Grubbs Ex Rel. Grubbs v. Barbourville Family Health Center, P.S.C.

victim, rob murder the Court the trial court’s instructions omitted the today’s majority no mention of opin- made definition. McClellan and, fact, in “subterfuge” theory ion’s held STUMBO, J., joins concurring companions

that “Tribbett and his two opinion. by invited were into his home. [the victim] ”14 such, they As were mere licensees. To- day’s majority opinion thus unnecessarily theory

embraces new of “unlawful entry”

burglary appears inconsistent with commentary

both the to KRS 511.020 and

our case law interpreting it. V(5)(a),

As to Part I agree with the By Carlei Nacole GRUBBS EED plurality Dean a mitigating as Through Friend, Kimberly Her Next circumstance is conceptually the same as GRUBBS, al., Suzane et Mov defense, EED as a and that the McClellan Respondents, ants/Cross v. applies Commonwealth15 definition either case. “even though the influ- ence extreme mental or emotional dis- BARBOURVILLE FAMILY HEALTH turbance is not sufficient to constitute a CENTER, P.S.C., al., Respon et language defense the crime” in KRS Movants, dents/Cross 532.025(2)(b)(2) jurors advises the that the (1) existence of EED that: lacks a reason- (2) explanation excuse, able is of By Through Nathan Robert degree i.e.,

lesser one that does not — Friends, His Next Gretchen a temporary cause state of mind so en- Bogan, al., and Daniel et Mov inflamed, raged, as or disturbed to over- Respondents, ants/Cross one’s judgment come one to cause act uncontrollably nevertheless con- —can in mitigation penalty. sidered Accord- McGuire, al., P.S.C., Altman & et that, I ingly, believe cases where the ev- Respondents/Cross Movants. supports on idence an instruction the KRS 2001-SC-0563-DG, No. 2001-SC- 532.025(2)(b)(2) circumstance, mitigating 0961-DG, 2001-SC-0571-DG,

the instructions should EED so define 2001-SC-0959-DG. jury determi- meaningful make nation to whether that cir- mitigating Kentucky. Supreme Court of Here, however, present. cumstance is I 21, Aug. 2003. agree the ma- result reached jority because there was no evidence to Aug. As Amended 2003. EED, warrant a finding as defined Rehearing Dec. Denied McClellan, phase either trial.

And, thus, beyond the error was harmless

a reasonable doubt-because Caudill could prejudiced by

not have been the fact that Commonwealth, (1986), supra Ky., 14. Tribbett v. note 12 715 S.W.2d 468-69 cert. added). denied 479 U.S. 107 S.Ct. (emphasis L.Ed.2d 986 Surtees,

Geoffrey Manion, R. Francis J. Justice, Center for Law & Hope, New Cetrulo, President, Robert C. Northern Kentucky Life, Right Covington, Coun- Curiae, sel for Amici Catholics for United Life, Life, Kentucky Northern Right P.S.C., Barbara Yeager, Elliott Barbour- Life, Kentucky for Coalition and American ville, Counsel for Respon- Movants/Cross Center for Law Justice-Midwest. dents, Grubbs, by Carlie Nacole Friend, Through Her Kimberly Next Su- Opinion of the Court Chief Justice Grubbs; Grubbs; zane Suzane and Ken- LAMBERT. neth Charles Grubbs. This Court granted discretionary review Nichols, Mark Marrs, E. Melanie S. to consider two impression issues first Fulkerson, Lynn, Kinkel, Nichols & in this Commonwealth. The first is wheth- PLLC, Lexington, for Respon- Counsel er of a born with incura- Movants, Barbourville Family dents/Cross profound ble and birth defects Center, P.S.C.; Health and B.R. Jung, cause of action for physician M.D. failing correctly diagnose inform and/or Wayne Collier, Stilz, F. Kinkead & them of the fetal medical condition in time P.S.C., Lexington, for Counsel Movants/ for an abortion. The second issue Respondents, Cross Nathan Robert whether the child has a claim for the same Friends, and Through His Next Gret- medical errors or omissions.1 To decide chen Bogan; and Daniel Nathan issues, these must focus we on three areas Bogan; Bogan, Robert Gretchen and Dan- (1) inquiry: these new whether are Bogan. iel causes of au- requiring legislative action thorization, they or whether are conven- Pisacano,

