Dumer v. St. Michael's Hospital

both undisputed affirm on this We record.24 right judgment to enter such circuit and its court judgment. Judgment

By affirmed. the Court. — Appellants, others, litem, ad Dumer, by Guardian Hospital others, Respondents. Michael’s v. St. September 30, September 3, Argued (1974). No. 1975. Decided 372.) (Also reported N. in 233 W. Packing Kottwitz, supra, Kress Co. v. See: footnote holding: merely page a matter of this court “‘As means law’ finding reasonably other factual could be drawn from the evidentiary facts.” appellants Gerald J. For the there was a brief Milwaukee, Bloch, Phillips, Bloch & all of and Hoffman argument by J. and oral Gerald Bloch. respondent Hospital For the there was St. Michael’s by Dunphy, McNulty, Kluwin, Hankin & at- brief torneys, Milwaukee, counsel, and Michael J. of all of Pfau argument by Pfau; respondents and oral Mr. for the Physicians Emergency Corporation, Service Eleanor Re- gan, personal representative Joseph of the of estate M.D., Regan, Mercury Company, and Paul St. Insurance by Arnold, Murray O’Neill, attorneys, there was brief & counsel, Robert C. Milwaukee, and Watson of all of and argument by oral Mr. Watson. J.

Beilfuss, complaint attempts The amended to set by forth two of causes action. The one is first guardian ad litem Tanya on behalf infant minor wrongful by for (German life caused measles) rubella during her suffered mother the first trimester of pregnancy. Tanya her mother’s The infant was born deformities, with mental retardation and anomalies be- her mother had rubella The cause of parents, second action is Ritchie Dumer med- future recovery past Dumer, and Carol expenses because hospital supportive treatment ical Tanya’s condition. allegations complaint are in substance follows: Dumer 18, 1972, plaintiff-appellant Carol

On March sought body emer- in the upper for an rash treatment Hos- gency defendant-respondent Michael’s room of St. thought attending her pital. she nurses She advised suggestion to repeated condition that was rubella employee Regan, M.D., decedent, Joseph an defendants’ Corporation. defendant-Physicians Emergency Service negligently diagnosed He condition Carol Dumer’s allergic time, discharged At this an reaction and her. pregnant one month. Carol Dumer had about been alleged It either the she told nurses pregnant, doctor that nor that knew she she was she was. Tanya 19, 1972, plaintiff-appellant

On November syndromeshe Dumer with a “rubella suffers was bom cataracts, permanent physical retardation, and mental and heart malfunctions. allege plaintiffs as a result

diagnosis by the and their failure to advise defendants possible Carol Dumer on the effects possibility Tanya abortion, and of the fetus Dumer aborted, personal injury her and to fi- injury parents. apparently nancial to her This is an allegation would, fact, that an abortion in have been sought. alleges hospital

The that the both and the following respects: doctor were in the Failing diagnose “A. presence to the of mea- German Dumer; in Carol sles Failing “B. inquiry to make reasonable to the possibility presence of German in measles Carol Dumer; or as to whether pregnant; she was presence the to determine Failing to take tests “C. despite presence the Dumer in Carol measles of German of clinical and symptoms; epidemiologic of the effect Failing Dumer advise Carol “D. to and child on the unborn have measles German availability of failing therapeutic of her the advise an abortion.” against of action St. will consider

We first pre- plaintiff Dumer Hospital. The Carol Michael’s emergency. patient room herself as sented body upper hospital. complained of the Dumer Mrs. might thought German and she have rash stated she then who interviewed nurses measles. She was allegations negligence, all in Regan. Dr. called nonfeasance, personnel hospital the form of are diagnose rubella, failed to failed the condition as tests, inquire perform pregnancy, clinical failed upon and failed an to advise the effects availability unborn of abortion. advise allegations, the hos Under factual we conclude these pital duty did not breach owed Carol Dumer. Hospital employees, attendants, or either nurses are legally competent legally required nor to make a diagnosis1 supervision medical without direction and physician. hospital employees, licensed under the alleged here, ordinary circumstances exercised care and performed duty patient thus owed ad — patient mitted and called a doctor.2 There is no allegation hospital any way in carry failed to out the doctor’s or orders directions failed to him assist any attendants, manner. Nurses and under these (1) (1) (a), See: 448.02 Secs. 445.01 Stats. 2 Although directly point, following cases do consider duty hospital employees: Hospital Schuster v. St. Vincent 135, (1969), 421; 45 Wis. 2d 172 N. 2dW. Cramer v. Theda Clark Hospital Memorial 427; Wis. 2d 172 N. 2dW. Regan (1973), Wills v. 58 Wis. 2d 206 N. W. 2d 398. diagnosis temporary facts, required are to make The patient of treatment. nor advise the to a course as duty any Dumer hospital owed Carol did not breach correctly Tanya. infant-plaintiff trial court nor The dismissing judgment sustained the demurrer and ordered complaint Hospital. to the defendant Michael’s St. through Tanya, plaintff In the first of action the guardian alleges litem, her ad á of the result negligence “not of the defendants was aborted” she wrongful life; “was allowed to to a that she was be born disabled, crippled; born that her retarded and ability enjoy impaired.” permanently life has been alleged negligence

