Jackson v. Bumgardner
321 S.E.2d 541
N.C. Ct. App.
1984
Check Treatment

*1 OF APPEALS COURT Jackson v. L. RUFUS H. v. HEATH D. BUMGARD

VARONICA JACKSON and JACKSON NER

No. 8411SC6 1984) (Filed 6 November —wrongful pregnancy —wrongful wrongful § birth 1. Infants 3— distinctions life— by healthy wrongful pregnancy brought parents An action for is the child, by parents wrongful brought is unplanned an action for birth the but child, wrongful brought impaired an action for life is or on behalf of and impaired the child. wrongful pregnancy— § Physicians, Surgeons Allied 12.1— and Professions 2. dismissal plaintiffs’ wrongful pregnan- not have dismissed the The trial court should Wrongful pregnancy cy a cause of action. is a cause of claim for failure to state Piver, Ill, it is in North in Pierce v. 45 N.C. action Carolina permanent or dependent of birth tem- not on whether the method control porary, present problems incapable it of resolution the course and does not litigation. of traditional tort wrongful § Physicians, Surgeons Allied Professions 11.2— action for 3. and guaranteed pregnancy result based on —not upon guaranteed wrongful pregnancy was not suit Plaintiffs’ action for 90-21.13(d) alleged plaintiffs that defendant prohibited because result G.S. guaranteed per- totally promise rather than that he his perform his failed yield specific result. formance to wrongful pregnancy § 21— Surgeons Professions Physicians, and Allied 4. —fa- damages right to seek ther’s wrongful damages right to seek shares a mother’s A father (1) emotionally directly he affected pregnancy because conception or (2) he shares the financially by the child and the birth of damages for the support, should obligation provide for the child’s care be awarded. latter wrongful pregnancy § 21— Physicians, Surgeons Allied Professions —dam- ages pre- not damages wrongful pregnancy was Although question of (1) reached, damages relating were noted: three views sented or (2) childbirth, procedures, economic loss of unsuccessful medical the costs economic, to birth- physical costs attendant and emotional pregnancy, and from act, (3) child, offset flowing rearing all ing having benefits of Vaughn dissenting. Judge Chief APPEALS COURT OF Bnmgardner

Appeal by Order entered 17 plaintiffs Bailey, Judge. Harnett County. 1983 in Heard in the Superior November October Appeals Plaintiffs an action for medical brought wrongful pregnancy, arising from defend- wrongful conception in place ant’s failure to maintain or reinsert alleged negligent defendant’s motion granted pur- intrauterine device. The court 1A-1, dismiss Plain- complaint. suant to G.S. Rule appeal. tiffs Jr.,

Nance, Collier, Wheless, Nance, by Herndon & James R. plaintiff appellants. Smith, Anderson, Blount, Dorsett, by Mitchell & Jemigan, King, G. and Jodee Thompson Sparkman Samuel for defendant appellee.

