Case Information
*1
[This opinion has been published in
Ohio Official Reports
at
v
. D WIVEDI ET AL ., A PPELLEES .
[Cite as
Hester v. Dwivedi
,
cause of action in medical negligence based upon the failure of a doctor to inform the child’s mother during pregnancy of test results indicating a possibility that the child would be born with defects.
A child born with physical or other handicaps does not state a cause of action in
medical negligence based upon the failure of a doctor to inform the child’s mother during her pregnancy of test results indicating a possibility that the child would be born with defects, thereby depriving the mother of the opportunity to make a fully informed decision as to whether to obtain a legal abortion.
(No. 99-683—Submitted January 26, 2000—Decided September 6, 2000.) A PPEAL from the Court of Appeals for Hamilton County, No. C-970723. __________________ Lawrence and Patricia Hester initiated this action by filing a complaint asserting medical negligence claims against various defendants, including appellees Leela Dwivedi, M.D., Luis R. Saldana, M.D., and Dwivedi & Dwivedi, M.D., Inc. The Hesters alleged that the defendants did not adhere to required standards of care during Patricia’s pregnancy prior to the birth in 1993 of their daughter, Alicia Hester. Lawrence also asserted claims on behalf of Alicia in his capacity as her natural father and next friend, and this appeal concerns only those claims. As is relevant herein, the Hesters alleged that Patricia employed Drs.
Dwivedi and Saldana to provide her with prenatal care. The Hesters claimed that Patricia underwent multiple prenatal tests, including ultrasound, alpha-fetoprotein *2 (“AFP”) blood testing, and amniocentesis in the course of her pregnancy. The Hesters claimed that appellees breached the required standard of care in negligently informing, or failing to inform, them of the prenatal testing results. They further alleged that the test results showed positive indicators of birth defects in the fetus Patricia was carrying, and that their daughter, Alicia, was, in fact, born with spina bifida and other complications. The Hesters further asserted that Alicia will incur medical expenses, wage loss, impairment of earning capacity, and pain and suffering as an adult in the future as the direct and proximate result of the defendants’ negligence.
{¶ 3}
Ultimately, appellees moved for judgment on the pleadings pursuant to
Civ.R. 12(C). Appellees argued that, under Ohio law, Alicia Hester had no right to
recover damages associated with her genetic abnormalities, in that Ohio does not
recognize a claim for “wrongful life.” Quoting
Azzolino v. Dingfelder
(1985), 315
N.C. 103, 107,
{¶ 4} Appellees further moved for judgment on the pleadings in their favor as to the claims of Alicia’s parents. The trial court granted the appellees’ motions for judgment on the
pleadings as to the claims of the minor, Alicia, but denied their motions as to the claims of Lawrence and Patricia Hester. The trial court found no just reason for delay of appeal of that ruling. Accordingly, in his capacity as natural father and next friend of Alicia
Hester, Lawrence Hester appealed the trial court’s order entering judgment in favor of the appellees as to his daughter’s claims against them. The court of appeals affirmed. The cause is before this court upon the allowance of a discretionary
appeal.
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Santen & Hughes and John D. Holschuh, Jr.; Gehrig, Gelwicks & Eynon and Thomas A. Gelwicks , for appellant.
Roetzel & Andress , Ann Ruley Combs and Karen A. Caroll , for appellee Leela Dwivedi, M.D.
Lindhorst & Dreidame and Michael F. Lyon , for appellee Luis Saldana, M.D.
Mark Stephen Lally, urging affirmance for amicus curiae Ohio Right to Life Society, Inc.
Lancione & Lancione, P.L.L. , and John A. Lancione , urging reversal for
amicus curiae Ohio Academy of Trial Lawyers.
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M OYER , C.J. The sole issue presented in this appeal is whether Alicia’s wrongful life claims are sufficient to withstand a motion for judgment on the pleadings filed pursuant to Civ.R. 12(C). We hold that they are not. Pursuant to Civ.R. 12(C), Alicia is entitled to have all the material
allegations in her complaint, with all reasonable inferences to be drawn therefrom,
construed in her favor as true.