Margaret Lynn M. Rikhoff (2) cases; negligence tional ‍​​​​​‌​‌‌‌​​​‌‌​​‌​‌‌‌​​​‌‌​​​​​​‌​‌‌‌​‌‌‌​​​​‌​‍if we deter- Kolokowsky, Jenkins Pisacano Robinson <& ' mine are traditional negligence Bailey, Lexington, Counsel for Respon- actions, whether, law, as matter Altman, Movants, Mcguire & dents/Cross proven; elements of negligence P.S.C.; Altman, Pigg, Mcguire & Mcclel- (3) public policy are there consid- lan, P.S.C.; Altman, Mcguire, Pigg & analysis. erations that affect the Both Mcclellan, P.S.C.; Altman; Harry E. upon summary judg- cases were decided Mcclellan, Pigg; R. A. James Rick ment, are upon and thus we called Mcguire. Tom 0. review if it the case to determine should Jr., George Overbey, Edward Monica proceed to trial.2 McFarlin, Mary Kentucky Cabinet for THE GRUBBS CASE Services, Department Health for Medicaid Services, Frankfort, cases, In Kentucky plaintiffs allege Counsel for both Services, Dept, early Health diagnostic Cabinet for Medic- procedures revealed defects, Services. aid birth the physicians but that failed Although these causes action are whether a as a result of a often child born doctor’s “wrongful "wrong- referred to as birth” and negligence compensable is a element of dam- life,” respectively, terms Huber, ful leading. these can be mis- ages”). Ky., See Schork v. (1983)(Leibson, S.W.2d ing)("The J. dissent- Inc., Center, 2. Steelvest v. Scansteel Service depicted issue is not dramatic as Ky., 807 S.W.2d 476 upon We simply called to decide recognize causes of action interpret accurately report and/or trial life. The court Kimberly late results. Grubbs birth Jung perceived Dr. sought care from B.R. it would follow prenatal ruled Family at the Health Center. allow the Barbourville rule and 19, 1996, April Ms. On when Grubbs was not a proceed. The claim action pregnant, stated, Dr. approximately action, weeks court the trial new cause of ul- performed screening Jung prenatal claim a traditional and her husband trasound. Ms. Grubbs breach, duty, requiring the elements showed were informed that the results injury to proven causation nor- progressing pregnancy that the was to prevail. later, a mally. Approximately two months However, trial court refused to rec- the performed. second ultrasound was There- claim, stating life that ognize after, Jung first informed the Dr. injury, matter there no аnd as a of law was might that fetus have birth defects. of not negligence thus the elements Dr. referred Ms. to the Uni- Jung Grubbs reasoning The trial court’s was proven. versity Kentucky of Medical Center the child’s life alleged that the was further June evaluation. On itself, public against policy and that it was eighth level II pregnancy, month of a life, imperfect, a human albeit weigh performed Mater- ultrasound was no at all. against Douglas Specialist Medicine Dr. nal/Fetal filed subsequently a sec- The defendants Milligan, and he determined that the fetus summary judgment motion for based ond spina hydrocephalus. had bifida and On trial the statute of limitations. The upon 22, 1996, July Carlei Nacole Grubbs was motion, stating granted court that diagnosed born with the birth defects. year time file suit within one proper down, paralyzed She also waist than discovery of the condition rather from kidneys. poor misshapen has vision and year birth. A final one child’s The ac- brought Grubbs’s judgment of dismissal was entered. Jung tion Dr. and the Barbourville THE BOGAN CASE Family al- Health Center. The Grubbs’s leged negligently that the defendants The facts case similar. of interpret April failed to 1996 ultra- that In learned late Gretchen correctly, they inform sound failed to sought prenatal and care pregnant she was the ultrasound revealed Altman, Grubbs’s of from the obstetricians McGuire defects, presence profound P.S.C., County. De- in Pike In Pigg, & failed to they inform Grubbs’s gestational the fetal cember when spina tests diagnostic other prenatal weeks, twenty-two to be was estimated age hydrocephalus. bifida and The Grubbs’s screening per- ultrasound was pre-natal they alleged that if had been informed Ac- by an ultrasound technician. formed diagnosis at the time of the the correct deposition, cording Dr. Altman’s ultrasound, have termi- April ultrasound was administered “confirm therefore, pregnancy; nated dates rule out anomalies.” obvious timely notify defendants’ failure to them interpreted Altman the ultrasound Dr. making prevented them from defects Bogan. advised Ms. On normal and so an informed decision to continue or termi- 31,1993, Bogan was Nathan Robert March pregnancy. nate the prematurely caesa- several weeks born was neсes- summary rean section. caesarian moved for defendants enlarged had Nathan’s claiming sary cyst because a judgment, Kentucky does cyst occupied head. As the ages (although most his ultimately the case was dis- cranium, brain, eyes upon he has grounds). and no missed statute limitation he has an although underdeveloped brain THE COURT OF APPEALS stem supports minimal autonomic The Court Appeals consolidated the functioning. He palate has cleft two cases to consider Kentucky speak. cannot He into a strapped must recognizes law so-called ‘birth-related sit, he wheelchair has no control of i.e., torts,’ wrongful conception or preg point his The Bogans bowels. out in their birth, nancy, wrongful life. anything brief that Nathan do “cannot starting point, Appeals As a the Court of exist.” considered this Court’s decision in Schork complaint, Huber,3

In their main- Bogans malpractice medical case in tained that the defect was visible in the volving couple healthy had a who They ultrasound films. defen- undergone sued the despite having surgical steri dants, аlleging Schork, procedure. numerous theories of recov- lization this Court ery including malpractice, wrong- recognize refused concep claim, birth, ful wrongful and life. tion that gravamen stating “parents The cannot complaint damages upon that costs was the failure to recover based the of raising a interpret healthy unexpected the child correctly ultrasound and to following an from doctor an perform unsuccessful prevented amniocentesis test procedure.”4 sterilization Critical to the making the Bogans deci- informed holding damages Court’s that was were sion about continuation termination of speculative, any recovery highly as pregnancy. Kentucky the for The Cabinet by be offset to Services, the benefit the of Health for Department Medicaid normal, having healthy The Court child. Services, it intervened to recover sums had concluded that of for causes action not paid on behalf of The Bogan. Nathan only wrongful conception but all birth-re sought summary obstetricians judgment, torts were the exсlu lated matters within trial Bogans and the court that held the purview legislature.5 sive wrongful could not recover for life However, birth. the trial court Court to Appeals The of declined follow Bogans’ allowed the claim the con- majority, considering the Schork pain permanent suffering scarring and and about clusion and in suffered connection with the caesarean Instead, non-binding dictum. the proceed. delivery That claim remains of Appeals Court held that these claims pending in the Pike Circuit Court. Other- under neg- should examined traditional wise, summary judgment the made the ligence principles advocated in two appeal final proceeded. and Court dissenting opinions. Schork of ele- Appeals then considered whether the In summary, both trial courts the denied breach, of negligence duty, ments causa- claims, — parents’ child’s claim. As to the tion, in present and the —were the court in that trial the case held claims. limited be awarded to the claims, mother to the trial due caesarian. The Court of parents’ As the the court the the in Grubbs case authorized the could be Appeals stated that elements parents’ allege claim to full extent dam- who of satisfied held 3.Ky., S.W.2d at 863. 5.Id.

