*1 GRECO, Individually, SUNDI A. as Mother Appellant, GRECO, Next Friend JOSHUA Respondent. AMERICA, UNITED OF STATES
No. 24587 March P.2d Case, D.C.; Jack H. Washington, Olender and-Harlow R. Reno, Lynch, Hamilton & for Appellant. Jordon, Plante,
GaryP. U.S. Jeanette U.S. Attorney, Assistant C. U.S. Attorney, Sanger, Attorney, Donna Assistant District Baltimore, Maryland, Maryland, Respondent. Drendel, Reno,
Bradley & Drendel and Thomas E. for Amicus Curiae Lawyers Nevada Trial Association.
OPINION Court, Springer,
theBy J.: certify this case we to the United States District Court for the District of Maryland that a mother has a tort claim in negligent against professionals negligently who fail amake timely defects, diagnosis gross fetal disabling thereby denying the mother her pregnancy. terminate the *3 We further the certify that child born to this mother has no personal cause of action for what is sometimes called “wrongful life.” observed,
As Justice Felix Frankfurter “[Pjerhaps no field of the law comes to closer so many lives of families in this than country does the law of . . . negligence .” Tiller v. Atlantic Co., R.R., Coast Line 318 U.S. Today it is the Greco family whom law negligence of touches. The first question before this court is whether Nevada’s common law of negligence offers relief to the of mother a child with born severe deformities whose physicians’ negligence caused the mother to ignorant remain of fact that she was a carrying severely deformed fetus. We answer this in the question affirmative. The question second before the court is whether Sundi Greco’s dis- abled child has any enforceable legal arising claims out of the being child’s born congenital with defects. We ques- answer this tion negative. in the In July Greco, A. appellant,1 Sundi mother of co- Greco,
appellant (“Joshua”) Joshua filed individually, suit and behalf, on Joshua’s against respondent, the United States of America. Sundi and alleged Greco Joshua that Sundi Greco’s doctors at the Nellis Air Force Base in Nevada committed several negligence acts of in connection with Sundi prenatal Greco’s care designated- plaintiffs 1The United States District Court has in the underlying appellants action as this action. The United States will be throughout respondent. referred Lawyers The Nevada Trial Association (“NTLA”) filed a brief with this court as amicus curiae. are Joshua and result, Sundi that, both as a and delivery and to moved States United The money damages.2 to recover entitled a state failed complaint that ground on the dismiss suit of action. cause 20, 1993, for the District Court July the United States On this court order with Maryland filed a certification District certain 5,3 this court answer pursuant requesting to NRAP a birth of caused unwanted relating negligently to the questions from birth defects. suffering child child, to recover Grecos, this case seek mother and out arising the United States damages from claim, timely make a who, failed to negligently they physicians the child afflicting and anomalies defects diagnosis physical Greco asserts Sundi in the mother’s womb. when it was still to termi- the opportunity her denied physicians’ negligence damages attendant thereby caused pregnancy nate her and On severely child. deformed of an unwanted avoidable birth behalf, negli- physicians’ that the Sundi Greco avers Joshua’s right to Joshua’s mother’s denial of gence and the resultant grossly into a to be born caused Joshua pregnancy terminate pain deprivation. abnormal life birth” “wrongful termed claims have been These kinds tort brought on when “wrongful life” when brought parent deformed. by being born suffered behalf of the child for harm LIFE” “WRONGFUL ACTION: THE CHILD’S CAUSE OF child for defects action recognize any We decline diagnosis by negligent caused to child claimed have been is condi- argument The Grecos’ the child’s mother. treatment of 5(a) provides: 3NRAP *4 may questions by of it Supreme Court answer law certified to States, Supreme Appeals Court a Court of the United United of States, Columbia, Court, or of the District of or a United States District court, requested by certifying when if are in there involved proceeding questions of law of this state which before those courts pending certifying in court be determinative of the cause then and as controlling appears certifying court is no
to which it there precedent supreme of this decisions of court state. Court, by 2According facts as certified the United States District bifida). congenital myelomeningocele (spina Congen Joshua “was born with deformity, macro/hydrocephaly, talipes ital bilateral varus and Arnold Chiari malformation, ventriculoperitoneal type required placement Joshua two. hydrocephalus. hips paraplegia shunt for He with no sensation from the has permanent gross down suffers fine and motor retardation mental retardation.” 409 tional and narrowly put, so: if court this does not allow Sundi Greco to recover damages Joshua’s care past age majority, it should allow Joshua to recover those damages by recognizing claims for “wrongful life.” Implicit argument this is the assumption that the child would be better off had he never been bom. difficult, These kinds judgments are very if not Indeed, impossible, to make. most considering courts the ques- tion have denied this cause of action for this reason.4 precisely Recognizing this kind of claim on behalf of the child would require us to weigh the by harms suffered virtue of the child’s been having born with severe handicaps against “the utter void of nonexistence”; is a this calculation the courts are incapable performing. 689, Gleitman v. (N.J. 227 A.2d Cosgrove, 1967). The New York Court of Appeals framed the problem this way:
Whether it is better never to have been born at all than have been born with gross mystery even deficiencies is a more to be left to properly and the theolo- philosophers gians. the law Surely can assert no to resolve the competence issue, particularly very nearly view of the uniform high life, value which the law and mankind has on human placed rather than its absence. Schwartz, (N.Y. 1978).