There is no assertion that congenital plain- the defendants caused defects of the Tanya. by tiff The her defects were caused the rubella mother contracted first trimester pregnancy. The mother had rubella before she came hospital or upon the doctor saw its effects nothing unborn child were irreversible. There is defendants did or could have done to alter the effects upon the unborn child. The claim that if the diagnosed properly doctor would have her mother’s condi- tion as rubella and her proba- informed (or bilities possibilities) defects, of birth have decided an have abortion3 which would have prevented her birth. allegations effect child, these made

through guardian litem, her ad claim that is to if de- fendants had been she would not have been born and that because she was born with eon- “therapeutic uses the term abortion.” A ther apeutic abortion, generally it, as we understand the termi means pregnancy nation of a that was a serious threat health life of the mother. Here there threat to the health or life contemplated plaintiffs the mother. The abortion might “eugenic better be described as a prevent abortion” intended to birth a defective child. her to

genital are liable defendants defects the damages. (1974), recently v. in Stroh Slawek

This court has recognize 9, 295, 2d refused 2d 215 N. W. 62 Wis. wrongful birth of action as enforceable quite wrongful SlaweJc, was In the factual situation life. infant-plaintiff born was In that different. case illegitimate her and sued born a normal child. was She lack embarrassment, putative humiliation father for standing the infant was Here she would endure. social con not normal child a child with serious born a but genital parents the doctor not her defects. sues but She public her mother. who examined and advised While policy forth in are based set SlaweJc considerations here, type with on the of facts as we are concerned same weight reach.4 do in the conclusion we have some major infant-plaintiff obstacle to the claim damages. Cosgrove v. is a determination of In Gleitman (1967), 22, 689, 49 Atl. 2d N. J. 227 the New analogous There, here, court was faced with an claim. plaintiff the minor born with was birth defects due They her mother’s consulted the defendant doctor who advised the mother was she pregnant. two months She told the doctor had re- she cently measles; had German the doctor told her this upon have effect child to Both be born. parents There, minor child and the sued doctor. too, the claim made that because of the advice of opportunity doctor the were denied the embryonic terminate the life of the state. Both upon of action causes were dismissed a motion for nonsuit. 4 Pinkney Pinkney (Fla. 1967), Zepeda v. 52; 198 So. 2d v.

Zepeda (1963), App. 849; Ill. 2d 190 N. E. 2d v. Williams State N. Y. N. E. 2d 343. Gleitman, supra, in consider- majority opinion ing page 28: plaintiff, of the minor stated at the claim say required plaintiff “The infant is therefore but that he should been born without defects have language of he In should not been born at all. have defendants, says: negligence of tort he would law he but for the impaired been with an not have born suffer body. words, In other he the conduct claims obtaining an prevented defendants from his mother existence, abortion which would have terminated his ‘wrongful.’ very that his life is “The normal measure in tort actions compensatory. Damages by comparing are measured plaintiff in, condition would have been had the defend- negligent, plaintiff’s impaired ants not been tion with condi- negligence. plaintiff as a result of the The infant would have us measure the life but difference between his against nonexistence, with defects it of the utter void impossible is to make such a determination. This weigh Court impairments cannot the of life value with against asserting By of life nonexistence itself. he born, should plaintiff not have been the infant makes logically impossible alleged for a court to measure his damages impossibility making because of the of the com- parison required by compensatory remedies.” agree

We with the damages New court. The claimed by any recognized cannot be measured standards by our law.5

We complaint conclude Tanya of the infant does against not state a cause of action the defendants. The trial judgment court’s order and as to this cause of action must be affirmed.