4.Id. at 862. breach, injury.7 As duty, consequent by depriving is physician negligent element, necessary Kentucky make a physi- them of information to the first care pregnancy duty degree decisions about a to use of informed cian has negli- practi- of for medical competent a viable cause action of a expected skill by the claims gence. As to made class under similar tioner of the same disabilities, Ap- of children Court Moreover, duty there is a circumstances.8 first peals concluded that the element fidelity upon physician imposed established, as could not be be- special relationship from the arises duty separate, independent there which has physician patient, tween physician to an unborn owed described as follows: been duty mother. owed apart phy- of a relationship patient his Thus, held not the children’s claims were most sician is its nature one According- of law. actionable as matter theory intimate. foundation is Its ly, Appeals remanded Court skilled, learned, physician that the yet proceedings, for further case body experienced in the afflictions case affirmed the dismissal of Grubbs ordinarily patient which the knows about grounds.6 upon statute of limitations nothing little or but which ANALYSIS him. There- importance most vital fore, necessarily place must patient agree Appeals with the

We Court reliance, faith and confidence specific presented great issues here were Schork, word, and acts of professional before the Court and thus advice duty the denying physicians’ its conclusions doctor. It is his controlling. life claims are not good act with utmost faith and the Rather, must the peril we decide whether at the of fairly truthfully speak the upon claims now before this Court for fraud being liable for held presented can upon facts be decided exist- and deceit.9 tort ing principles or deference duty phy that a This mandates legislative appro- initiative ‍​​​​​‌​‌‌‌​​​‌‌​​‌​‌‌‌​​​‌‌​​​​​​‌​‌‌‌​‌‌‌​​​​‌​‍be would more findings “fully on ex sician disclose his priate. From the claims pleadings, the opinions the he holds.”10 amination and negligence. sound in traditional medical obligated is Accordingly, physician Thus, analyzed claims under the should be the the patient diagnosis of inform negligence principles. traditional dangers or inherent therein known risks an the can make intelli patient shall so par

We first consider the regarding the course gent ents’ accord decision claims the defendants patient’s ailment ing to treatment.11 If primary negligence: elements Hadl, 183, merits, Ky., 816 S.W.2d 8. Mitchell v. 185 being 6. As case is resolved on Eblen, Ky., v. Blair (1991)(citing 461 S.W.2d necessary it will be to further review (1970)). 373 analy- Appeals Court statute of limitations sis. (quoting v. Hadl at 185 Adams 9. Mitchell Ison, (1952)); see Ky., S.W.2d 793 249 Co., Ky., 7. Mullins v. Commonwealth Ins. Life also, Am.Jur.2d, Physicians, Surgeons, and 61 Chemicals, (1992); & T M 839 245 S.W.2d (2002). Healers § Other 256-57 Westrick, (1974); Ky., Inc. v. S.W.2d 525 740 Fowler, 10. Mitchell at 185. Ky. Howard v. S.W.2d Bailey’s (1947); City Louisville v. Am.Jur.2d, Surgeons, Physicians, 11. 61 Guardian, (1936). Ky. S.W.2d 712 211-212, Healers §§ 318-19 Other beyond physician’s knowledge, ability expected service falls below level of or capacity to with treat reasonable suc- care and skill this negligence proxi- cess, physiciаn duty has a to disclose mately death, caused then all patient situation to to advise elements of a action malpractice have been the patient to a specialist.12 consult If a met.14 The parents here contend by physician discovers that an ailment is in- being negligently deprived pertinent curable and patient, fails so advise the information, they medical prevented were practitioner guilty negligence.13 from making an informed decision regard- ing pregnancy. continuation of the In applying the law to the instant Bogans specifically maintain that they had cases, viewing allegations all light known at the time of the ultrasound that most plaintiffs favorable to as required brain, their child would born without summary judgment disposi review of they sought an abortion while tions, the duty elements of and breach doing legally so was still a and medically feasibly by could be adequate satisfied option. available The Grubbses maintain proof. Pregnancy is medical condition done would have likewise had for which physicians treatment had they beеn of the hydrocephalus informed been sought to ensure health of the Thus, and spina plaintiffs bifida. con- fetus, mother and implicating the physi tend, injury taking unwant- duty cian’s of care that mandates full dis term, ed pregnancy to which was caused A closure. misdiagnosis withholding of negligent the allegedly misdiagnoses regarding information preg provided by argu- the defendants. These nancy, therefore, considered a ments are consistent various views breach duty care. To establish appearing to be a which recog- care, this deviation from the standard of nizes for wrongful causes of action birth.15 prove would need to that a reasonably competent obstetrician would We have been to Azzolino directed have observed the from defects the ultra Dingfelder,16 Supreme a case reported sounds and would have the re Court of in which North Carolina the court sults patients. to the This scenario is parent’s refused to allow a claim for analogous to physician’s a failure to diag wrongful birth a traditional tort under nose patient and inform a of a cancer or analysis. In its consideration of the ele bone, broken etc. of negligence, ments the court first as arguendo physician sumed Establishing the other element that defen negli- of gence, consequent injury, appears duty dants owed the a and that more complex. Kentucky, In if the physician’s duty breached. Although had been negligence); §§ 12. Id. at Phillips 213-214. child but for such v. States, (D.S.C.1981) F.Supp. United 544 13. Id. (actionable wrongful birth claim under South by parents Carolina child law of with Down’s Stutler, Ky., 14. Reams v. 642 S.W.2d 586 Perkel, syndrome); 87 N.J. Schroeder (1982); Baptist System, Wheeler v. Healthcare (1981)(actionable by par 432 A.2d 834 claim Inc., (6th Cir.2001). Fed.Appx. cystic ents whose was born with second child against physicians failing diag fibrosis for to See, Eisenbaum, e.g., Lininger 764 P.2d thereby cystic nose first child's fibrosis earlier (Colo.1988)(viable malpractice claim denying parents decision about sec informed blind, parents whose second was bom pregnancy). ond physicians negligent failing were to diagnose hereditary first child’s blindness as parents and that not have would had second 16. 315 N.C. S.E.2d 528 analysis of agree this element We with court considered causation Although injury element. problematic more because the defendants allege injury that their instant cases defect, genetic child’s did not cause the being deprived was in accurate medical the birth court nevertheless assumed that have led them to information proximate child was the result abortion, unwilling we are to seek an court physician’s negligence.17 The then equate opportunity the loss of an abortion analy that a stated ‘traditional’ congenitally in a resulting genetically or proceed beyond point sis could life, severely im impaired human even it would have to reach the ‘untrad- because injury. a cognizable legal paired, with “that the itional’ conclusion existence of by Judge This was Wacht- issue addressed injury cogni human life constitute an York in Appeals ler of the Court of of New regard zable to the child’s at law.”18 With dissenting his opinion claim, unwilling the court also to view that birth should claims equate the occurrence of human to recognized. explained He hold analysis injury under trаditional tort physician care liable prenatal recognize consequently refused product of such a defect is a distortion of action. cause of legal principles. fundamental Georgia Supreme The Court likewise problem heart of in these cases recognize wrongful refused to birth actions physician that the cannot be said analysis under a traditional tort in Atlanta defect. The disorder is have caused the Gynecology Group v. Abel- Obstetrics genetic any injury and not the result of Azzolino, son.19 As in the court believed negligently inflicted the doctor. duty breach elements it is incurable and was incurable addition satisfied, that a stating physician has a conception. Thus from the moment generalized duty impart relevant infor- alleged negligent doctor’s failure patient to a concerning mation his her during prenatal it examination detect condition,20 and that a has woman cannot be considered cause of con- by analogy cases which right constitutional make an informed dition those timely failed to make a procreative the doctor has regarding op- decision her curable held, however, diagnosis disease. Georgia tions.21 The court is an inexorable result handicap child’s analysis tort broke traditional of conception and birth. down on the elements causa- injury, Georgia tion. toAs court