Becker v. 386 N.E.2d We conclude that Nevada does not a claim a child for recognize by harms the child claims to have having suffered virtue of been born.
THE MOTHER’S CAUSE OF ACTION
regard
With
against
Sundi Greco’s claim
physician
negligent diagnosis or treatment
we
no
during pregnancy,
see
reason for compounding or
our medical
complicating
malpractice
jurisprudence by according
particular
professional
this
form of
negligence action some special
apart
presently recog-
status
from
nized
medical
or
it the new name of
giving
“wrongful birth.”5 Sundi Greco either does or does not state a
claim for medical
and we conclude that she does.
malpractice;
1984); Goldberg
(Idaho
v.
4See,
Cruz,
P.2d 315
e.g.,
v.
Blake
Sortini,
1984); compare Turpin
Ruskin,
(Ill. App. Ct.
471 N.E.2d
special
recover
1982) (in bank)
(allowing child to
(Cal.
It is reason for difficult to formulate sound saying, in ery to Greco in the at hand. Sundi Greco is Sundi case effect, to her doctors: do, would were I you you supposed “If had done what carrying that I was early my pregnancy have known have then terminated severely baby. deformed I would mental go had to through and would not have pregnancy child, I have this would agony delivering and nor physical and attendant to the birth suffering had to bear the emotional child, necessary extraordinary expense nurture of the nor the deformity such extreme suffering care for a child from disability.” reasons Sundi denying United States advances two first, injury has suffered no argues
Greco’s claim:
it
that she
that, therefore,
liability is
damage
negligent
element of
tort
second,
fulfilled;
if Sundi
argues
not
States
that even
United
were not
injury
damages,
Greco has sustained
its
support
argument,
caused
To
first
physicians.
Robinson,
United
out
Szekeres
points
States
that in
of a
(1986),
held that the mother
P.2d 1076
this court
normal,
tort
physician
child could
recover in
from a
healthy
because
operation
who
her sterilization
negligently performed
normal,
injury.6
healthy
legally cognizable
birth of
child is not a
6We did
might
remedy
observe that the
against
mother
have a contractual
physician
promised
for failure to do
patient.
what he
to do—sterilize his
Id. at
birth of a
severely
baby
normal
the birth of a
deformed
the kind described here is
an
necessarily
unpleasant and aversive
event and the cause of inordinate financial burden that would not
attend the birth of a normal child. The child in this case will
unavoidably and necessarily
of extraordi-
require
expenditure
medical,
nary
therapeutic and custodial care
expenses by
family, not to mention the additional reserves of
mental
physical,
and emotional
that will be
strength
required
all concerned.
Those who do not wish to undertake the many burdens associated
with the birth
child
and continued care of such a
the legal
have
right,
state,
under Roe v. Wade and codified
by
voters of this
Wade,
to terminate their
Roe v.
pregnancies.
We reject also the United State’s argument second that Sundi physicians Greco’s did not any injuries cause that Sundi Greco have might suffered. We note that the mother is not claiming that her by child’s defects were caused her physicians’ rather, negligence; she claims that her physicians’ negligence her kept ignorant of those defects and that it negligence was this which caused her to lose her to carry choose whether to child to term. The Sundi Greco damage has sustained is indeed causally related to her physicians’ malpractice.
