman allowing recovery extraordinary medical expenses. Schroeder Perkel, v. 87 53. N.J.

Almost all allowing cases the action now those allow expenses See, States, caused by the child’s v. handicaps. e.g., Robak United 471; Eisenbaum, 1202; 658 F.2d Lininger v. 764 P.2d Siemieniec v. Lutheran General 117 Ill. 2d 512 Hospital, N.E.2d 691 Cilio, (1987); Procanik Procanik v. 97 478 A.2d 755 N.J. _ Caserta, _, G. v. W. Va. 332 S.E.2d 872. James Some courts of these have limited only these ex- See, 824; penses. e.g., Fassoulas 2d at Ramey, v. So. Smith Cote, 231; Perkel, 128 N.H. 53. Schroeder N.J. Wrongful plaintiffs desire a typically plan is, course, support the child. Such obligation of all parents. It is therefore reasonable to those normal deny Cote, forseeable costs which accrue all parents. See Smith v. 244; 450 So. 2d at 824. Ramey, 128 N.H. at Fassoulas v. We caused the child’s expenses handicaps may hold that those recovered, natural to child. expenses raising any but not those

We in a plaintiffs next must consider whether suit may recover for emotional distress. Some courts have held recover for emotional distress suffered as the the birth of an child and the consequence witnessing impaired Cruz, stress such a child. See Blake v. consequent raising 253; Center, Idaho v. St. Medical 781 S.W.2d Anthony’s Shelton 48; Allan, 421; Burger, Berman v. Naccash v. 223 Va. N.J. Annot., 406. See Dam- generally, Recoverability Compensatory ages Tortiously for Mental or Emotional Distress for Anguish Birth, Causing Another’s 74 A.L.R.4th 798.

The rule in Kansas is that can sustain a cause of action plaintiffs for negligent injuries infliction of emotional distress caused the of a third the party only they if were witnesses to occurrence Brinton, which caused the v. 241 Kan. injury. Smelko Shawnee, P.2d 591 v. 231 Kan. City Schmeck of P.2d 1263 We have thus far held that of results (1982). visibility the tortious act does not rise to opposed visibility give to a claim The child’s in this case injury for emotional damages. fetus; occurred the during development without human fault injury the were not aware of the at the time. The parents their disabled child and suffered responsible Schmeck were disablement, were denied emotional distress because of the but distress. We see no reason recovery why wrongful emotional birth case should be We therefore hold that dam- distinguished. ages for distress are not recoverable in emotional case. wrongful birth

We be ap- next determine whether the “benefit rule” should the defendant. The ben- plied damages payable by to reduce from any plaintiffs efit rule benefits to requires special damages caused having against child should be offset usually The rule has been negligence. applied the defendant’s for the against damages general for emotional distress or damages Note, Birth: Owes costs of a child. See Who raising Wrongful & Lee L. Rev. Why?, What to Whom and 40 Wash. for emotional may necessary damages The rule be where allowed, emotions positive

distress are to take account those into existence, the child’s or where the normal costs engendered by allowed, plaintiffs’ a child are to take into account the raising denied items Having damage, benefit of both parenthood. however, award unnecessary we find it to allow reduction of the rule. The costs of for a special caring of the benefit means subject any to offset in themselves. logically disabled child are actions, rule in birth discussing In benefit . Eisenbaum, (Colo. Colorado court in 764 P.2d 1206 Lininger 1988), noted that two cases had discussed issue: Gal- prior lagher University, v. Duke 852 F.2d held the offset rule cases; Cruz, does not 108 Idaho apply wrongful Blake only 698 P.2d 315 held the offset rule applies those claims for the emotional distress. The parents’ Lininger court decide declined to whether for emotional distress could be whether the offset rule would apply recovered or those but found the rule did not as to actual damages, apply “We think it that the damages, stating, extraordinary clear fi- suffered, to have Liningers burden claim will nancial suffer, sufficiently pleasure they continue to unrelated to the will derive from as to raising preclude op- disabled [their child] at 1207. agree eration of the benefit rule.” 764 P.2d We and find applied “benefit rule” not be should cases in Kansas. determined,