The of parents action “extensive hospital medical expenses and because of required by Tanya treatment Dumer [and] will continue to incur hospital, additional extensive med- authority contrary. There is Gleitman, See the dissent in supra, Wrongful Life, (1970), 66 Minn. L. Rev. Tanya Dumer’s expenses because supportive

ical and considerations. presents different condition” were in this case congenital defects described The part of on the or nonaction action caused the result here were The defects the defendant-doctor. during There is pregnancy. effects Dumer plaintiff time Carol that at no claim anything there was presented for an examination herself the effects minimize do to reverse or the doctor could rubella.

Recently Protective Co. in Rieck v. Medical of an 2d N. 64 Wis. 219 W. failing to child” an obstetrician for “unwanted sued stages during early diagnose pregnancy its mother’s during time an abortion because could obtain she unplanned or unwanted The healthy. par the Bieck normal and Case was born raising probable the child ents sued for the costs dependency. Upon demurrer court dis this plaintiffs-parents. missed the pages stated at 517-519: We Recovery, impose “. . . or determination impose liability, public policy involves considerations. complete direct, Even where chain of causation recovery may grounds public sometimes be denied on policy (1) injury because: too from the remote negligence; (2) injury wholly pro- or the too out portion culpability negligent the tort-feasor; to the (3) retrospect highly or appears in extraordinary too negligence brought that the harm; should have about the (4) recovery or unreasonable a cians and place because allowance would too (in us, upon physi- the burden case before obstetricians) ; (5) or because allowance of recovery lent likely open way would be to too the for fraudu- claims, (6) recovery or allowance of would enter a just field that no stopping has sensible or point. . . . hesitancy “. .. concluding have no We in that to hold allegations the of this constitute a cause

775 way open the action for recoverable has fraudulent and would enter a field that claims just stopping point.” or sensible distinguished Rieck from at must the case hand be sought parents to the because there entire recover expense raising healthy normal, a claimed un- but during dependency. wanted child Here only congenital expense sue for the occasioned defects.

Assuming allegations the factual true we be considering complaint, must when a demurrer to a we diag- negligent conclude the defendant-doctor in not was nosing plaintiff-mother’s condition as rubella. We conclude, stage, also at least at the demurrer that he duty inquire had a pregnant toas whether she was and, was, if she probable to inform her of the effects upon including fetus, its irreversible nature. plaintiffs also claim the doctor

failing availability her of the advise of an abortion. legal duty We conclude the doctor did not a have to so plaintiff-mother alleged advise under facts this complaint. question There is no life or health of the mother plaintiff-mother here. Whether the should seek and to an submit abortion inis first instance moral plaintiffs-parents decision of the uninfluenced question legal availability doctor. of an abortion, particularly question,6 the time in called legal opinion, one, not a medical which the doctor required, perhaps competent, give. was not even prior The incidents in this case were decision Supreme United States in Roe Court v. Wade S.U. 113, Sup. 705, 147, rehearing denied, Ct. 35 L. Ed. 410 U. S. 959, Sup. Ct. 35 L. Ed. 2d the court wherein ruled unqualified right legal had woman an to a abortion first trimester of trial, the doctor conclude we

Subject proof to plaintiff- diagnosing negligent the rubella in not was If suffering inquiring to and wife was trial to have been at the is found the doctor duty to inform he had a respects, follows in those complete To rubella. plaintiff-mother of the effects convince plaintiffs then must a of action the sought they and submitted have fact that trier of and the abortion to wife an abortion legally available them.7 finding they to all of these

If obtain a favorable damages they they have then facts are entitled deformity and defects because of the sustained expenses child. Their must be limited those necessarily reasonably suffered, and which have certainty medical in the will to a reasonable suffer medical, hospital future reason of the additional supportive expense deformities of the occasioned normal, healthy child child. as contrasted Co., public supra, policy In Rieck v. Medical Protective liability considerations as to limitations were invoked stage. at the demurrer Here those considerations must findings await the fact.