agreed majority with Azzolino in its precedent, It at is a tort without hu- unwillingness say impaired existing with both precedents variance injury. man a legal life amounted to Indeed members of old and new. among them- court concluded that the matter are divided Georgia re- principle as to law legislature.22 to the selves what more suited Wade, (citing 410 21. at 561 Roe v. U.S. at Id. 17. Id. 533. (1973); 147 93 S.Ct. 35 L.Ed.2d 18. at 534. Id. Cote, N.H. 513 A.2d Smith v. (1986)). (Ga.1990). 19. Ga. S.E.2d alia, (citing, at 560 inter 61 Am.Jur.2d Id. Id. at 563. 358, Physicians, Surgeons, Other Healers (1981)). § 229 quires pay the doctor to damages parents to mitigate damages by plac- case. The liability limits this new ing the child for The diver- adoption.24 cannot But if predicated. be it is to be gence of damages views on reveals the appear limited at all it it can flaws that a may conclusion be only by drawing be arbitrary confined cognizable сonsidered a legally injury. majori- and artificial which a boundaries otherwise, If we held there would be ty of popular the court consider or desir- questions which regarding incurable birth able. This be alone should sufficient to defects, negligently left undiagnosed from pose problem indicate that these cases prenatal diagnostic procedures, should which only properly resolved warrant recovery: legislative body, not by courts of When will be allowed to decide law.23 their child is so “defective” that The foregoing analysis equally applica- given a they chance would have aborted ble to they, life claims and and, result, it while still a fetus then too, fail cognizable inju- must for lack their physician allowed to hold civilly ry. liable? only the fetus is [Is it] [w]hen Azzolino, Returning pointed the court gene the carrier of a deleterious and not uncertainty out the and lack of uniformity impaired itself [or] [w]hen the fetus jurisdictions recognizing is of one sex rather than the regarding the proper damages measure of other?25 duty mitigate damages arises Taylor thе court held Kurapati,26 from a recognize failure to “inju- that the use of the rule in benefits deter- ry” they compensate seek to is not an mining offset of in wrongful birth strictly under a applica- traditional applied cases could slide into quickly eu- theory. Although tion of tort under tradi- history After a brief genics.27 tional tort law defendants liable for all eugenics early American movement of the reasonably foreseeable results of their twentieth century, espoused repro- negligence, plaintiffs in wrong- successful discouraged duction of the “fit” and ful birth actions have received various “unfit,” birth of court noted: types damages ranging from the ex- ears, To our close of the twentieth penses resulting impairment century, this talk of the “unfit” and of child, not the raising normal costs of decidedly jarring ring; “defectives” has a raising the entire cost of the child are, all, we after such lethal non- above reduction of raising for the cost a healthy sense. But are we? We know now that child, to only parents’ suffering own we all genes have at five recessive least аnd mental anguish resulting from the map but ... when scientists the human expense child’s birth but not the of raising genome, many po- will unveil more the child. There also been no has consen- tentially harmful in each of us ... genes sus as to whether the should be diabetes, [p]sychoses, hypertension, ear- by any reduced or emotional or offset oth- cancers, ly- late-appearing degener- and through er benefit to life, disorders, duty susceptibility genes child’s or there is a ative for on Schwartz, 23. Becker v. 46 N.Y.2d 25. Id. 535. 807, 816, N.Y.S.2d 386 N.E.2d 26. Mich.App. 600 N.W.2d 670 (1978). at 534—535. Azzolino Id. at 688. to the Pike Cir- is remanded diseases, for but case genes vari- communicable adjudication of claims deficiencies, genes, for aging and cuit Court ous mental suffering permanent and will be and scar- pain other variations disorders for and we then the tort caesa- ring ascertained. Will see in connection with the suffered wrongful physicians birth extended delivery. rean section neglect genetic evi- misinterpret who or GRAVES, COOPER, and thereby fail to extend dence and JOHNSTONE, JJ., concur. un- eugenic of a abortion option “un- suspecting parents genetically a J., WINTERSHEIMER, by concurs fit” or “defective” child?28 separate opinion. our view that questions These reinforce KELLER, J., separate opinion files in exercise restraint great courts should in part dissenting part and concurring complex new causes recognizing such and STUMBO, J., joins. in which of action. opinion Concurring by Justice present interesting an Bogans WINTERSHEIMER. aspects to the issue unrelated tort claims, yet attention. The which merits opinion, I concur with the patients Bogans believe should have my additional reasons for wish to state physi breach contract action Obviously, the in this concurrence. claims charged diagnos cians who offered and for logic action involve macabre twist of yet prenatal testing, allegedly tic who did ordinary them apart which sets correctly. perform those services De stated, Simply action. holding our tort claim as spite denying the the life of a child cannot constitute law, physician a matter of who contracts recogni- thus can be no there service, charges prena for a as a such wrongful tion life of either consequent opinion tal ultrasound and as birth claim. ultrasound, is results of the liable years twenty ago As almost stated regard. for breach of contract in this Huber, Ky., 648 Schork v. S.W.2d physicians do not believe should be We (1983): of any proven respon relieved contractual life Wrongful is a contradiction sibility to report patients the accurate contrary public It is terms. diagnostic procedures, results of even if expressed policy state In the condition is the ab “incurable.” interpreted by the legislature and conclusion, sence of such a we would be courts. physicians per forced to hold Schork, a clear and unmis- supra, sends procedures form and charge diagnostic interpretation of message. The takable report diag if the they whatever want errone- Appeals Schork the Court of is condition, phy nosis is of an incurable wrong- unacceptable. A claim for ous and paid legally charge sicians could and be contrary value ful intrinsic perform. did not services It sanctity place of human life. would case, judgment final Grubbs position affirming the courts-in the dismissing all Knox Circuit court death, nonexistence, to life. preferable case, claims is In the reinstated. reluc- “nearly universal” Because judgment dismissing final reinstated, tance, Hosp., Chicago life claims is Williams Univ. Id. 80, 179 Ill.2d 793, 227 Ill.Dec. 688 N.E.2d by the United States Declaration of Inde- 130, (1997), to adopt premise pendence protected that by Section One of devalues human Kentucky life so completely, Constitution. Any quality life ethic overwhelming majority courts, favors the healthy life which over infirm, issue, have considered the able-bodied over the rejected have dis- abled and the intelligent mentally claims for over the e.g. life. See Elliott v. challenged. If logically extended, Brown, it could (Ala.1978); 361 So.2d 546 Goldberg produce a culture that condones the exter- Ruskin, 482, 113 Ill.2d 818, 101 Ill.Dec. mination of the weak the strong or the (1986); 499 N.E.2d 406 Bruggeman v. powerful. more Schimke, 245, 239 Kan. 718 P.2d 635 (1986); Taylor v. Kurapati, 236 Mich.App. regime The Nazi under Adolph Hitler is 315, (1999); 600 N.W.2d 670 Azzolino v. a not too distant reminder of this kind of Dingfelder, 103, 315 N.C. eugenic S.E.2d approach. Unfortunately, ‍​​​​​‌​‌‌‌​​​‌‌​​‌​‌‌‌​​​‌‌​​​​​​‌​‌‌‌​‌‌‌​​​​‌​‍such (1985); Dwivedi, Hester v. thoughts 89 Ohio St.3d are not foreign limitеd to nations 575, (2000). 733 N.E.2d 1161 but can also be found in writings Justice Oliver Wendell Holmes in Buck v. The reason for rejecting wrongful life Bell, 200, 274 U.S. 47 S.Ct. 71 L.Ed. claim simply does not involve the difficulty (1927), which approved of sterilization in applying traditional concepts tort such mentally incompetent. Taylor, su- breach, duty, injury, proximate cause pra, calls to our attention the influence and damages. Instead, paramount experiments Hitler’s with sterilization reason for rejecting a wrongful life claim had on the eugenics American movement. involves the very dignity of the human Eugenics espouses reproduction person and the very sanctity of human life fit over the unfit discourages the birth itself. It is basic to our culture that hu- Bowman, of the unfit. The Road to Eu- man precious. life is recognize To wrong- genics, 3 U. Chic. L. Sch. Roundtable 491 ful life as a tort would do violence to that (1996). purpose completely and is contradictory to It significant to observe that even in the belief that precious. life is jurisdictions three which have rec Medically, separate existence of the ognized life, clаim for all have unborn child recognized by has been refused to permit an general award of highly respected widely used medical Sortini, damages. Turpin See 31 Cal.3d textbook, (16th Williams Obstetrics Edi- 182 Cal.Rptr. (1982); 643 P.2d 954 tion, 1980). Appleton-Century-Crofts Cillo, Procanik v. 97 N.J. 478 A.2d text observes that “we have an entered (1984); Parke-Davis, Harbeson v. era in which the fetus can rightfully Inc., 98 Wash.2d 656 P.2d 483 considered as a patient second ... fetal di- The reason for this is the same reason that agnosis and therapy have now emerged as a majority jurisdictions rejected legitimate tools the pos- obstetrician must completely, claims namely, sess.” measuring the value of an impaired compared life as argument nonexistence is a task there is a kind of beyond mortals, mere “quality of life” ethic is without merit. jurors. Harbeson, judges supra. rejected This Court has quality of life philosophy in By Through DeGrella A claim wrongful reject- life must be Elston, Ky., Parrent v. 858 S.W.2d 698 ed because it would definitely discriminate (1993), recognized individual persons disabled and could lead to has an inalienable right to life as declared a eugenic culture where the “unfit” are more effect, and claims have some differences but In two disposable. doctors made extremely significant ele- be An professionals would similarities. other healthcare wrongful and life identifying underlying for and eliminat- ment both not punished subjective is a deter- wrongful womb. birth claims any disabled children ing Comment, disability, The retardation Kennedy, mination about Bernadette See If impairments of the unborn child. Recognition other Trend toward Judicial of View, law, consistency in both Dissenting A is to be Wrongful there Life: (1983). ap- life birth actions L.Rev. 473 Such U.C.L.A. rejected. permit To a claim inherently dangerous. What must be proach un- birth would recognize compen- wrongful will law “defect” human that all proposition the line as to what dermine sable? Who will draw race, religion, persons, and what is not Will matter is severe severe? precious worthy respect. physical impairments ability, as well as mental involved? GRAVES, J., joins concurring this many It so-called is obvious opinion. immense disabled and do have lives of KELLER, Justice, and to others. Such in Part Concurring value themselves adop- envisioned in the concept clearly Dissenting in Part.