The final dam- question concerning be allowable ages, expenses may is over what of time be period such recovered. expenses Those courts with the issue of whether presented child’s, compensated beyond age majority have generally they may found that the child be incapable where will U.S., 1309, of v. 575 F. self-support. Phillips Supp. 1317 (D.S.C. 1983) (extraordinary expenses impaired recoverable for U.S., 40-year child’s life F. 982 expectancy); Supp. Robak v. 503 (N.D. 1980), part (7th Ill. d in F.2d 471 part, 658 rev’d aff Eisenbaum, 1202; 1981); Cir. Lininger v. 764 P.2d Garrison Delaware, Inc., Garrison v. Medical Center 571 A.2d 786 Cruz, (Del. 1989) Westlaw); v. (text of order in Blake 108 Idaho extraordinary beyond costs allowed law (statutory applied; 253 231, 245, Cote, 515 A.2d 128 N.H. majority); Smith age of -, Caserta, W. Va. 332 S.E. 2d -- G. v. 341 James 773, 852 F.2d University, v. Duke Gallagher (1985). 872 Contra Lerman, 778 (4th Cir. 1988); Bani-Esraili v. 807, 69 N.Y.2d N.Y.S.2d 505 N.E.2d The court in Garrison Garrison v. Medical Center Del-

aware, Inc., 571 A.2d held that those expenses which exceed for, the usual and ordinary raising, caring costs of and educating awarded over the unimpaired impaired child’s life or life to the extent the child remains expectancy dependent upon either or both The court held the would parents. child, stand in a fiduciary relationship with the with a to duty account all damages. sums recoverable as Cruz, court in Blake v. noted that general Idaho rule is that the to a obligation parent support child ceases However, when the child reaches the age majority. ail excep- tion occurs for the adult is physically child who and mentally incapacitated.

Legal scholars find it doubtful that there was a duty by parents to their support children under earliest common law in England Comment, and in this country. See The Parental to Duty Support Children, Disabled Adult De Paul L. Rev. 245-47 (1960). Rather, the was believed duty only to be moral one unless Annot., dictated by statute. See Parent’s Obligation Support Child, Adult 1 A.L.R.2d 913. An early decision in this country recognized unjust, that this seemed but held the common law considered moral such obligations nature better “left in their performance impulses of nature.” 9 De Paul L. Rev. Davis, at 246 (citing Kelley [1870]). N.H. 187 however, Ry the twentieth century, majority of American view, that, statute, repudiated courts this and held regardless of parents are under a as well as a moral legal duty their n.8; Annot., children. See cases cited in 9 De Paul L. Rev. at 247 Postmajority Disability Reviving Parental Duty Support Child, 919; Annot., 910; 48 A.L.R:4th 1 A.L.R.2d 59 Am. Jur. 2d, § Parent and Child 90. The obligation now “sometimes spoken of as one under law and common sometimes as matter justice, of natural and is right accepted often as a matter of course Without the assignment any reason.” 9 De Paul L. Rev. at 247.' first, however,

Courts still varied at in their view of the extent that, to which this existed. Some held courts the absence 286 statute, terminated when the child duty reached majority,

even though incapable the adult child was of self-support through physical handicap. Napa or mental See State Hospital Flaherty, 315, Moss, 444, 134 Cal. 66 Pac. 322 (1901); Moss v. 163 Wash. 1 P.2d 916 duty

Other courts held the continued where the child remained incompetent, under the rationale that the adult child remained as helpless as an infant. The primary foundation for the imposition of a duty common-law is that children support are incompetent themselves; remains, where the support foundation duty Mallone, 125, remains. See Ky. Crain v. 130 113 S.W. (1908); 67 523, Gaydos v. Domabyl, 301 Pa. 152 A. 549 (1930). jurisdictions These finding legal duty of support were split by various restrictions put continuing on obligation by some of the courts. Some courts required adult child be in- capacitated Crain, at the time reaching majority. Ky. 130 125; Annot., Later, § 48 A.L.R.4th the Kentucky 2[b]. court that the adult required child have remained a member of Dowden, 12, 15, the household. See Ky. Breuer v. 268 S.W. 541 (1925).