By the part, part. Court. —Affirmed in reversed (dissenting). W. doctor Where Hansen, Robert J. diagnose pregnant patient fails German- measles in a defect, and the born with birth the doctor malpractice (1) child, (2) liable failing patient pregnant to inform such that she was possibility and that there was an increased that the child carrying might she was born be with a birth defect due having to her German measles? claim is that recognized A similar cause of action was in Jacobs v. Theimer (Tex. 1976), rejected Gleitman, supra. 519 S. W. diagnose pregnant pa- deprived the doctor’s failure to opportunity tient of the the to terminate brought The doctor in an on behalf liable action damages child, majority holds, the the because any recognized by claimed cannot be measured standards by cites, holding, majority quotes our In law. so Jersey case,1 Jersey follows a re- New the New court jecting recovery diag- such child where doctor had allegedly nosed the German failed to inform measles but patient that her child could be defective because Jersey such German measles. The New court held: “. plaintiff . . The infant would have us measure against the difference between his life with defects nonexistence, utter impossible void of but it make weigh such a determination. This Court cannot the value impairments against of life with life the nonexistence of By asserting born, itself. that he should not have been plaintiff logically infant impossible it makes alleged court damages to measure bis because impossibility making comparison required com- ,”2 pensatory remedies. . . majority agree Jersey states: “We with the New court.” However, So does this writer. where the ma- goes jority exactly halfway around the track with the Jersey court, New go way. the writer would all the For Jersey the New upheld court also demurrer to the cause parents, action of the majority which our court refuses Rejecting to do. injury by the claim of parents, Jersey New court held that such cause also involved damages cognizable by law, stating: “. . In. order to determine their parents’] com- [the pensatory damages a court would have to evaluate the denial to them of intangible, unmeasurable, and com- plex human benefits motherhood and fatherhood and Cosgrove Gleitman v. J.N. 227 Atl. 2d 689. page Id. at money alleged

weigh against emotional these weighing injuries. proposed is similar Such perform for impossible to which have found we say should their child plaintiff. infant When the a court born, impossible for make not have been being damages father the mother and to measure their of a child.”3 defective reasoning rationale writer follow immeasurability of the New court as brought the child on in the action behalf both action, brought by more than parents. But and the measurability damages parents’ cause of is involved. oppor- denial of their action is based on the claimed tunity he of their child while to terminate the life exactly embryo. policy involved, an as Public Jersey court, Gleitman, in New said: assumption “. . . Even under our that an abortion making participants could have been obtained without its sanctions, policy liable to criminal substantial reasons prevent allowing this Court from tort for the opportunity embryonic denial of the to take an life. “It is to the human to basic condition seek life and heavily Jeffrey hold on to it however If burdened. could have been asked as to whether his life should be snuffed gestation course, out before his full term of could run its our felt intuition of human nature tells us he would surely against almost choose life with defects no life pages 29, College Id. at Long See also: Stewart v. Island Hospital (1968), 432, Supp. 41, judgment 58 Misc. 2d 296 N. Y. 2d (1970), App. 531, Supp. modified 502, 2d Div. 313 N. Y. 2d 695, Supp. affirmed as modified Y. 2d N. 332 N. Y. 2d holding: 283 N. E. 2d the New York court “. . . there remedy having is no handicap, been born under a whether physical psychological, being when the alternative to born in handicapped a put condition is not to have been bom at all. To plaintiff way, remedy against a it another has a defendant consign plaintiff whose offense is that he failed to to oblivion. system of action jurisprudence.” Such cause is alien our to (58 page 436.) Misc. living for the dead hope, but there is at all. ‘For . . . there is none.’ Theocritus. society. A court right in our to life is inalienable “The embryo from prevent an say should cannot what defects to opportunity being that denial allowed life such embryo in child of a defective terminate existence Examples of famous support for action. can a cause great despite physical persons had achievement who have readily many can think mind, come of us defects of perfect examples need not be to home. A child close life.”4 have worthwhile approach conceptual It is difficult seé how this right life on to choose the New court as accepted part of as cause the child born can be accepted to the cause action of the child and parents. particularly true of action of This is injuries state, parents’ this where a cause action from child held to derivative sustained has been be reasoning child,5 the cause of action of the our court parent by operation that “. . . of law a since the takes action, part it he take child’s cause must subject any the child leaves and that defenses might urged against which ‘in whom the be ”6 action, law, whole for the but vest.’ Jersey court, Case, What New the Gleitman public policy require of said the that considerations parents, denial of the cause of action of the here as there, squares holding deny- with the recent of court this ing recovery where a doctor had failed pregnancy parents’ determine the fact of and the claim they somewhere, have, that would somehow and timely secured an abortion if had informed been 4 page Id. at 30. 5 Laundry 376, (1925), Callies v. Reliance Co. 188 Wis. 206 N. 198.W. 6 (1972), Schwartz 286, 290, v. Milwaukee 54 2dWis. 195 N. W. summarizing holding. 2d the earlier Callies five listed this court pregnancy.7 of There