Peterson v. Teodosio
(1973),
Suldana received test results while her mother was pregnant that indicated a possibility that the fetus she was carrying was not developing normally, so that, if the pregnancy continued, the child (Alicia) would be born with congenital abnormalities. Alicia asserts that, because the pregnancy was not terminated, she was in fact born, and born with severe physical and neurological deficits. She claims that she will be “forced to incur extraordinary medical and educational expenses throughout the course of her life,” for which the appellees should be held liable. She suggests that her mother would have terminated the pregnancy had her parents been advised of the test results, so that she, Alicia, would not have been born and would never incur extraordinary medical and other costs. These allegations are either alleged in the complaint or are reasonable inferences from it. We accept them as true for purposes of reviewing appellees’ motions for judgment on the pleadings. This court has previously disposed of cases bearing factual similarities
to the one at bar. While these types of cases are commonly labeled “wrongful life,” “wrongful pregnancy,” “wrongful birth,” or “wrongful living” actions, they are not governed by statutory law as are wrongful death actions. They remain, at their core, medical negligence actions, and are determined by application of common-law tort principles. As have other courts and commentators, we recognize that overreliance
on terms such as “wrongful life” or “wrongful birth” creates the risk of confusion in
applying principles of tort law to actual cases, and may compound or complicate
resolution of the case. See
Greco v. United States
(1995),
{¶ 13} Rather, such cases are properly decided by applying the same legal analysis employed in any medical negligence claim. As in negligence claims in general, liability based on the alleged negligence of a professional requires proof of the following elements: duty running from the defendant to the plaintiff, breach of duty by that defendant, damages suffered by the plaintiff, and a proximate cause relationship between the breach of duty and the damages. In Bowman v. Davis (1976), 48 Ohio St.2d 41, 2 O.O.3d 133, 356
N.E.2d 496, we first recognized a right for parents to recover where medical negligence resulted in the birth of children. Our holding was confined to a determination that public policy did not preclude parents from bringing an action in tort against medical providers following a negligently performed and unsuccessful sterilization procedure. Such an action is generally characterized as presenting a “wrongful pregnancy” claim. Similarly, in Johnson v. Univ. Hosp. of Cleveland (1989), 44 Ohio
St.3d 49,
child-rearing expenses in a wrongful pregnancy action brought by parents. “[I]n a ‘wrongful pregnancy’ action, Ohio recognizes the ‘limited damages’ rule which limits the damages to the pregnancy itself and does not include child-rearing expenses. The extent of recoverable damages is limited by Ohio’s public policy that the birth of a *6 normal, healthy child cannot be an injury to her parents.” Id. at paragraph two of the syllabus .
{¶ 17} Today we are presented with an action presenting the legal issue of whether an individual who was not born as a normal, healthy child, but rather as a child with birth defects, has herself suffered legally compensable injury in that she was born rather than aborted. In short, we are asked to hold that such a child may recover damages for the “injury” of having been born. In both Bowman and Johnson , the plaintiffs were parents seeking
damages after failed sterilizations. In neither case did the children who were born in
spite of the failed sterilization procedures make claims themselves. In
Bowman
we
did, however, distinguish between wrongful pregnancy cases, brought by parents, and
wrongful life cases, brought by children. We noted that “[b]ecause [wrongful life]
claims force courts to weigh the value of being versus nonbeing, courts have been
reluctant to recognize this cause of action.”
Bowman
,
judgment on the pleadings against a minor child born with spina bifida who asserted
a wrongful life claim similar to Alicia’s. After considering existing Ohio precedent,
the court determined that it was “not prepared to say that life, even with severe
disabilities, constitutes an actionable injury.”
Flanagan v. Williams
(1993), 87 Ohio
App.3d 768, 776,
to respect the expressed wishes of a patient to refuse unwanted medical treatment. We also accepted, for purposes of our review of a summary judgment, that Anderson had demonstrated a genuine issue as to whether the medical defendants had breached that duty. However, Anderson’s claim failed for lack of demonstrating a genuine issue as to the remaining negligence components: damages and causation. The crux of Anderson’s claim was the assertion that patient Wilson had
suffered injury in that the length of his life had been prolonged against his will as a
result of a breach of professional duty. We held that the law does not sanction an
award of damages based on the relative merits of “ ‘being versus nonbeing.’ ”
Anderson
at 85,
“ ‘ “Proximate cause” ’—in itself an unfortunate term—is merely the limitation which the courts have placed upon the actor’s responsibility for the consequences of the actor’s conduct. In a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events, and beyond. But any attempt to impose responsibility upon such a basis would result in infinite liability for all wrongful acts, and would “set society on edge and fill the courts with endless litigation.” As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. Some boundary must be set to liability for the consequences of any act, upon the basis of some social idea of justice or policy.
