Chaffee v. Seslar
786 N.E.2d 705
Ind.
2003
Check Treatment

*1 First, that to make clear we wish CHAFFEE, M.D., Kenneth R. on Defendant's conviction

our reversal of Defendant-Appellant, evidence improperly admitted grounds ("[If not bar retrial does admitted, evidence, erroneously even that verdict, support jury

is sufficient SESLAR, Heather L. Plaintiff- jeopardy does not bar a retrial on double Appellee. charge.") the same No. 17S03-0204-CV-227. As to the three claims of advances, evidence Defendant sufficient Supreme Court of Indiana. relatively summary treatment we believe April15,2003. claim that sufficient. As to Defendant's present the State did not sufficient evi charged

dence that offense occurred Indiana, we find that there was evi living family

dence of record that the was alleged

in Indiana when the events com Defendant's

plained of occurred. As to prove that

claim that the State failed to 21 when the age

he was over the occurred, was testi

charged offense there known

mony at trial that one witness had "thirty-seven years." As to

Defendant hearsay

Defendant's claim A.C.'s

statements offered at trial via the testimo mother,

ny grandfather, of her her dubious," videotape "incredibly were consistency of state

we find the these application against

ments alone mandates rule," dubiogity "incredible which is

implicated only pres where a sole witness inherently contradictory testimony.

ents State,

Whedon

Conclusion transfer, we

Having previously granted proceeding

remand for a new trial or other opinion.

consistent with this

SHEPARD, C.J., DICKSON,

BOEHM, RUCKER, JJ., concur.

however, conceived, August and on Seslar 5, 1999, healthy baby. she delivered a 15, 2000, pursuant March to On statutes, malpractice Indiana's medical proposed complaint filed a with the Seslar Department alleging Indiana of Insurance pro- performance that Dr. Chaffee's of the seeking had been and cedure damages raising for the future Jr., Bauer, Murphy, Diana C. Edward L. through college, including the child LLP, Murphy, Oxberger & Miller Carson expenses. Dr. medical and educational IN, Appellant. for Wayne, Fort preliminary a de- Chaffee filed motion Grimm, Grimm, Au- & John C. Grimm termination, an requesting limiting order burn, IN, Appellee. a damages the amount of recoverable and raising determination that the costs of a Pinnick, Donald Pogue, Peter H. Jon M. pro- child a sterilization born after LLP, Kite, Sr., Pogue, B. & Car- Schultz are not as a matter of cedure mel, IN, Rudolph D. Fine James Johnson Dr. law. The trial court denied Chaffee's Johnson, LLP, Evansville, IN, Porter & motion but certified its order for interlocu- Amicus Defense Trial Counsel. Curiae tory appeal. appeal In this from the trial court rul TO ON PETITION TRANSFER ing, parties identify disagree re DICKSON, Justice. (1) garding two issues: whether the cost interlocutory appeal, In the defen this normal, healthy a child born ("Dr. dant, Chaffee"), Dr. Kenneth Chaffee procedure are an unsuccessful sterilization challenges permit the trial court's order (2) cognizable, and whether our recent de ("Ses- Heather ting plaintiff, Seslar Johnson, cision in Bader v.

lar"), damages including the to seek ex (Ind.2000) compels recognition penses her damages. such following born unsuccessful sterilization that, In plaintiffs alleged be- procedure. Appeals The af prior cause of the birth of a child with Seslar, firmed. 751 N.E.2d 773 Chaffee defects, they congenital had consulted transfer, granted (Ind.Ct.App.2001). We defendants, providers offering healthcare (Ind.2002) (table), and now N.E.2d 512 services, genetic counseling during sub- allegedly negli hold that for an pregnancy. plaintiffs The con- sequent procedure may gent sterilization not tended that the defendants' failure to com- subsequently clude the costs deprived municate adverse test results normal, healthy conceived opportunity them the to terminate relatively The facts in this case are un- in the birth pregnancy resulted multiple child whose birth defects led 26, 1998, Dr. complicated. On March The performed partial salpingectomy Chaffee her death four months after birth. Appellant plaintiffs' on Seslar. Br. of at 6. The claim was not that the defendant purpose resulting was to sterilize caused the abnormalities their that the defendant's Seslar, already chil- who had borne four dren, ability preg- so she could not become "caused them to lose the to termi- again. surgery, thereby nant After nate the avoid the 1%ndllergoing giving carrying Mexico, with associated Oregon, costs New and Wisconsin. See defects." a child with severe Bauer, birth Cal.App.2d Custodio v. sought plaintiffs The Bader Cal.Rptr. (Cal.Ct.App.1967); Lovelace damages including medical Mendez,

