*1 haustion of and is tied state entitlements FLOWERS, Appellant, law. The nub of unemployment
the state Geraldine her initial petitioner’s claim is that after District, disqualification by denial COLUMBIA, Appellee. OF DISTRICT penalty. in a FSC benefits resulted double We affirm. No. 82-133. voluntarily employ- Petitioner left her Appeals. Court of District of Columbia ment in care for her infirm the District to understandable, did Though mother. Argued July 1983. leaving thereby good cause for July Decided work, as- appropriately and she was disqualification sessed a seven week § 46-lll(a) (1981);
benefits. D.C.Code see Employ-
Hockaday Department v. D.C. Services, Petition- ment determination,
er challenge did not but
instead claimed that she was entitled to program for
reimbursement under the FSC disagree.
those forfeited We benefits. law,
Under the the terms FSC apply
conditions of the law state’s claims
for these supplemental benefits. Note See § §
following 602(d)(2). 3304 at U.S.C.
Therefore, petitioner was partially who dis
qualified under disqualified District law is
and statutorily ineligible to receive FSC §
benefits. 46-108(g)(8)(G) See D.C.Code (Supp.1983); Steinberg v. Board Re cf.
view,
34 Pa.Cmwlth.
(1978). The disqualification may only FSC
be purged by at four least consecutive
weeks employment subsequent
filing of her initial District claim. D.C.
Code 46-108(g)(8)(G). Petitioner does
not now claim that she has been reem
ployed. Accordingly, appealed order
from is
Affirmed. *2 facts, agreed statement
cording to appellant’s third after the birth of her of two of appellant and the father they could children determined Therefore, on children. afford additional May laparo- appellant underwent prevent her from scopic cauterization to becoming pregnant in the future. This sur- performed Berke- gery was Dr. Marsha Peters, by Dr. Richard both of ley, assisted agents of the District. whom were 1980, appellant filed suit October under the against the District of Columbia superior, alleging principle respondeat negli- had that the tubal cauterization been proximate result gently performed and as a given pregnant she had become healthy baby on 1980. to a June com- Appellant sought in the trial court the District of Columbia pensation from expenses, pain her for: her medical wages, all incurred suffering, and her lost during pregnancy; her after the birth wages —the she lost Barry Gottfried, D.C., Washington, H. work; until she could return her child for appellant. properly performed tubal —the cost of a Gorman, Counsel, Leo Corp. N. Asst. future; might undergo in the ligation she Washington, D.C., Judith W. with whom and, Rogers, D.C., Corp. Counsel, Washington, at filed, the time the brief was and Charles baby healthy her —all costs Reischel, Counsel, L. Deputy Corp. Wash- age of 18. the child reached until
ington, D.C.,
brief,
appel-
were on the
appellant
court ruled that
The trial
lee.
District, as a
claim that the
pursue her
Jr.,
III,
Ellis,
John Lewis Smith
T.
Lee
must
negligence,
of its doctors’
result
Holik,
Eshelman,
Jeffrey S.
and Andrew 0.
Otherwise,
rearing her child.
the costs
Washington, D.C., filed a brief for amicus
claims
appellant’s other
permitted
court
curiae, The Medical Society of the District
jury and
presented
for relief to be
of Columbia.
appellant’s
a verdict
jury returned
$11,000.
the amount of
favor in
FERREN,
Judge,
Before
Associate
trial
challenges
Appellant
KERN,*
Judges,
PAIR
Re
Associate
her claim for
ruling
limine that
court’s
tired.
might
from the doctors
child-rearing costs
KERN,
Judge,
Associate
Retired:
on
Appellant contends
pursued.
not be
(Brief
4),
at
appeal
This appeal
comes to the
an
Agreed
perform
negligently failed
Statement in lieu of the Record on
when
cauterization, Mar-
Appeal
Dr.
tubal
pursuant
10(k).
effective
Ac-
DCCARule
*
Retired,
May
Judge
Judge,
on
Judge
Kern was
Associate
of the court
Associate
argument.
changed
the time of
His status
plain-
control of
Berkeley
duty
sha
size would be furthered
breached
by subjecting
lia-
Berkeley’s
physicians to full civil
[appellant].
tiff
Dr.