“ ‘This limitation is to some extent associated with the nature and degree of
the connection in fact between the defendant’s acts and the events of which the
plaintiff complains. Often to greater extent, however, the legal limitation on the scope
of liability is associated with policy—with our more or less inadequately expressed
ideas of what justice demands * * *.’ (Footnote omitted.) Prosser & Keeton, Law of
Torts (5 Ed.1984) 264, Section 41.”
Johnson
,
prove any set of facts justifying her recovery of damages based on the conduct of the appellee doctors. We find that she could not. As in Anderson , Alicia’s claims fail for lack of asserting facts demonstrating the negligence elements of damages and causation. We initially observe that the vast majority of jurisdictions that have
considered wrongful life claims similar to Alicia’s have refused to recognize them.
See, generally,
Siemieniec v. Lutheran Gen. Hosp.
(1987),
near the time of conception, and that appellees neither caused that condition itself, nor could they have treated either Patricia or Alicia so as to allow Alicia to be born without spina bifida. Thus, the only injury causally related to the appellees’ breach of duty was the deprivation of the chance to make a fully informed decision whether to continue the pregnancy. That decision, legally, belonged to Patricia Hester. Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147. Had she been given the information at issue she would have had two options: continue the pregnancy or abort the pregnancy. It is implicit in Alicia’s argument that appellees should be held liable
to her mother Patricia, based on breach of the duty to convey the negative test results to Patricia and that Alicia herself was injured by that breach. Because the Hesters assert that Patricia would have opted for abortion, adoption of the proposition that Alicia was thus injured would necessitate our acceptance of the proposition that abortion, therefore nonexistence, would have been better for Alicia than life accompanied by physical and/or mental deficiencies. We would, in effect, be making a judicial determination that the trial court is able to adjudicate that it would have been better for Alicia had she not been born. The issue is compounded by the fact that it is not Alicia herself who asserts that she would have preferred not to have been given life, but her father, whom the law permitted to speak for her. The proposition that it would have been better for Alicia to have not
been given life is inconsistent with our recognition of the value of life, as reflected in the holding in Anderson and other precedent. It also would place the court in the position of comparing the value of being, albeit with handicaps, versus nonbeing. *10 We remain committed to the proposition, as recognized in Bowman , that such weighing falls within the ambit of moral, philosophical, and religious considerations rather than judicial. Judges and jurors are no more able to judge the value of a life with disabilities versus nonbeing than they are able to judge the value of life in a “normal” condition (however that might be defined) versus nonbeing. We therefore reject the Hesters’ suggestion that Alicia suffered damage based on the fact of her being born rather than aborted. Similarly, Alicia’s claim fails for lack of demonstrating the negligence
element of causation. Had Patricia been told that her fetus might be born with spina bifida, she would, under current law, have been legally entitled to an abortion. Abortion would, of course, have relieved the Hesters from the joys and benefits of parenthood, as well as the financial obligations associated with parenthood. If appellees failed to provide Patricia with the disconcerting test results, as alleged in the complaint, Patricia can claim to be injured in that she was deprived of the choice to avoid those expenses by terminating the pregnancy. But that issue is not presented in this appeal. Moreover, no person has control over the occurrence or nonoccurrence
of his or her own birth. In contrast to a pregnant woman who is unwilling or unable
to undertake the burdens, both financial and nonfinancial, associated with the care of
an impaired child, and therefore decides to terminate her pregnancy, the child herself
does not have an option to decide whether or not it will be born. He or she is no worse
off as a result of a medical provider’s breach of duty to her mother than if the test
results had been conveyed, yet the mother decided to continue the pregnancy. As
cogently summarized in
Schloss v. Miriam Hosp.
(Jan. 11, 1999), R.I.Super. No. C.A.