We have held a parent has a duty common-law of support extending long as the child is so incapacitated as to be unable to maintain and support himself or herself. See In re Estate of Glass, 1, ¶ 175 Kan. Syl. 262 P.2d 934 (1953); Prosser v. Prosser, 159 Kan. P.2d 544 Sheneman v. Man ring, Kan. 107 P.2d 741 (1940). All three cases relied upon Kansas statutes to support finding that Kansas recog- nized a common-law of a parent support an adult incom- petent child.

In Sheneman v. 152 Kan. Manring, indigent adult daughter incapable of supporting herself because of health prob- lems unspecified opinion obtained an order from the pro- court, court, bate affirmed the district monthly from the estate incompetent of her father. The estate was found to be ample for the needs of both. guardian arguing father’s appealed, daughter was no

longer a member of her father’s household. We accepted this law, exception as part old common but found that support was properly mandated the broad equity powers granted the probate support probate court. We further found for the court’s 1935, 39-233, a declaring decision in G.S. statute that parents are their support incompetent liable for the of children. The 483, opinion cites State v. 105 Kan. Bryan, Pac. 25 Bateman, 546, quotes from State v. Kan. 204 Pac. 682 “ (1922), that R.S. 1923 39-233 ‘is an innovation of [G.S. 1935] relatives, the common-law of liability recognizes the moral obligation resting upon parent provide for an adult insane ” child, and makes that a imperfect obligation legal of one.’ 1935, Kan. at 782. The in Sheneman cites opinion also G.S. 59- 1804 (1939 Supp.), which authorizes the guardian of an incom- petent person to for the of the pay support incompetent’s “chil- dren”— without it limiting to “minor children.” We affirmed the order, district court’s allowing monthly payments for support child, adult where incompetent the incompetent parent’s contribution, estate was shown “readily afford” the under au- thority of the statutory and vested in equitable powers probate ¶ court. 152 Kan. Syl. 1.

Courts often relied on laws” “poor requiring contribution parents, even distant grandparents, or more relatives to the sup- port indigent children incompetent generally or adults. See Comment, 9 De Paul L. Rev. at 246. The courts nevertheless often found means to enforce common-law obligation support where such laws poor were not in existence or were inapplicable. Prosser,

Such was the case in Prosser 159 Kan. where the mother indigent, of an adult incompetent daughter brought an action against daughter’s father for contribution to the retarded, deaf, daughter’s The support. daughter mentally was father, partially paralyzed, totally almost blind. The divorced mother, from the had ceased daughter’s contributions for his when she support although financially reached he was able to continue lived support. daughter with and was cared for mother, by her it all finding impossible who to meet expenses entailed her care. The was nevertheless un- mother to admit a state willing daughter institution. authority

The father there was argued statutory requiring no noted, however, We support. brought the action was not statute, . authority under of a but “brought parent provide to enforce the law common for the support generally accepted and maintenance his children. It is rule that becoming age where a dependant child on is in such a feeble and con- dition, physically mentally, support parental or as to be unable to himself the obligations unchanged.” and duties toward such a child remain 159 Kan. at 653.

We cited Sheneman v. Manring, 152 Kan. and G.S. 39-233, in imposing liability upon parents for their incompetent adult children. 159 Kan. at 653-54. We therefore upheld district court’s denial of the father’s demurrer to daughter’s petition. Glass,

The final Kansas case we must consider is In re Estate of 175 Kan. 246. The presented issue there was “whether the claim of the state department of social welfare against a parent for the support of incompetent children committed to a state hospital survives the death the parent may and be proved as a demand against parent’s estate.” 175 Kan. at 247. decedent, Glass,

The Lucy was the mother of two adult in- competent children who were committed to the Osawatomie State Hospital. She left a will in which she left bequests no or devises to these two children. During probate proceedings, State filed a timely for of its demand against allowance petition maintenance,, care, Glass estate for the and treatment of two adult incompetent children up to date of Mrs. Glass’s death. The objected, executor contending that the State’s claim abated and did not survive decedent’s death. Both the probate and dis- trict courts objection. sustained this This court held that the claim survived. We reversed the district court and remanded the cause for further proceedings.