Flowers
bility
raising
for the
un-
cost of
foreseeably resulted
culpable conduct
planned child.
the birth ... and meant
required
the costs of
would be
to bear
public policy
appellant
consideration
*3
educating a
maintaining, supporting, and
urges upon
as a
imposing
us
rationale for
she had decided
fourth child whom
rearing appel-
the costs of
the District
afford_
Judge Doyle’s deci-
could not
unplanned
impels
lant’s
us
note the
unjustifiably departed from a funda-
sion
Judge
by
comment
Oberdorfer of the feder-
principal
mental
of District of Columbia
ruling upon
al
in
simi-
district court here
a
jury
law: it is the function of a
to decide
damages:
lar claim for
compensate
plaintiff
whether to
a
something inherently
distaste
[T]here
injuries that result from a tortfeasor’s
holding
ful
a
that a
about
child is not
negligence.
it,
worth what it costs to raise
and some
thing seemingly unjust
imposing
(Brief
about
4-5):
Appellant
urges
further
at
plied, appellant
public policy
this
to award the cost of rearing healthy
which established tort law
for all
raising
[T]riers-of-fact
In addition to
for a
tortfeasor’s
[C]ases
should not be treated
should
case as a
[*]
wide
injuries, including
an
involving negligent sterilizations
[*]
unplanned
permitted
range
reason for
negligence.
also
typical
urging
have awarded
[*]
suggests
injuries
negligence
to award
child.
differently:
this court to treat
permitting
[*]
the net costs of
should be
(Brief
caused
[*]
damages
ease to
[*]
child matter of law that the child “is worth the
by
jury
6)
ap-
judge
the financial cost of
sen not to have more children
“it seems
the entire cost of
physician, creating in the words of one
We
contention
to minimize
turn now
nothing
case
more
in effect
Baum
fendant is entitled.
[Cockrum
case,
typical
malpractice
than a
medical
Ill.2d
69 Ill.Dec.
gartner, 95
application
requiring merely the
of stan
(em
(1983)
N.E.2d
If we
principles
dard
of tort law.3
were
added).]
phasis
accept appellant’s urging then the trial
argument
unpersuaded by
areWe
required
apply
would have been
that the benefit rule would have
case
the well established
instant
both
benefits accru-
consider
the economic
conse
“benefit rule” and the “avoidable
offsetting
plaintiff as
cost of
ing to the
quences” doctrine.
rearing the
child. We are deal-
unwanted
The benefit rule states:
children,
it
widgets;
ing here with
the defendant’s tortious conduct
When
assume that the trier-of-fact
unrealistic to
has
... and
caused harm
*4
parse
could
the dollars and cents benefits
doing
special
in so
has conferred a
bene-
accruing
healthy
parents
to
a
child
fit to the
of the
that
interest
easily
the benefits less
and
described but
harmed,
the
was
the value of
benefit
deeply
by
parents
more
felt
the
as a result
mitigation
is considered in
of
conferred
healthy
of the birth of a
child.
equi-
this
damages, to the extent that
Prosser,
Dean
in an action
According to
table.
(Second)
Torts,
of
[Restatement
minor, “any
of a
wrongful
for the
death
§
(1979
added).]
(emphasis
920
prospects
of the
must mean
realistic view
rule to the
application of
settled
rearing
of
the child will far
that the cost
put
instant case
at issue
pecuniary
exceed
conceivable
benefits
appellant
before the
the dollar value to
might
expected
optimistically
that
ever be
testimony
require
of her child and
and evi-
him;
damages honestly
of
and
calculated
dence on both economic
other advan-
and
anything
on this basis could never be
but a
tages
disadvantages
having
in
of
Nevertheless,
in such
quantity.
minus
Thus,
being.
parent seeking
a
to recover
sus-
substantial verdicts
been
cases
unplanned
strongly
for an
child
be
will
very
tained where it is
evident that the
tempted
the
denigrate
to
child’s value to
horns, and in
have taken the bull
the
possible
the
in
to
as
extent
order
obtain
compensated
prohibited
for
reality have
the
large
possible.
recovery
a
as
The Illinois
relation,
aspects
of
sentiment
the
Supreme
recently
Court
commented con-
benevolently winking....”
the
with
cerning
consequences
apply-
the
of
adverse
Prosser,
Torts,
Law
Handbook
the
ing
wrongful
the
rule to a
benefit
of
of
1971).