of the fact recovery on public policy for denial of considerations grounds [a]ny of these policy,8 “. . one public of and . deny public policy be sufficient could considerations recoverability.”9 than one more The writer finds alle- applicable to the here listed five considerations as injury gations including (1) is complaint, the of this culpability wholly proportion too to the out diagnosis; (2) doctor who measles missed German recovery place unreasonable allowance of would too re- family physicians; (3) upon allowance burden covery likely way open for fraudulent would be too claims; recovery (4) here enters and allowance of point. stopping field that to the has no As sensible suggestion public policy involved, the that considerations only applies Bieck and to be limited to cases where Quite rejected. child is normal unwanted be but must apart from the fact it too much of a smacks approach, Hitlerian fact “elimination of the unfit” public policy is that applied in Rieck considerations go and consequences Gleitman to the of an allowance of recovery go beyond measurability far the matter of or particular even amount of claimed in a de- nial-of-opportunity~to-abort case. 7 Rieck v. Medical Protective Co. Wis. N. 2dW. 242. pages 517, 518, holding: 8 Id. at this court “Even where complete direct, recovery may chain causation is sometimes grounds public policy be (1) injury denied on because: negligence; (2) injury too wholly remote from the or is too proportion culpability out tort-feasor; (3) retrospect appears highly or extraordinary too negligence brought harm; (4) should have about or because recovery place allowance (in too unreasonable a burden us, upon physicians before obstetricians); case (5) or be recovery likely open cause allowance of way would be too claims; (6) recovery

for fraudulent allowance of would enter just stopping point. a field that has no sensible or . . .” page Id. at complaint in the Additionally, it noted that to be is they alleged that, expressly if parents in Rieck the they would pregnancy, had of the mother’s been advised sought an abortion have without hesitation obtained us, nowhere before unwanted child. In case they allege complaint would parents in the do what have done in the event that had been advised possibility of pregnancy mother’s and of the increased being a child born due to the German with birth defects complaint in the measles Nowhere allegation parents there an here is affirmative preg- would if told have obtained an abortion about nancy Thus, and the in the case before German measles. establishing us, sequence .“. . unbroken of events required proximate . . cause-in-fact .” Rieck for cau- sation,10 present. proximate Even had such alleged, permit been in Rieck our court held that re- covery way open “. . . would for fraudulent claims just enter a field that has sensible stopping point.”11 That door to fraudulent claims open wide here where with de- was born birth was, Rieck, born, fects as where the child was normal but nonetheless unwanted.

Adding only requirement alleging in the sequence (establishing an unbroken of events complete causation) direct and chain of was not here met, reasoning the writer would follow the and concur reached Supreme result the New Court concluded, which in Gleitman, parents’ as to the claim of cause of action: “Though sympathize we with the unfortunate situation in which themselves, firmly these find we be- right greater lieve the of their child to live is than precludes right their not to endure emotional and finan- injury.

cial holdWe therefore that the second and third page Id. at 517. page Id. at cause parents’ claim of counts action] [the com- conduct because the are actionable damages damages give plained of, true, if rise even does alleged cognizable law; at and even if such cognizable, precluded were claim for them would be

by countervailing pre- public policy supporting ciousness of human life.”12 agreeing reasoning concurring the

Thus with the by cited, result reached court in the the New case quoted part majority, and in followed the writer judgment would affirm the trial entered court case, this both as the cause action on behalf of brought by the child and as to the of action parents. child’s Department Respondent, v.

Watkins, Industry, Appellant: Labor & Relations, Human Herzbrun others, Defendants. Argued September (1974). September 30, No. 28 1975. Decided 1975.

(Also reported 360.) in 233 N. W. 2d Cosgrove, supra, page v. Gleitman footnote

Case Details

Case Name: Dumer v. St. Michael's Hospital

Court Name: Wisconsin Supreme Court

Date Published: Sep 30, 1975

Citation: 233 N.W.2d 372

Docket Number: 57 (1974)

Court Abbreviation: Wis.