various Med. Ctr. v. 111 N.M. *3 during defects the to the birth attributable (N.M.1991); Haugen, P.2d 603 Zehr v. 318 1220, they did minority, id. at but child's 647, (1994); P.2d 1006 Marciniak Or. 871 rearing the general costs of not seek the 59, Lundborg, v. 153 Wis. 2d plaintiffs the to seek permitted child. We (1990). Generally, these courts find noting that their damages they sought, the that are damages using the differently no claims "should be treated cases, analysis negligence standard in and malpractice case." any than other medical analysis refuse to alter that because of with, not confronted nor did wereWe public policy permit considerations or to address, anticipated challenge a to the we by reduction for the benefits conferred rearing raising of and the ordinary costs child. child. approach, plaintiff the Under second the decision, Ap our of In an earlier may damages all that flow recover parents that of a child born peals held act, the but the calculation of to dam vasectomy were entitled damages includes consideration of the and its ages unexpected pregnancy for an offset benefits conferred on the corresponding expenses, but ex birth, parents by the child's This is con- was not physician noted that the pressly (Second) sistent with the Restatement of raising the child expenses for the of liable (1977), requires § 920 which that in Foy, v. Torts age majority. to the Garrison situations where the defendant's conduct 5, (Ind.Ct.App.1985). Gar plaintiff plaintiff's harmed the or the has in disapproval was cited without both rison "in property doing but so has conferred a Bader, 1220, v. 732 N.E.2d at and Cowe 683 (Ind.1991).1 special plain- to the the benefit interest of 630, Inc., Forum Group, harmed,