Sundi Greco’s claim here can be to one in which a compared physician fails to negligently diagnose cancer in a Even patient. cancer, though the physician did not cause the can physician be held liable damages from the resulting patient’s decreased cancer, to opportunity fight the and for the more extensive pain, suffering and medical patient by treatment the must undergo reason of negligent Perez v. diagnosis. Vegas See Las Medi- Center, (1991) cal 805 P.2d the “loss (adopting of chance” cases). doctrine in medical The malpractice here, “chance” lost was legally Sundi Greco’s protected right severely choose whether to abort a deformed fetus.7 If we were to 7The other causation-related issue before this court is contained in the following question certified from the United States District Court: What is effect, any, planned if if the birth was and the child wanted parents? We planned conclude that whether or not the birth was parents malpractice presented is irrelevant claim Greco’s to this court. arguing opportunity Greco is that she was denied the to choose whether to effect, claim, would, in be deny groundlessly we Sundi Greco’s liabil- from malpractice one of medical excepting type from ity. any differently We this case see no reason treat a prima Greco has stated other medical case. Sundi malpractice law. malpractice facie of medical under Nevada claim DAMAGE ISSUES to decide what certified us question requires specifically if types of the mother recover she succeeds damages Courts in have with what proving struggled claim. these cases because, items typical are recoverable unlike claim, claims Greco’s not involve a such as Sundi do physical We consider each of Sundi injury patient’s person. Greco’s claimed items of damage separately. Extraordinary medical and expenses custodial *7 medical,
This claim for the and damages therapeutic relates to custodial costs associated with for a caring severely handicapped child. of nothing There is in this item exceptional allowing damage. tort law com- recognized It is a of to “afford principle the pensation injuries sustained one as the result of person al., Keeton, conduct of another.” W. et and Keeton Page Prosser Torts, 1984); on the (5th Law 2 at ed. see K Mart Corp. 6 § of Ponsock, 39, 49, 1364, (1987) (tort 103 Nev. P.2d 732 1371 “whole”). damages injured Extraordinary serve to make party care alleged are a of the expenses foreseeable result case, this those and Sundi Greco should be allowed to recover us to of expenses prove question if she can them. This leads the how to injuries. for these kinds of compensate the correctly
Sundi Greco that Nevada law requires observes the parents beyond of a child to child handicapped support 125B.110; age of the child itself. majority support if cannot NRS see, Minnear, 495, Minnear v. 814 P.2d e.g., (1991). from a recognizes parent Nevada the of a to recover right the was to because any expenses parent required pay tortfeasor the Pacific to his or her child. Frances v. Plaza injury minor not, had planned she was or pregnancy pregnancy. her Whether terminate Roe v. parameters set forth pregnancy within terminate that to may have Whether the mother voters of this state. Wade codified infirmities, child, the trier a factual issue for despite its “wanted” baby, notwith- to have elected Obviously, mother would have fact. if the damage of the condition, loss no from the standing she would suffer its pregnancy. opportunity to terminate Equities, Accordingly, Nev. Sundi 847 P.2d extraordinary Greco the right damages claims to recover for these costs for a to Joshua’s life Other states period equal expectancy. parents which to care for children require handicapped past age types allow to recover majority plaintiffs these for the until as the lifetime child or such time child is no longer agree on her or his We with these dependent parents.8 conclude Greco recover authorities and that Sundi extraordi- nary with expenses caring medical custodial associated Joshua for whatever of time it is established that Joshua period will be provide her such care. dependent upon
The United States contends that if this court allows the mother
to recover such extraordinary medical and custodial expenses,
then it should require the
court
district
to offset
such award
by the amount it would cost to raise a non-handicapped child. To
otherwise,
do
argues
States,
the United
would be to grant the
See,
mother
Cote,
a windfall.
e.g.,
Smith v.
513 A.2d
349-
(N.H. 1986)
rule).
(adopting offset
The offset rule has its
origins
two doctrines: the “avoidable
rule,”
consequences
requires
which
plaintiffs mitigate their
cases,
damages in tort
expectancy rule of damages
cases,
employed in contract
which seeks
place
the plaintiff in
the position he or she would have been in
had
contract been
Smith,
performed.