(4th
inescapable
127
It is
that
ed.
case:
practical
juries
a
matter
will consider
as
permitting recovery
It
seen
can be
that
the
intan-
the emotional benefits and
other
requires
parents
then
that
the
demon
gible advantages
parents
from hav-
the
did
only
they
strate not
not want
monetary
as
child’s
ing a
as well
the child but
the child
remains
...
uncherished,
parents.
burden so as
value
unwanted
Annot.,
Annot.,
Smith,
237,
(1978);
1984); Kingsbury
N.H.
442
1079
parents,
reasons,
child-rearing damages
for financial
had
denied
because call
not wanted another
I
child. But
am also
ing
injury
a child an
“offends fundamental
that,
inclined to believe
even when child- concepts attached to life.” Schork v. Hu
rearing costs are not
awardable
such
ber,
861,
(Ky.1983).
648 S.W.2d
“In a
cases,
unplanned
likely
child is
learn
proper hierarchy of values the benefit of
line,
along
somewhere
of
at a moment
outweighed
life should
not be
the ex
parental
frustration,
unplanned
en- pense
supporting
it.” Cockrum v.
largement
family
of the
caused severe
has
Baumgartner,
193, 201,
95 Ill.2d
69 Ill.
financial strain.1
I
Accordingly, perceive a
168, 172,
385,
Dec.
447 N.E.2d
cert.
greater
corresponding
threat to love and to
—
denied,
-,
U.S.
104 S.Ct.
security
unplanned
emotional
for an
child—
L.Ed.2d and for all
other
children in the fami-
is,
problem
despite our shared values
ly
parents cannot make ends meet
—when
sanctity
life,
about
of human
it
family
than when
finances have been stabi-
say
naive—and often cruel—to
unequivo
through appropriate compensation
lized
cally
every
that the birth of
child confers a
negligence.
today
This court’s decision
every family
benefit on
outweighs
contributes
against
more to the threat
emo-
both the emotional and financial costs of
security
tional
protects against
than it
supporting it.2
McKelway,
Hartke v.
possibility
damage.
of emotional
U.S.App.D.C. 139, 147,
1544, 1552,
707 F.2d
it, therefore,
As I see
in cases where
—
denied,
U.S. -,
cert.
104 S.Ct.
parental
love
child is
sterilization because she and her husband
III.
financially
could not
afford to raise a
fourth
A
child.3 The material
number of
and emotional
courts on which the majori
ty relies,
well-being
of the
and their
ante
three
at 1075 n.
premise the
decision on a
very stability
reverence for
children—the
life that
im
their fami-
putes only
ly
undermined,
prospect
said,
joy, pride,
—would
companionship
spreading
thus
strain of
limited
fur-
resources
—and
benefit—to the birth of
ther.
Virtually
Appellant’s practical,
a child.
family-preserv-
by definition,
said,
some
par
ing
courts have
outlook reflects the considered view of
*7
damaged
ent cannot be
by healthy
who,
baby.
people”
“tens of millions of
through
Mullendore,
Boone v.
416 So.2d
contraceptives
sterilization,
722 the use of
and
(Ala.1982). These courts accordingly
“express
community”
sense
1. It is not
true that a child would be
parents
3.This
case differs from one in which
likely
litigation
less
to learn about
to recover
sought
genetic
therapeutic
sterilization for
or
pregnancy
my
costs of the
and,
col-
unplanned
reasons
after the
—which
child was
leagues permit
litigation
about
to recover
born, physicians
—than
ascertained that there was no
Thus,
child-rearing.
majority’s
costs of
case,
damage to the child or mother.
In such a
concern that a child not learn he or she was
the failure of the sterilization would not have
unplanned
premised
must be
on a belief that
injury anticipated,
resulted in the kind of
keep
damage
secret a limited
thus no claim would lie for
ex-
award,
complete damage
but not a
award. That
Hartke,
penses.
e.g.,
supra,
U.S.App.
See
proposition.