We discussed prior Prosser, our in holdings Sheneman and and said: parent duty provide has a support “[A] common law and maintenance

for his minor children and unchanged that such extends and remains who, becoming age, on is in such feeble mental condition physically mentally as support to be unable to maintain and itself.” 175 Kan. at 250. The argued executor that the demand was.based wholly on G.S. 1949, 59-2006 (1951 Supp.), provided which in part: support persons committed to or following law to shall be bound “The hospitals Spouses, . . . and chil- : patients at the state received as sum department welfare recover the of social . . . The state dren. maintenance, compensation care ($12) per for the week twelve dollars as any person hospital . . . from bound patient in a state treatment of person . . .” support . law to such and held that argument executor’s with the agree We did not common-law) as well as stat- duty, nonstatutory (or there is a an adult support incompetent utory parent duty, upon child. lunatics, “concerning in an act

The Kansas Legislature, idiots, imbeciles, distracted feeble- persons, insane persons, drunkards,” habitues, pro- and habitual drug minded persons, vided: support provide for and following law to “The relatives shall be bound hospitals]: husband for the wife and the wife [persons state admitted to children, husband, children their parent her for his or 247, § parents.” 33. L. ch. 1923, 39-233, act, repealed R.S.

That later codified as code. See L. probate revision of our upon complete however, (1939 Supp.), 59-2006 § ch. 280. G.S. 59-2006, amended, codified, [Corrick]) con- as K.S.A. (later incompetent for the of their liability tinued the following language: children in the support persons adjudged by to be following law to “The shall be bound . . . The state recover Spouses, parents, children.

insane: and maintenance, week, and applied on the care per to be sum of five dollars any person bound-by . hospital, from . . patient treatment in a state support person.” law to such persons from bound the state could recover The amount which the sum of increased 1965 to law by support patients § 1. ch. twelve dollars week. L. per whose persons the list of reduced following legislature ch. See L. hospitals. in state support patients it is to Thereafter, children are minor parents § 1. only spouses The current hospitals. in state support patients law to bound spouse only person’s a duty upon such imposes “[a] statute 59- Supp. K.S.A. 1989 who is a minor.” person of a parents hospitals in state charge patients rate 2006(a). The basic fixed at annually by least of social secretary and rehabilitation services, “as determined by application of generally acceptáble hospital accounting principles,” published and is in the Kansas Register. K.S.A. 1989 Supp. 59-2006b.

Thus, statute, under the incompetent adult children are not bound law to support such children if they are patients hand, in state hospitals. On the other if we our apply “common- Sheneman, Prosser, law” Glass, rule as expressed in are bound law to their incompetent adult children if home, the children are cared patients for at are in- private stitutions, or are anywhere in state except institutions. Such a ruling would create an inconsistency in our law and incon- gruous situation.

It is a matter of common knowledge the cost of medical and psychiatric care and treatment has risen to astronomical heights since the legislature fixed the amounts recoverable for patient care in state at hospitals five or even twelve dollars a reason, week. For that people carry most hospital and medical however, insurance. Even the most liberal coverage, is sometimes insufficient to cover catastrophic illnesses. Children are sometimes covered under their parents’ hospital and medical plans mi- past nority through that, their college years; normal beyond chil- dren may not be insured under parents’ health insurance their policies, but must have their own insurance.