Loss services and not be Sundi Greco should The United States contends that her child lost to recover for the services of damages allowed that but due to child’s because Sundi Greco claims handicap, carried of her she would never have physician then, had not her It that if the child to term. follows pregnancy born, been Greco have had far less in terms Sundi would currently expect she can service and than what companionship from NTLA to rebut handicapped attempts her child. Amicus by Sundi Greco’s situation argument analogizing United States’ 360, Bush, that in General Co. v. 498 of the wife Electric to recover permitted P.2d In that case a wife was 366 companion- tortfeasor of the services and damages from a for loss husband, a her still alive but had become ship of who was invalid. The Electric case permanent exemplifies General for these sorts problems relating request to Sundi Greco’s Electric, lost the in the instant In General the wife damages case. individual; here, crux of healthy, of a productive services had Sundi claim is have aborted the fetus Greco’s that she would case, she would she been to do so. given opportunity have at all. thus conclude had no services We companionship companion- not lost services or Sundi Greco recover for ship.
Damages emotional distress continue to suffering Greco asserts that is and will
Sundi she a result of pain suffer tremendous mental and emotional as birth allow such jurisdictions plaintiffs of Joshua. Several cases, recover In line with these damages.9 Sundi Greco to such who is agree we that it is foreseeable that a mother reasonably suffer severely to abort deformed fetus will right denied delivered, distress, but for just when the child emotional that the Consequently, of the child’s we conclude rest life.10 Dist., 984, (Fla. 2d Ct. 9Lloyd Hosp. Broward 570 So. Dist. v. North 988 Lucas, 1022, (Fla. 1990); 2d Dist. App. compare Moores 405 So. 1026 v. 8, (Mass. 1981); Milunsky, 551 11 App. Ct. see also v. N.E.2d Viccaro 232, 1987); Bartolo, (Mich. 1980); App. 238 Ct. v. 412 N.W.2d Proffitt 1986) Sherman, 1327, (Pa. (dicta); v. A.2d Naccash Ellis v. 515 1330 Parke-Davis, Inc., 825, 1982); Burger, (Va. 831 Harbeson v. S.E.2d (Wash. (en banc). 1983) 656 P.2d (Cal. Legg, argue analogy 441 P.2d parties 10Both to Dillon 1968) (en banc). recognizes parent law to recover Nevada Supreme if forth the California emotional distress the factors set Equities, Nev. Court met. v. Plaza Pacific in Dillon are Frances *9 mother in this case should have the opportunity to that she prove suffered and will continue to suffer emotional distress as a result child. birth of her
We reject the United argument States’ that this court should follow an “offset” rule with regard damages for emotional Cruz, distress. Blake v. (Idaho 1984) 698 P.2d Cf. (requiring damages emotional distress to be by offset “the countervailing emotional benefits attributable to the birth of the child”). Any emotional benefits are too simply speculative to be by considered in jury awarding emotional distress As damages. Dean Prosser observes: In the case of the wrongful birth of severely impaired child, it would that the appear joys usual of parenthood would often be substantially overshadowed the emotional condition, trauma of caring for the child in such a so that application of the benefit rule would appear in inappropriate this context. Torts, Prosser and Keeton on the Law supra, 55 at 371 n.48 § (citations cavil, omitted). It beyond example, “[t]here joy is no in watching a child suffer and die from cystic fibrosis.” Perkel, Schroeder (N.J. Moreover, 1981). A.2d it would unduly complicate jury’s task to it require weigh one intangible against harm another intangible benefit.
CONCLUSION We conclude that a mother may maintain a medical malpractice action under Nevada law based on her failure physicians’ prop- erly to perform or interpret prenatal examinations when that failure results in the mother losing opportunity to abort a severely deformed fetus. Sundi Greco should be given prove that she has suffered and will continue to suffer the form of emotional or mental distress and that she has incurred and will continue to extraordinary incur medical and custodial care expenses associated with raising Joshua. We decline to recognize the tort sometimes called “wrongful life.” J., Young, J., C.