tiff that was the value of the in mitiga- benefit conferred is considered receiving has been considera- This issue damages, to the extent that this is tion jurisdictions. in There ble attention other permit- Id. The trier of fact is equitable." principal authority three lines of re- are past and award all ted to determine for medical garding resolution of actions by future incurred resulting preg- in an unwanted negligence rearing parent, including the the cost first, by In the followed a small nancy. child, that it the is also instructed jurisdictions, parents the of a group of benefits, make a deduction for the should negligently performed after a born services, love, example, including, procedure sterilization are entitled to re- joy, affection that will incurred in the child cover having receive virtue any offset for the benefits con- without Univ. Arizona Health Sci- presence of the child. This See ferred Court, 579, California, Ariz. Superior ences approach has been followed Ctr. brought rejecied claim on behalf of Cowe 1. Coweinvolved a child born as a result of the alleged negligence failing defendant's seeking damages a mother for his birth to protect profoundly mentally pa- retarded care, holding incapable providing for his nursing home from tient in the defendant's damages sought cognizable. were not that rape. Like Cowe did not involve a Id. at 635-36. for the costs of the child. We claim Beardsley v. (Tex.Civ.App.1973); (1988); v. Borrell Ochs 667 P.2d Wierdsma, (Wyo.1982). 650 P.2d (1982); i, 445 A.2d Conn. Clinic, 260 N.W.2d child, unplanned an Sherlock Stillwater Although raising (Minn.1977). As between the matter, 175-76 costly, we any child for that is approaches, we find the human life is first and second believe that all nevertheless This Court has presumptively invaluable. preferable. latter injury ... that "life cannot be held view holds A third Cowes,575 N.E.2d at 635. legal sense." after an unsuccessful children born regardless A of the cireumstances involving medical birth, a "harm" to the does not constitute are entitled *4 recovery for the permit so as to not child-rear childbearing expenses, but educating with costs associated of the vast expenses. This is the view ing as reach the same outcome We ap jurisdictions,2 and is the majority of jurisdictions, and hold that majority of Appeals in proach by taken our Court to the the value of a child's life ap follow this Courts pecuniary Garrison. bur- outweighs the associated variety policy identified Recoverable proach have dens as a matter of law. decisions, and child- support damages may of their include reasons ordinary bearing expenses, but not nature of the dam cluding speculative normal, educating disproportionate nature of the ages, the following alleg- healthy child conceived culpability, and a injury to the defendant's edly procedure. the birth of a to consider child refusal See, eg., compensable "damage." abe issue, In its of this difficult resolution Mullendore, 718, 416 So.2d 721 that a Supreme Boone v. Illinois Court wrote Garcia, been (Ala.1982); parent cannot be said to have "dam- Terrell v. 496 S.W.2d jurisdictions include: Alabama 2. Those other (1986)); 715 P.2d 1076 New 93, 102 Nev. Smith, N.H.237, Hampshire (Kingsburyv. Mullendore, 122 (Ala. (Boone v. 416 So.2d 718 (Gracia States, (1982)); 1982)); (M.A. Jersey v. v. 951 442 A.2d 1003 New Alaska United 317, Meiselman, N.J.Super. 220 531 A.2d (Wilbur (Alaska 1998)); v. P.2d 851 Arkansas (O'Toole Kerr, 239, (1987) (dicta); (1982)); New York v. Ark. 628 S.W.2d 568 1373 275 427, 143, (Flowers Greenberg, v. 64 N.Y.2d 488 N.Y.S.2d District of Columbia District (1985)); North Carolina 477 N.E.2d 445 Columbia, (D.C.1984)); Flori 478 A.2d 1073 172, (Jackson (Fassoulas (Fla. Ramey, Bumgardner, 347 v. 318 N.C. da v. 450 So.2d 822 (1986)); (Johnson v. Univ. S.E.2d 743 Ohio 1984)); (Atlanta Gyne Georgia Obstetrics & Cleveland, 49, Hosps. 44 St.3d 540 Abelson, 711, Ohio cology Group Ga. v. 260 398 (Oh.1989)); (Wofford Oklahoma (1990); (Cockrum N.E.2d 1370 S.E.2d 557 Illinois v. Davis, (Okla.1988)); Pennsyl 193, 168, v. 764 P.2d 161 Baumgartner, Ill.Dec. 95 Ill.2d 69 (Butler Rolling Hosp., vania v. Hill 400 Pa.Su (1983), denied, 385 cert. 464 U.S. 141, (1990)); per. Rhode Is 582 A.2d 1384 (1983)); 78 LEd.2d 139 846, 149, 104 S.Ct. (Iowa (Emerson (Nanke Magendantz, v. 689 A.2d 409 Napier, v. 346 N.W.2d 520 land Iowa Gore, (Smith (R.I.1997)); v. 728 Elkins, Tennessee 1984)); (Johnston v. 241 Kan. Kansas (Tenn.1987)); (Terrell 407, (1987)); (Schork Kentucky 738 Texas v. 736 P.2d 935 S.W.2d Garcia, Huber, (Tex.Civ.App.1973)); (Ky.1983)); Louisi 496 S.W.2d 124 v. 648 S.W.2d 861 Nielson, (C.S. (Utah (Pitre Hosp., Utah v. 767 P.2d 504 Opelousas v. Gen. 530 So.2d ana Johnson, 1988)); (Miller (La.1988)); (Macomber Virginia Va. v. 231 Maine v. Dill 1151 177, (1986)); Washington 343 S.E.2d 301 man, (Me.1986)); Michigan 505 A.2d 810 624, (Rouse Aasheim, 411, Wesley, Mich.App. 494 (McKernan v. 196 Wash.2d 687 v. Coats, (James (1984)); (1992)); Virginia (Girdley West G. v. v. P.2d 850 N.W.2d Missouri (Mo.1992)); (Hit 825 S.W.2d 295 Nebraska S.E.2d 406, 175 W.Va. Caserta, Wierdsma, Adam, (1985)); Wyoming (Beardsley v. v. 246 Neb. zemann Robinson, (Szekeres (1994)); (Wyo.1982)). 650 P.2d Nevada decided, of a nor At the time Bader was at the birth and least aged" by mal, twenty-two that "it is a matter states and the healthy District Co universally-shared emotion and senti had a claim recognized wrongful lumbia birth, intangible ... 'benefits' of ment that the while at eight least states had outweigh any far of the mere parenthood barred such claims either statute or monetary burdens involved." Cockrum judicial Johnson, decision. See Bader v. 193, 199, Ill. 95 Ill.2d 69 Dec. (Ind.Ct.App. Baumgartner, 1122-23 (1988) (quoting N.E.2d 1997) (vacated 7382N.E.2d Brown, 388 Pub. Health Trust v. So.2d jurisdictions forth setting those allow (Fla. App.1980)). agree. 1085-86 We ing disallowing claim for birth). might expect, juris As one those Conclusion recognizing dictions a tort of wrongful hold that the costs involved rais- We birth not only differed on the elements of normal, ing and the tort but also on the recoverable dam subsequent allegedly negli- to an conceived ages. example, For courts some allowed cogni- not gent sterilization are recovery for extraordinary medical and re zable as an action *5 expenses lated associated with a child's trial negligence. The order of the court disability, while others did not. See id. at prelim- denying the defendant's motion permitted 1125. At least one state that reversed, inary determination is and this rule, recovery, applied such a benefits proceedings is remanded for further cause which offset the recovery opinion. with this consistent the value of the benefit that re parents. (citing ceive as Id. Euisbrenner v. SHEPARD,C.J., BOEHM,JJ., Stanley, Mich.App. 308 N.W.2d concur. (1981), abrogated by Taylor v. Kura SULLIVAN, J., dissenting, adopt would pati, Mich.App. (Second) apply Restatement of Torts (Second) (1999)); see also Restatement § 920 in this case. (1977). Too, § of Torts several states recognizing wrongful the tort of birth dif RUCKER, J., separate dissents with recovery fered over whether to allow opinion. damages. emotional distress RUCKER, Justice, dissenting. By treating plaintiffs' claim the no dif- In Bader v. Johnson this court was ferently any than other claim of medical upon to called determine whether Indiana negligence, engage this court declined to the tort recognized "wrongful birth." foregoing Today's the debate. decision declared, We course, debate, changes enters the "[llabeling [parents'] cause of action as principle retreats from the we announced 'wrongful analy- birth' nothing adds in Bader. sis, confusion, inspires implies acknowledge I a distinction between adopted court has a new tort." Id. at In Bader and the case before us. Bader Thus, 1216. we decided to treat a so- alleged tort of recognize we declined called birth cause of action the analyzed any "wrongful birth" and thus negli- same as other claim for medical so, principles claim under of medi- genee. doing In we traditional determined contrast, malpractice. By cal more than a existing law controlled the nature and ex- jurisdiction ago tent of available decade this determined damages. I and would "wrongful category. Therefore dissent labeled of action that the cause trial court. judgment affirm the Indiana.3 See Gar pregnancy" existed (Ind.Ct.App. N.E.2d Foy, rison v.