Considering the realities present-day insurance practices and medical, costs, hospital, and surgical should be parent respon- sible for those expenses his or her adult child? Consider a parent of middle age and average circumstances whose adult child suddenly incompetent. becomes parent, Should the under the Kansas, “common law” of legally responsible for the care and treatment of that adult child? action,

Consider also parents, such as the plaintiffs in this who have the misfortune to give to a child who suffers gross deformities normal, and has no hope of ever becoming self- adult. supporting Should the parents of that child be legally re- sponsible for the continuing support and maintenance of that child after it reaches Or majority? should the State assume that re- sponsibility, once the child becomes an adult? The Leg- Kansas islature has precise faced that issue and has determined that longer responsible incompetent no once parents should child, a reaches hospital, majority. in state patient as follows: provides 77-109

K.S.A. law, judicial by statutory constitutional and “The law as modified common decisions, people, force and wants of the shall remain in and the conditions .” state . . . in aid the General Statutes of this of seen, was parent we the earliest common law As have under child. That incompetent for the care of an adult responsible by our earlier decisions common-law rule modified Then, legislature early in reinstated the law. statutory the sup- that would not be liable for common-law rule a parent care, an adult child who port, incompetent and maintenance of study, careful and in hospital. light was in a state After that we society, we conclude present economic realities our Legislature modify lead Kansas our should follow the that a longer we hold is no Accordingly, parent decisional law. incompetent for an adult child required by provide support law to then, case, only in this be had Recovery this state. in the child expectancy of time of life or until the child’s period period. whichever the shorter age majority, reaches the has must not been briefed Finally, we voice a concern and is certified parties scope questions outside unjust damage us. use award any This is the possible concern in birth case. by parents received Schwartz, 46 N.Y.2d in Becker plaintiffs We note are reported 386 N.E.2d 413 N.Y.S.2d denial after the up adoption have their put handicapped during separate life course of a their action but Comment, A Miscon- action. Wrongful Life: Introduction, L. 470 n.136 15 U.C.D. Rev. ceived Tort—An those extra caused expenses are to be on Damages based to be unjust would be for the the child’s disabilities. It escape such expenses. able recover concerns, others, through could be avoided many These States, 503 trust. In Robak v. United reversionary of a use part, part (N.D. 1980), Ill. revd F. Supp. aff'd Court for United States District 1981), Cir. (7th F.2d suggested reversionary Northern Illinois the establishment of a trust as payment the mechanism for the of an award for wrongful Note, 503 F. at 983. damages. Supp. Robak v. United Birth, States: A Precedent-Setting Damage Formula Wrongful for 58 Chi. Kent L. Rev. agreed money Both parties would placed money trust and disbursed needed to pay death,- for Upon the costs of the child’s care. the child’s the remainder, note, any, if would be returned to the defendant. We course, that the trust by agreement was created of the parties. Robak,

In the court based the award on the life expectancy of child, a healthy that the parents confident would thereby not receive a windfall because the use of reversionary trust. instances, In some this would be reasonable calculation. In circumstances, other an award based on a normal lifespan would be contrary medical knowledge. to In Curlender v. Bio-Science Laboratories, 106 Cal. App. 3d 165 Cal. Rptr. the court a wrongful allowed life action for a child born Tay with Sachs disease. court refused to use the actuarial life ex- pectancy years of 70 of a normal child because the evidence clearly showed that children afflicted Tay with Sachs cannot be expected to five longer years. survive than Such matters are properly left to sound discretion of the trial courts. In In summary: response Question No. we hold that the tort recognized In response Kansas. Question No. we hold that bemay recovered for those costs which would incurred not be but for the child’s dis- ability. costs may These be calculated on the basis of the child’s specific life expectancy or until child reaches the age of ma- jority, whichever is the period. .shorter

Six, J., concurring: I the majority opinion. concur-in The ma- however, jority, does go enough far in its effort to protect any damage unjust award from possible use. The majority reasons that the use funds is “outside the scope questions certified I disagree. judicially to us.” We should craft this new claim so that its require: (1) any characteristics sums recovered as damages by birth to be placed in child; reversionary trust for the use and benefit (2) child, with relationship fiduciary in a to stand damages. recoverable as all sums with a to account for into the claim for the two conditions We should mandate claim, authority we have the birth. If character. The trial court’s determine its authority we have the the mechanics of establishing upon be relied discretion on an indi- trust-fiduciary relationship concept the reversionary vidual case basis. Cruz, 698 P.2d 315 Idaho