Steffen, concur. J., J. joins, Shearing, Rose, with whom concurring part dissenting part: plaintiff proximity of the P.2d 1024 Those factors are: the injury; actually injury; and the plaintiff scene of the whether the observed Although degree relationship plaintiff victim. these between the bar, Legg any reliance on Dillon v. factors are met in the case at we find personal injury, not misplaced. for a direct and Greco seeks to recover injury because of mental occasioned an to Joshua. distress *10 agree
I with the that a mother majority should have a malprac- tice claim against who fail to make a professionals negligently However, timely diagnosis of fetal defects. I would also allow the action, impaired child a cause of with the measure of being extraordinary attributable to the expenses child’s impairment. case,
In this Joshua was born with congenital defects which result in his suffering paraplegia with no sensation from the hips down and permanent gross fine and motor retardation and mental retardation. It is clear he require extraordinary will care throughout his life.
This case is not a traditional claim in which a medical professional causes directly patient injuries. to suffer order any to find causation professional’s from medical failure abnormalities, to test for one accept proposition must that if fetus, Joshua’s mother had been informed of the condition of she would have therapeutic had a abortion and Joshua would never have been born.
Courts have great had a deal of difficulty dealing with moral implications of or a child for that compensating parents birth, child’s when the plaintiffs’ essentially claim is that they would all be better off had the child never been born. One reason the issue of is so compensation knotty is that it runs counter to our conception of the preciousness human life.
This court has held that the birth of healthy a normal child is not “a ‘wrong’ or the type injurious for which consequences should, courts, society through its as a matter of public policy, Robinson, 93, 97, give reparation.” Szekeres v. P.2d This court then went on to state “[o]ur decision to disallow tort actions for the birth of a normal child . . simply . holds that one cannot recover in tort for such an event tort, because the constituent element namely of a 97-98, is damages, present here.” Id. at P.2d at 1079. question this case is whether the birth of a seriously impaired child “damages” constitutes within the contemplation of our tort law. courts,
The majority, along with other rejects impaired child’s cause of wrestling action after with the question whether damages exist when that determination the com- requires parison value of an life to the value of no life at impaired Schwartz, all. The majority Becker v. 386 N.E.2d quotes (N.Y. 1978), in which the New York Court of stated: Appeals Whether it is better never to have been born at all than to have been born with even deficiencies is a gross mystery more to be left to the and the theolo- properly philosophers gians. Surely the law can assert no to resolve the competence issue, particularly in very nearly view of the uniform high life, value which the law and mankind has on placed human rather than its absence. Not to be only there found no predicate at common law or in statutory judi- enactment for cial recognition the birth of a injury defective child as an child; the implications proposition such are honored, staggering. Would claims be assuming the breach of an duty, identifiable for less a perfect than birth? And by what or by standard whom perfection would be defined?
There is also a second . very flaw. . . The allegations the complaint state had the defendant not negli- been gent, the conceive, infant’s parents would have chosen not to conceived, or having have terminated rather than to have term, carried the pregnancy to thereby the infant depriving plaintiff of very his put, existence. Simply cause of *11 action brought on of seeking recovery behalf an infant for wrongful life a demands calculation of damages dependant a upon comparison between the Hobson’s choice of life an impaired state and nonexistence. This the law is comparison unequipped to make.
Id. at 812. Other courts have echoed the
the
expressed by
distress
Becker court in denying this cause of action. See Azzolino v.
Dingfelder,
(N.C. 1985).
plaintiff suffers, exists and due to the of It others. is neither necessary just nor to retreat into meditation on the mysteries of life. We need not be concerned with the fact that had defendants not been negligent, plaintiff might the not have come into at The certainty existence all. of genetic addition, impairment is no a longer mystery. In a reverent appreciation compels of life how- recognition plaintiff, be, ever impaired she come as a has into existence living person with certain rights.”