98-2076, unreported,
opportunity to make an informed choice to terminate a pregnancy) is conceptually different from the injury that Alicia asserts (her birth with defects). Liability in negligence is dependent upon the existence of a proximate cause relationship between breach of duty and injury suffered. Alicia argues, in effect, that appellees’ breach of duty caused her birth with defects. But a “birth with defects” is composed of two separate components: birth and defects. We accept as a reasonable inference from the complaint Patricia’s assertion that she would have aborted had she been provided the test results, and we thus further accept the premise, on this review of a motion for judgment on the pleadings, that appellees’ breach caused Alicia to be born. However, that breach did not, in any way, cause Alicia’s medical handicaps. The law of negligence does not hold a defendant liable for damages
that the defendant did not cause. The Hesters concede that Alicia’s spina bifida was not caused by anything the appellees did. It is certainly true that Alicia would never incur extraordinary living expenses had Patricia undergone an abortion, as Alicia would never have existed as a living being. But we find, consistent with Johnson and Anderson, and as described by Prosser, supra , that the fact that Alicia is handicapped is not so closely connected with the appellees’ breach of duty as to justify imposition of liability on these appellees. It is an unfortunate fact that Alicia was born with spina bifida. Medical
science could not have changed this fact. She would either be born with that condition or not born at all. The crux of her complaint as asserted by her father is that she was born at all. That being the case, Alicia could recover, if at all, based only on the fact
S C that she is now alive, albeit with spina bifida. The common law of Ohio, as in the vast majority of American jurisdictions, does not authorize such a recovery.
{¶ 35} Accordingly, we hold that a child born with physical or other handicaps does not state a cause of action in medical negligence based upon the failure of a doctor to inform the child’s mother during her pregnancy of test results indicating a possibility that the child would be born with defects, thereby depriving the mother of the opportunity to make a fully informed decision as to whether to obtain a legal abortion. The trial court properly granted judgment on the pleadings in favor of
appellees, and, accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
F.E. WEENEY , OOK and L UNDBERG S TRATTON , JJ., concur.
D OUGLAS and R ESNICK , JJ., dissent.
P FEIFER , J., dissents.
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P FEIFER , J., dissenting. This case challenges the ability of the legal system to handle a series of difficult moral, ethical, and legal questions. Our existing jurisprudence does not offer adequate answers. But it is the very nature of the common law that it develop, and that it build bridges between resolved areas of the law and new areas of concern that arise out of social shifts or advances in science and technology. This is a complicated case, but at the same time is not complicated
enough. The issues it raises should not be dealt with in the abstract. The development of the facts here is not equal to the task of dealing with a case of this magnitude. Alicia’s claim deserves a trial, so that the parties can develop a factual record for us to examine and extrapolate from. We ought to accumulate all the resources we have at our disposal to resolve this issue. We diminish the jurisprudence of this state to do otherwise. *13 New legal theories should be tested, but not in a vacuum. This is a
responsibly pled case, and Alicia’s claim is closely tied to those of her parents, claims that no one seems to argue are invalid. Alicia’s and her parents’ claims should be tried together. In an area of law where closely related claims are allowed, we should see how a case like this might play out, and how the claims might fit together in order to avoid wholly inadequate or inappropriate compensation. If the claims are tried together, a jury can sort them out and give a reviewing court a better ability to determine what claims should and should not be recognized. It is the natural progression of the law that important claims go
unrecognized before being adopted by courts. In the end, we might not agree with
the plaintiff’s theory of recovery. But the issue and proposed claim are important
enough that we ought to allow a jury the opportunity to work its way through the
matter. Before
Gallimore v. Children’s Hosp. Med. Ctr.
(1993),
the financial cost of raising a child, and what happens to the child who is unable to pay for his or her own needs once he or she reaches the age of majority. If we allow parents to recover for negligent genetic counseling, it may make pragmatic sense that the child’s claim also be allowed. Only if the damage award goes to the child, *14 with oversight by the probate court, can we be certain that the child’s expenses are being paid. The child’s injury would be the focus of any damages, and thus the treatment of that injury should be the focus of any award. The labeling of a cause of action as “wrongful life” cheats a plaintiff.
Neither her parents nor the child herself claims that the life of the child is a wrong. Parents are not suing to avoid having to provide love and care to a child with special needs. Children are not suing because they have a difficult life. Children and parents sue because there is a very real financial cost that is intertwined in their lives because of allegedly negligent medical care. Might it not be injudicious of this court to assume that a lifetime of
dependence is not an injury? None of us will ever know what it is like to be Alicia Hester. We cannot know what might go through her mind in her most private of moments, or what she might think about herself in moments of honest self- appraisal. While we all owe our lives to the efforts of the many who preceded
us, those of us who can lead eventually normal and independent lives can forget, on the surface at least, our continued debt to those people. However, the less fortunate can be weighed down by the constant reminder of complete dependence. Might there be a proper claim of negligent infliction of emotional distress for plaintiffs like Alicia against doctors who negligently perform prenatal testing?
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