tion of the “Americans with Disabilities termination in- pregnancy [T]he Congress Act” the United States sever- social volves controversial divisive year’s ago. al Nonetheless, Supreme issues. held Court of United States has wrong-

It is also clear that claim for constitutionally secured a woman has a recognized ful birth should not be because pregnancy. It fol- right to terminate requires some it that life itself constitute plaintiff from Roe that [mother] lows legal injury. Taylor kind of The court in seek, may pro- may and the defendants clearly expressed a I view that may vide, information and advice adopt regarding wrongful cases: birth of that right. affect the exercise very “wrongful sug- phrase birth” issue un- basic social and constitutional gests that birth of a child disabled resolved; has been we derlying case wrong pre- and should have been already traveled ground need not cover accepts premise vented. If one interpretation a court whose that the birth of one “defective” Today binds us. National Constitution prevented, then it is should have been whether, only given the exis- we decide step accepting short recognized of choice right tence of premise that the births of classes Roe, law allow the our common should similarly “defective” children should duty to care development of a exercise just prevented, for the benefit on providing information that bears but also the benefit that choice.1 society pro- through as a whole “public tection of the This welfare.” Kentucky, ac- malpractice a medical eugenics. operating principle is the trav- merely a “branch of well [the] tion is negligence],”2 road common law rejected wrongful [of claim eled Taylor plaintiff must malpractice a medical wrong- relationship on its close based prima facie case— recognized that the same ful life. That court demonstrate Rice, Cote, Ky., & Trust Co. N.H. 513 A.2d 2. Farmers Bank 1. Smith omitted). (1986) (citation S.W.2d 694