Although it is to easy understand and to endorse these decisions’ desire to affirm the less- sanctity worth and of life, than-perfect we whether considerations question these provide alone a sound basis tort rejecting for child’s with, begin action. To it is to hard see how an award of suffering child would a severely handicapped to suggest that way of life or in ‘disavow’ value legal nonlegal measure and
child not entitled to the full of is society. accorded to all members rights privileges Laborato- Bio-Science Id. at Curlender (quoting 961-62 ries, (Ct. 1980)). Rptr. App. 165 Cal. on hold that both the The Court went to Supreme California However, court a cause of action. child and the had parents only for and allowed general damages claim rejected parents’ extraordinary expenses the claim for medical expenses required because teaching, training equipment specialized Id. impairment. at 966. taken a similar Jersey approach, The New Court has Supreme Cilio, (N.J. A.2d 755 stating in Procanik Procanik v. 1984): a finding that such defective problem of philosophical only no at all not perplexed
life is worth less than life has Schreiber, members distinguished Justice but such other however, preoccupied, this . . . need Court. We not become with Our decision these considerations. metaphysical extraordinary is recovery expenses allow the medical to an on non-life is premised concept preferable life, living. on the needs impaired predicated but it living help We call only respond seek their bearing the burden of affliction. claim for recognize general
Sound exist not to reasons fact that begins Our with unfortunate damages. analysis being chance the infant never had a born plaintiff normal, a life healthy Tragically, only his choice was child. *12 The congenital or no life at all. handicaps burdened with his the by him was not caused syndrome plagues rubella doctors; only proximate defendant the negligence the birth. result of their was the child’s toway there is no rational The crux of the is that problem the or to non-existence with compare measure non-existence theo- his existence. Whatever pain impaired and suffering pain a claim for might recognizing retical one find in appeal and essentially the irrational suffering outweighed by and in a Although damages unpredictable nature of that claim. need be calculated with mathemat- personal injury action not modicum ical at their base some they require precision, rationality. of the capabil- is an evaluation
Underlying our conclusion in these cases proceeding often ity judicial system, of the at work to such a claim. Also by appraise trial through jury, is an appraisal compensating of the role tort law in injured does, reason, parties, involving only as that role not but also fairness, predictability, and even deterrence of future wrong- brief, ful acts. In the ultimate decision is a choice policy summoning judgment. most sensitive and careful We believe that justice the interests of fairness are and better through served more measured predictably damages—the cost of the extraordinary medicad expenses necessitated plaintiffs infant so handicaps. Damages measured are subject to the same wild claim for swings as a and pain suffering and will a sufficient to deter carry sting future acts of medical malpractice.
Id. at 763. of the approach Jersey California and New courts is
sound. These courts refuse to become in mired philosophical life, discussions and value meaning focus on compensating injured parties deterring wrongful future con- duct.
Our in knowledge the fields of genetics obstetrics has grown dramatically, far-reaching with for consequences human life. It is clear that responsive counseling treatments and the necessitated those treatments will in accordance with develop would, our ever-increasing capability diagnose. test and It therefore, be anomalous for medical in these practitioners fields to be immune from or liability wrongful conduct for departing from professional accepted standards. Unquestionably public policy behind tort children law supports compensating impaired and their parents damages resulting from special impair- ment when negligence of medical results in professional the birth of the impaired child. this
Although
court has stated that the
public policy Nevada
is that birth of a
healthy
legally
normal
child is not
compensable
damage, this court has
recognized
also
value of an
impaired life is not
than
always greater
the value
non-life. See
McKay
Bergstedt,
Some have majority, courts between distinguished, does the life wrongful birth action of the wrongful parents
action There for this certainly logical justification of the child. The life action approach concepts. wrongful under traditional tort causation and How- presents regarding duty, damages. problems ever, I with the New court which stated in Procanik agree Jersey by Procanik: logic, analy- more than logical
Law is an exercise sis, should although system justice, essential to a ordered inheres injustice. logic not become a instrument of Whatever extraordinary the cost parents to recover for permitting child, medical care a birth-defective but incurred the child’s own to recover those denying right expenses, yield injustice must of that result. The to recover crushing extraordinary the often visited expenses burden by an act of medical should on depend not fortuitous are “wholly parents circumstance whether the available to sue.” 755, Sortini, (N.J. 1984)
478 Turpin A.2d 643 (quoting (Cal. 1982)). P.2d child I would allow the the cost of extraordinary expenses impairment. attributable claims of the child and are it mutually dependent; the parents would deny parent be unfair to to the child if the compensation parents are available to claim. there can be make their While no recovery, action should duplication of either lie. rel., KNAPP; NEVADA, its OF ex M. STATE WILLIAM Department v. STATE Personnel, Appellants, Department Prisons, NEVADA, rel., OF ex its Respondent. No. P.2d 575
March