The cites Blake majority case, Court, Cruz, Supreme the Idaho wrongful In consent, requirement eco- imposed parental without the use and benefit of the award be in trust for placed nomic at 259. child. 108 Idaho States, 503 F. Robak v. United

The also discusses majority rev’d in 658 F.2d 1980), part, part Ill. Supp. (N.D. aff'd Robak, the trial court decided that the 1981). Cir. In (7th total, $450,000 parent) to each for monetary ($900,000 award paid the child should not be and future maintenance reversionary in a trust placed in one sum. The award lump as were incurred. expenses with disbursements to be made Note, For Precedent-Setting Damage A Robak v. States: United Birth, L. Rev. 725 for 58 Chi. Kent mula For Wrongful to the reversionary trust solution endorsement of birth damage dilemma. period recovery the loss

We have determined that The majority. the child reaches at the time damages terminates time frame for the determination of period” represents “loss condition of the child parent compensation for result, resulted, negligence due to the or will which has defendant. reflects the in the instant action

A order pretrial review of and the claim plaintiff parents’ relationship between atypical The basis of the claim. provides child whose condition and Arche $10,000,000 Nicole of special claim John 6, 1987, April Andrea born daughter the care of their (parents) for as: is stated $1,000,000.00 benefits) earning capacity (loss of income

Loss of 400,000.00 supplies Medical Physical therapy, occupation therapy, speech therapy, and. therapy miscellaneous 1.750.000.00 therapy Attendant care and 2.300.000.00 Mother care 300.000.00 Rehabilitation services and care 1.000.000.00 1,500,000.00 Special education services Medical care 750.000.00 remodeling furnishings Home 250.000.00 supplies Orthotic and miscellaneous 250.000.00 equipment training Communication 500.000.00 Robak, As I read the trial suggested court the reversionary trust. 503 F. at 983. Supp. agreed that the award would placed in trust and funds corpus from the paid required for the child’s care. Upon death of the child the remainder the funds would be returned to the defendant. There may be cases where the wrongful birth will not live to reach majority.

The reversionary trust concept addresses three concerns that merit our consideration. first, It assures that the child will be second, for; adequately cared that the parents will be properly compensated for the additional birth expenses during third, the “loss period”; if the child does not survive the “loss period,” are compensated expenses Robak, they case, never In incurred. as in the instant the de- fendant is the United States. Any judgment will be paid by nation at large. many In other cases the may defendant be an individual health provider. care

We have denied a claim brought by child for wrongful life. Schimke, Bruggeman v. 245, 254, 239 Kan. 718 P.2d (1986). A wrongful jurisdiction life child in this cannot be reimbursed for future medical expenses that will be incurred as a result of a defendant’s The negligence. not recover for damage to his or her own If interest. do not recover for the claim, child’s future needs in the no one will. The juxtaposition between the substantive law of wrongful birth, tort, as a new and the award damage for that tort is unique. The claim is parents, for the parents, based on the special needs of the child. The case typical involving claim for future expense arising from personal injuries to a minor is controlled Pleasanton, Stone v. City 115 Kan. Pac. 303 A the minor child’s medical parent prospective cannot recover for care. The claim to the minor. belongs relationship plaintiff between an award anomalous brings any in a birth case the use of funds recovered within We determine the substantive case law of province. our the new torts in Kansas. If we are to tort of birth, should, as I feel we we can define its characteristics. J., joins foregoing concurring opinion.

McFarland,

Case Details

Case Name: Arche v. United States

Court Name: Supreme Court of Kansas

Date Published: Aug 31, 1990

Citation: 798 P.2d 477

Docket Number: 64,252

Court Abbreviation: Kan.