consisting duty, breach, causation, cognizable legal strate a injury and there- injury required in any negligence case. fore that the trial holds courts should — Thus, summary a medical malpractice plaintiff granted judgment must for the defen- “prove that all of given the treatment was below dants as to the tort against claims degree expected Although agree majori- the of care them. I and skill of a with the reasonably ty’s competent conclusion the claims on practitioner brought Bogan the behalf of Carlei Grubbs and negligence proximately in- Nathan caused do not demonstrate an jury[.]”3 Appeals Court of below con- that, recovery tort, available in is I hold cluded of the pre- various tort claims jury that a viable issue exists as to the sented these appeals, only combined the Bogan parents’ claim in their timely-filed complaint tort claim prima for which a negligence the defendants’ “deprived facie case was supported by the evidence— opportunity in- [them] to make only and thus the appropriate tort claim formed decisions as to whether to seek jury resolution —was Gretchen treatment or terminate (“the ’) the pregnancy.” Bogan’s Daniel al- parents” agree I Accordingly, with the Court legation that their physicians negligently Appeals’s holding in I entirety, its reproductive rights interfered majority opinion thus dissent from the they deprived when them of information the that I extent would reverse trial the necessary to make an informed decision summary partial judgment court’s carry by the fetus term Bogan parents the and remand the incorrectly interpreting an ultrasound ex- parents’ negligence action for trial in the failing amination and perform additional Pike if my opinion, Circuit Court. In prenatal testing. A majority of this Court jury one or more of finds the defendants concedes that “the claims should be ana- Bogan parents, liable to the the trial court lyzed under princi- traditional negligence permit Bogan parents should to recov- ples”4 jury concludes that a er for the elements of reasonably Bogans’ determine that complaint listed in the that are supported physicians by breached a of care duty at the evidence trial. “misdiagnosi[ng] withholding medi- cal information regarding pregnan- view, my majority concurring In A cy!.]”5 majority of Court con- opinions analytical suffer from a common cludes, however, Perhaps confusing none of the flaw. misled in these combined can demon- at- appeals “wrongful often birth” label6 Stutler, 586, Ky., duty 3. Reams v. physician's 642 S.W.2d 588 in terms of reason Hadl, (1982). Ky., See ably prudent patient’s expectations. also Mitchell v. 816 Can See (1991). Wilson, S.W.2d 185 esi 158 N.J. 730 A.2d (1999). Family Grubbs Barbourville Health Cen Milunsky, 6.See Viccaro v. 406 Mass. P.S.C., ter, Ky., 120 S.W.3d 682 at (1990): N.E.2d Later, however, life/birth/concep- 5. Id. [wrongful labels These opinion expresses Any about tion/pregnancy] reservations instructive. (“If life, scope potential liability. "wrongfulness” we Id. at lies not in the otherwise, birth, questions conception, pregnancy, held there would be re but or the defects, garding negligence physician. which incurable left in the harm, itself, negligently undiagnosed prenatal diag any, from if not the birth procedures, nostic should warrant recov effect of the defendant's on emotional, ery.”). response, physical, parents’ I would observe that and financial allayеd by defining well-being concerns resulting such should be denial of disabilities, claims, those justices defect-related to such who tached only they are are because claim so available today deny Bogan parents’ do pa- analysis violation of physician’s result of a improperly that under a skewed procrea- make an informed right tient’s to injury allegation conflates claimants’ tive decision: damages. with their ultimate claims for action is majority concurring opinions wrongful mis- A birth cause of The to deter- legal inju- right on a woman’s Bogan parents’ predicated characterize con- not to very mine for herself whether or ry Bogan’s Nathan existence7 as Per- her when, fact, pregnancy. tinue or terminate plaintiffs allege in either to right a of then- own sons “have physicians’ legal injury suffered reject parental relationship, a accept or parental right invasion of the to “negligent by right of that deprivation to of child decide whether avoid the birth a creates negligent misconduct of another congenital with defects.”8 Stated other- in The parents.” a action cause of wise, both and concur- while a inter- right protects distinctly personal ring opinions attempt to frame the rele- est. before vant issue us whether Nathan legal in of the in self-

Bogan’s injury constitute a violation interest wrong- prima undergirds of a facie case for medi- a the context determination malpractice, not ful birth cause of action consists cal “we need find defects,’ ‘life, make the parents’ opportunity even life with consti- lost to severe or not to legal injury recognize personal tutes a in order to decision whether might a child give the ... claim for relief’9 because birth to who “[t]he in a resulting injury plaintiff parents lies birth The claim defects. being deprived opportunity ‍​​​​​‌​‌‌‌​​​‌‌​​‌​‌‌‌​​​‌‌​​​​​​‌​‌‌‌​‌‌‌​​​​‌​‍physician can arise a birth action when adequate terminate coun- genetic to make an informed fails provide decision Supreme seling, to detect a fetal pregnancy[.]”10 Court fails discoverable thereof, Jersey parents defect or to inform recеntly of New discussed the theo- or properly, fails test malpractice interpret results retical basis a medical being of a child born with that, fails to warn explained claim in this context and defect. although plaintiffs compen- one facet of a in- may patient’s protectable

sable such cases consist of Because the extraordinary of self-deter- personal right costs associated with the terest is the mination, duty the doctor’s of disclosure care and education of a child with birth- opportunity parents equate right of their ... to decide the loss of abortion congenitally resulting genetically a child to bear tin- to bear or whether a child in a or genetic life, severelyimpaired or paired other defect. even with human States, added)); v. cognizable legal injury." (emphasis See also Greco Untied Nev. (1995) ("It (explaining (Wintersheimer, J., 893 P.2d 348 n. 5 concurring) at 693 Id. "wrongful originally play life" was on the also clear that claim is statutory wrongful recogniz death action and recognized requires it should not be because ing net thе observation that "the effect legal constitute kind of life itself some 'spawn has these terms been to confusion’ injury.”). vision."); impair judicial Lin and distort Eisenbaum, inger 764 P.2d Cote, supra note at 348. 8. Smith v. ("The (Colo.1988) term[] use of 'wrongful serves to birth' more often obscure Eisenbaum, Lininger supra note 6 them."). issues than to elucidate Delaware, v. Medical Center Family 10. Garrison v. Barbourville Health Cen- 7. Grubbs Inc., (Del.1989). P.S.C., ter, ("[W]e unwilling supra 581 A.2d at 689 must be sufficient to her to enable make elusion that “a life injury” cannot be an an informed and decision meaningful not relevant to an evaluation of the merits concerning whether or continue of their cause of action.12 There “no pregnancy. hold reason to that as a matter of law