is a dubious
148-49,
D.C. at
rebut by showing the good declining reasons for to seek an abor- mother’s damages great are not as as al- put tion or to up adoption. the child leged because certain of proposed kinds majority then concludes that expenses should not be considered neces- be would an offensive inquiry, at odds with sary (e.g., private schools, lessons) music public policy, and thus court should and also because the anticipate can get quagmire not into the claim some calculable financial benefits from require. costs would child, including earnings income from dur- ing teenage years and from other agree I that this court should not toler- However, source available to the child. inquiry ate an into a mother’s reasons (“satisfac- evidence emotional pursuing benefit either of these alternatives. tion, love, joy, pride”) distin- That privacy would be an invasion of —as guished from financial religious benefit —cannot be often an offense beliefs. But injury. introduced to offset majority bogus raises issue. These Jones, supra, 6. See duly. Although jury 299 Md. at consideration of such ben- (plaintiff present, experts, through can might fore- efits result in lower award than expenses supporting educating seeable appropriate, jury's weighing covert of intan- majority age by typical reference to gible benefits would no emotional conse- inflation, index, expenditures, price consumer quences family. parents for the Because the criteria). and other relevant economic permitted evidence of introduce their emotional attitude toward majority suggests way 7. The that there is no permitted argue would not be that attitude to prevent considering intangible danger jury, there is no benefits, even in the face of an instruction to the denigrate the child’s value court. true, contrary. If this need not trouble us un- *9 1082 8, (Del.
very
Garrison,
reasons why
A.2d
12
inquiry
no such
v.
349
should Coleman
be permitted
237,
Smith,
make
why
1975);
clear
or
122
Kingsbury
abortion
v.
N.H.
adoption would not be a “reasonable ef- 243,
1003, 1006(1982);
442 A.2d
Berman
fort,” id..,
jury
for a
to consider in applying
Allan,
14
80 N.J.
consequences
the avoidable
rule. That rule
Co.,
64
Protective
Rieck v. Medical
limits recovery “only
plaintiff]
when
is
[a
219
245
N.W.2d
Wis.2d
refusing
failing
unreasonable in
or
to take
prevent
Id.,
action to
further loss.”
com-
disagree.
In a case
a
profoundly
I
where
I
a
ment c.
believe it is unreasonable for
plaintiff can
financial straits
prove that
suggest
court even to
that a woman con-
sterilization,
pride
joy
and
in
motivated
equally
sider an
It is
unreason-
abortion.
by fi-
unplanned child can be undermined
suggest
who,
able to
that a woman
point
to the
of substantial
nancial stress
reasons,
sound
did not want another child
deprivation
unhappiness.
the ab-
and
putting
consider
that
must nonetheless
costs,
child-rearing
sence of awardable
up
love
adoption
once the
inherent
moreover,
pressures for
or
the
abortion
a
parent-child relationship
in
has become
adoption
Appellant
are unconscionable.
Arizona, supra, 136
reality. University of
fi-
compensation only
provable
seeks
5;
Ariz. at
n.
P.2d at 1301 n.
physician malpractice.
273-75,
injury
nancial
Jones, supra,
Md.
A.2d
at
437-38;
Accordingly,
a financial
supra, Mich.App.
at
at
this would not be
Troppi,
519-20; Sherlock,
257-61,
windfall;
effect,
appellant merely
N.W.2d
in
would
supra,
cipled awarding child-rearing basis for if, following negligent sterilization, deformed, child is born or substantially
with capacity, diminished re-
quiring (or lifetime care. Is a state) also to bear the full burden of a
physician’s negligence happens? when this not,
If a later court modify majority’s premise say
baby altogether is not blessing, and then recovery
allow on the theory that the sanc-
tity and benefits of some human lives can ascertainably point diminished to the the child is a net detriment
parents.9 barring recovery of child-rearing costs negligent sterilization,
after a when a fami-
ly prove can that economic necessity moti- operation,
vated the effect
concludes that all enough will be well family, and thus persons re- sponsible need not for the foreseeable
consequences of their tortious conduct. I
cannot subscribe to that view.
Respectfully, I dissent. JAMES, Appellant,
Charles
v. STATES, Appellee.
UNITED
No. 82-969.
District of Columbia Court Appeals.
Argued Sept. 1, 1983. July 16,
Decided majority’s position Schwartz, 401, 409-15, 9. The would not 46 N.Y.2d 386 N.E.2d preclude (after 811-14, disability a child (1978) born with a 413 N.Y.S.2d 899-903 negligent mother) (permitting sterilization recovery by parents but not bringing, behalf, child); “wrongful in his or her own Hosp., Burner v. St. Michael’s Wis.2d 766, 769-75, life” action to (1975) recover the costs of lifetime care. 233 N.W.2d 374-76 Courts, however, per (same). Sortini, have not been Turpin inclined to But see v. 31 Cal.3d See, Berman, e.g., mit such supra, (1982) actions. Cal.Rptr. (permit 643 P.2d 427-33, 12-14; child). N.J. at ting recovery Becker expenses by of medical