1985). declaring, a cause "[sluch Although any oth indistinguishable from

of action is action," id. at

er medical considerations, the court

citing policy "the costs of rear concluded

nonetheless ster unsuccessful

ing a child born TUCKER, Defendant-Appellant, Ronie may not be recovered ilization provider." care the health Indiana, Plaintiff-Appellee. STATE alleges case the claim this Although opposed as to a pregnancy" "wrongful No. 27S02-0206-PC-306. majority rationale the "wrongful birth" the Supreme of Indiana. is to limit the uses true, to both. It is as equally applicable April 2003. out, in Bader this court majority points and thus did not confronted with was not anticipated challenge to the

address "a

ordinary costs of Nonetheless, op. at we were Slip

child." 3. proved negligence that if the

clear *6 damages proxi- to they

then were "entitled the tortfeasor's breach of

mately caused Bader,

duty." majority appears

By today's decision view that an action

to have endorsed the Indiana, wrongful pregnancy exists policy decided that for reasons has expenses are not recoverable

child-rearing an action. Because I see no

under such ap- I would depart

reason to from analysis

ply here the same used other malpractice cases. If Seslar to

proves negligence, then she is "entitled

damages proximately caused the tort- duty." expense Id. The

feasor's breach a child falls in this "wrongful generally Inc., 3. birth" refers The label Group, to terminate it. Cowe Forum brought by parentis of a child claims The label "wrongful alleging pregnancy" refers to claims for born with birth defects that due to brought by alleging negligent testing they medical advice or were conception unexpected child precluded making of an result an informed decision procedures potentially hand- ed from about whether conceive child, or, contraceptive icapped pregnancy, a defective device. in the event of