Compensable in a act negligently those who providing birth case include the [prenatal] emotional care cannot cause harm”13 be- deprivation caused a holding cause “[s]uch ‘leave[] option reject of “the to accept pa- recovery void in the area of for medical ” relationship rental with the child .... mаlpractice and of dilute[] the standard damages These special also include the professional growing conduct’ in a in- expenses medical raising attributable to creasingly important professional field.”14 impairment. a child with a congenital addition, a correct understanding of the however, Damages, encompass do not (1) plaintiff’s legal injury: non exposes as the birth or congenital impair- defect any sequitur inability concern to about the ment itself.11 demonstrate causal link physi- between a plaintiffs’ negligence Once the is cian’s and the child’s injury properly abnormali- 15 (2) ties; conceptualized helps as an invasion their re- to illustrate the types productive autonomy, majority’s cases;16 con- that in are available such Wilson, supra 11. Canesi v. 5 at note 810-811 We note suffered. that the mother is not omitted). Cote, (citations claiming See also Smith v. that her child’s defects were supra by ("Although physician's negligence; note 1 at 348 it involves an caused her rath- allegation er, malpractice, physician’s negli- it is not claims that her she arising physical injury. gence kept ignorant claim from It is in- her of those defects negligent based negligence stead on a of the invasion and that it was this right parental right to decide to avoid the whether caused her to lose her to choose defects.”). congenital carry of a child birth with to to term. Wilson, supra See also Canesi v. note 5 at 818 Johnson, See 12. Bader v. 732 N.E.2d 1212 ("The appropriate proximate question, cause (Ind.2000): therefore, negli- not whether the doctor's Inc., Group, Cowe v. [In Forum defect; gence congenital caused the fetal (Ind.1991)] we N.E.2d were un- by expressly harm suffered the child is willing plaintiff proceed to to allow child Rather, compensable. to the determination action, part with this cause of because it inadequate be made whether the doctors' damages depen- involved "a calculation of deprived parents deep- disclosure of their upon dant of an im- relevant benefits ly personal right to decide for themselves paired opposed life as to nо all ... a give whether to birth to a child who could comparison equipped the law is not to possibly physical afflicted abnor- Here, however, injury make.” is the Banach, mality.”); Keel v. 624 So.2d opportunity ability lost terminate the to (Ala.1993) ("The nature of the tort pregnancy. [plaintiffs] to Failure allow the nothing birth has to do with wheth- proceed to with their claim would "immu- er a defendant caused the or harm liability nize those in the medical field from but, rather, child, with whether the defen- performance particular their in one area proximate negligence was the cause of dant’s omitted). (citations practice.” of medical parents' being deprived option of making meaningful ... an deci- informed Cote,supra Smith v. 347. 13. note 1 at pregnancy or to sion either to terminate the child.”). give potentially (citation omitted). to a defective Id. States, supra See Greco v. United note 6 at Cote, supra 16.See Smith v. note 1 at 349: ("When parents opportunity denied the decision, argument reject important personal We also ... make this inter- [рlaintiff physicians may impaired, including did not cause mother's] ests an interest might by injuries avoiding special expenses necessitated [she] Daniel (3) Bogan or court of Gretchen the trial one or both demonstrates that Today, help Nathan[.]” care for parents’ correctly dismissed the Grubbs misconstruing the nature of the 413.140(l)(e) it because claim under KRS effect, holding, claim and parents’ year more than one after was filed can dem- Bogans’ position in the parent discovered, to Carlei’s prior injury necessary prove an onstrate birth, physicians failed to had negligence, case for medical prima facie in time them of disabilities inform Carlei’s future holding prevent this Court’s will them to make election whether recovering position in this pregnancy.17 terminate physicians’ for their any tort in- Kentucky permits law of ‘[o]ne “The negligence. another jured majori- I the relevance of question full for all compensation of him recover opin- divergence ty’s observation neg- damages proximately caused measure proрer as to the ion exists ”18 Bogan In their ligence.’ complaint, I find damages in such cases. (1) sought compensation pain for: parents suggestion for the implicit warrant permanent suffering scarring and must “consen- this Court await nationwide Bogan of the Gretchen suffered as result compensation we evaluate the sus” before emergency required caesarian section injured Kentucky plaintiff. due to (2) delivery;19 “[pjresent Nathan’s effect event, however, I would observe damages cost of relating and future to the all as the at “almost in cases such one bar ex- necessary reasonable to recover parents have allowed the courts care, special for Na- penses, and treatment negligent physician the extraor- against (3) than; suffering emotional caused medical, educational, and other ex- dinary (4) Nathan”; the afflictions and are “[l]ost that are associated with penses Allowing expenses wages consequences due to the need disorder.”20 holding is Although majority’s defects ultimate the condition of child born with 19. prima Bogan parents prove a that the cannot they cannot facie case because Although parents did not know Grubbs cognizable legal injury, the ma- demonstrate time, damages the full extent of their at this acknowledges impli- case jority the law of the injury they legal were aware of at the their bar, present at which the case cations physicians, hands of their and the statute of Bogan appeal plaintiffs' arose from the began running upon that discov- limitations granted court’s final order that had the trial 413.140(2) ("[T]he ery. action KRS cause of defendants, summary judgment partial to the shall be deemed accrue at the time the summary par- judgment as to this but denied injury is first discovered in the exercise of or Accordingly, damages. claim for ticular care discover- reasonable should have been Bogan appeal to the majority remands the Inc., ed[.]”); Hospitals, Wiseman v. Alliant "adjudication claim for trial court for of their (2001) (“ ‘Injury,’ Ky. 37 S.W.3d 712 suffering pain permanent scars suf- any legally pro- as ‘the is defined invasion of sec- the caesarean fered in connection with Thus, injury in interest of another.' tected Family delivery,” Grubbs v. Barbourville tion malpractice to the the medical context refers Center,P.S.C., supra at 691. Health wrongdoing, malpractice it- actual or the rule, discovery is the ... Under the it self. at 10 Milunsky, supra note 6 20. Viccaro knowledge date the actual or constructive if cases). (collecting G. v. Caser See also James running triggers which (1985) ia, 175 W.Va. S.E.2d limitations.”). statute of (collecting observing "[i]t cases and McMillan, recognized wrongful birth generally in a Ky., S.W.2d Smith v. action, extraordinary may (1992) (quoting Packing v. Den recover Field Co. ham, (1961)). necessary to defect and treat the birth 342 S.W.2d costs recovery extraordinary expenses ery as- cases, emotional in such sociated with philo- argument the defect avoids the reasonable can be made that at sophical objections least Gretehen weighing quality satisfy could Ken- tucky’s physical contact requirement and is consistent public policy: emotional damages recovery.22 Finally, The economic solely burden related Bogan parents’ wages lost and other the physical defects of the child ais damages should be recoverable even under different matter which is free from the existing precedent.23 Thus, I would allow objection above [that courts cannot parents’ proceed claim to “measure life with against defects no life trial, and permit them to recover expenses all].” These he within the any of the items of named proof

methods of by which courts are complaint. accustomed to determine in per- awards I will conclude this dissent where I be sonal injury public policy cases. No ob- gan by observing that the issue before us — stacle interposed should be to that re- does not “requir[e] our decision covery. It is impossible for us justify public policy either for abort a policy which deprives at once par- Regardless ion.”24 personal of one’s be ents of information concerning liefs propriety morality elect to terminate the pregnancy likely of eugenic procedures, abortion “[u]nder to produce a child with a body, defective Roe, prospective parents may have consti a policy which in requires effect that the tutionally cognizable reasons for avoiding embryo deficient gesta- be carried to full the emotional and pecuniary burdens that tion until born, the deficient child is and attend the birth a suffering from policy recovery then denies from defects,”25 and who do not “[t]hose the tort-feasor of treating costs of and many wish undertake burdens asso caring for the defects of the child.21 ciated with the birth and continued care of

Although jurisdictions different have a right such child have the legal adopted different approaches to the recov- pregnancies.”26 terminate their The ma any additional medical or procedure,” educational costs zation appeal par- in an a (emphasis attributable to summary the birth judgment permitted defect[J” tial added)). proceed damage with other claims, e.g., expenses, "the mother's medical Theimer, 21. Jacobs v. 519 S.W.2d pain suffеring, earnings and and loss of in (Tex.1975). Cote, See supra also Smith v. note birth.”); connection Maggard with the child's (explaining 1 at 349 "extraordinary that the McKelvey, Ky.App., 627 S.W.2d expenses only” remedy premised expec- (1982) on (holding, malpractice in medical damages tation authorized under contract law involving following case an unwanted birth and requiring appli- avoids windfall without negligent vasectomy procedure, that "the rule); Lininger cation of the benefit v. Eisenb- general spe- are limited to the and aum, supra note at6 1207. pregnancy cial incidental to the birth, as, pain suffering, such loss of Shein, Ky., 22. Deutsch v. 597 S.W.2d 141 consortium, hospital expenses, medical and Johnson, supra See also Bader v. note wages.”). and loss of 12 at 1222. Theimer, supra 24. Jacobs v. note at 848. Huber, Ky., 23. See Schorlcv. 648 S.W.2d 861 (1983) (denying recovery "damages Cote, based 25. supra Smith v. note 1 raising healthy on the unexpect- costs States, following ed child ... supra unsuccessful sterili- 26. Greco v. United note 6 at 349. not, us, has simply place no jority concurring opinions questions do before analysis. course, dispute existing fact that under found precedent right privacy par protects States Constitution

United STUMBO, J., joins. Nonetheless, reproductive choices.

ents’

by characterizing parent’s decision pregnancy

terminate a elimination alluding

the “unfit” or “defective” and

Nazi-style eugenics programs, the ‍​​​​​‌​‌‌‌​​​‌‌​​‌​‌‌‌​​​‌‌​​​​​​‌​‌‌‌​‌‌‌​​​​‌​‍concurring opinions outside step

judiciary’s proper inappropriately role personal opinions regarding

volunteer FLORENCE, Christopher Lee morality choices the Grubbs Appellant, say Bogan parents if physicians fully made had informed Moreover, “tyranny slip them. Kentucky, COMMONWEALTH

pery slope” argument implicitly referenced Appellee. today’s concurring opinion27 province means the of those who exclusive No. 2001-SC-0658-MR. trumpet sanctity of life. As counter vailing Margaret I would perspective, Kentucky. offer Supreme Court Atwood’s as a The Handmaid’s Tale28 21, 2003. Aug. powerful vision of the that could dystopia in a exist where citizens’ individual world Rehearing Dec. Denied rights of are com procreative freedom event,

pletely disregarded. “[t]he particular

fact claim involves

some moralistic and social hav overtones

ing contraception to do with childbirth permitted

should to become

handmaiden for the destruction of our es Issues

tablished notions of tort law.”29 are unquestionably

like one bar

difficult, analysis demand careful

within the law. Person framework of ideology, only

al adds to the difficul unnecessary

ty by additional and breeding expense legal

divisiveness at the ATWOOD, TALE Family Cen- 28. M. THE HANDMAID’S 27.Grubbs v. Barbourville Health J., ter, P.S.C., (Wintersheimer, supra at extended, (“If concurring) logically it could produce a extermi- culture that condones the Wierdsma, Beardsley 650 P.2d strong weak or the more nation (Rose, C.J., specially). (Wyo.1982) concurring added)). powerful.” (emphasis

Case Details

Case Name: Grubbs Ex Rel. Grubbs v. Barbourville Family Health Center, P.S.C.

Court Name: Kentucky Supreme Court

Date Published: Aug 27, 2003

Citation: 120 S.W.3d 682

Docket Number: 2001-SC-0563-DG, 2001-SC-0961-DG, 2001-SC-0571-DG, 2001-SC-0959-DG

Court Abbreviation: Ky.