WHICHARD, Judge. following: part, complaint alleges In pertinent defendant, consulted a licensed con- physician, Plaintiff-wife bleeding. performed plaintiff-wife Defendant on cerning uterine C) (D biopsy of the uterus and a of the curettage dilation was surgery plaintiff-wife of consultation and cervix. At the time (IUD) intrauterine which de- contraceptive protected or, necessary, if reinsert. place maintain agreed fendant defendant again consulted plaintiff-wife Three months later cyst, exploratory defendant performed an ovarian concerning she plaintiff-wife reassured that time defendant surgery. At device. When be the intrauterine protected would continue to later, plaintiffs some months became pregnant plaintiff-wife been maintained intrauterine device had not learned that Plaintiff-wife birth to gave or reinserted. place de- against claims allege negligence Plaintiffs contract They expenses plaintiff-wife to recover medical fendant. seek maturity. rearing the child and the child and the cost of failure to state complaint court dismissed the The trial reverse. be We granted. which relief can upon claim COURT OF APPEALS I. An action for wrongful conception or wrongful pregnancy generally brought by of a parents healthy, but unplanned, child against physician or other health provider care for negligently abortion, a sterilization performing procedure or an or against a pharmacist pharmaceutical manufacturer for negligently filling States, a contraceptive prescription. United Phillips F. (D.S.C. 1981); Holt, 545 n. 1 Supp. see generally Wrongful Pregnancy, Rev. S.C.L. This action is to be birth, distinguished from one for wrongful which is generally brought parents of an impaired child who claim that but for *3 the negligence of the physician or other health care provider they would not have conceived or would have terminated the pregnan cy. Id. See generally Rogers, and Wrongful Wrongful Birth: Life Medical in Genetic Malpractice and Prenatal Counseling Testing, (1982). action, life, 33 Rev. 713 A S.C.L. third for wrongful by or on behalf of generally brought child. impaired Parke-Davis, Inc., 460, 478-83, v. Harbeson 98 Wash. 2d 656 P. 2d (1983). 483, judicial 494-97 While adherence to this terminology uniform, (1978), has not been see Annot. 83 A.L.R. 15 3d we write slate on a clean and are free to use the more precise language. Although the terms themselves have not been used, this has recognized wrongful Court or conception wrongful pregnan cy alleging claim medical in “sounding negligence Piver, 111, 113, breach of contract.” Pierce v. 45 App. N.C. (1980). 320, 262 S.E. 2d 321-22 In Pierce the trial court granted motion to dismiss claims for for plaintiffs’ the birth of healthy child after an allegedly negligently performed tubal liga reversed, stating: tion. This Court “Plaintiffs’ complaint adequate ly a claim for relief cognizable existing legal under state[s] of principles jurisdiction. complaints, alleging this Similar contract, of have been found in negligence breach sufficient (Citations omitted.) Id., jurisdictions.” other 262 S.E. 2d at 322. when, Pierce Defendant contends that is not as applicable here, the concerns the failure to insert a tem- alleged malpractice that Pierce con- disagree birth control device. We and hold porary trols. APPEALS

110 COURT OF II. tem distinguishing No basis exists for between rational of purpose of birth control for the porary permanent methods wrongful for con determining complaint whether a states a claim wrongful Supreme “The States ception pregnancy. United Wade, 705, in v. 410 U.S. Connecticut, 35 L.Ed. 147 Roe S.Ct. (1973), v. and Griswold U.S. S.Ct. (1965), right has the L.Ed. 2d 510 has that a woman Authority v. family.” Hosp. the size of her Fulton-DeKalb plan Graves, 441, 442, right This 252 Ga. 314 S.E. 2d of of control. dependent upon not Thus, the choice the means birth are held pharmacists pharmaceutical manufacturers filling temporary for con negligently prescriptions liable Scarf, Troppi when births result. See 31 Mich. traceptives (1971) (action where conception 187 N.W. 2d 511 instead of birth con pharmacist negligently supplied tranquilizers trol pills). to limit patient’s

We no reason perceive compelling patient to situations which the non-negligent health care insertion of an intrauterine surgical chooses sterilization over the Defendant insertion re- acknowledges device. “injuries would be actionable if moval an intrauterine sense, result, does from the birth Injury result.” *4 which is of allows simply species This action a of caused recovery injury from a tortfeasor in the presence Hosp. Authority or Fulton-DeKalb negligent intentional conduct. Graves, 2d An avoidable 252 Ga. at 314 S.E. at 654. v. recognizable from is a resulting negligent medical care could exist no cause of action injury. ruling recognizable that “[A] vir- profession the medical such circumstances would leave under patients of liability for treatment tually immune Garrison, v. to Coleman seeking pregnancy.” avoid justifiably] 1974). (Del. Super. A. 2d III. to insert for relief for failure a claim Defendant contends that to claims the door fraudulent open device would an intrauterine only We note the negligence. the is remote from injury and that OF APPEALS COURT to ability that courts and have the between juries distinguish claims, it is difficult to meritorious and nonmeritorious that see how omission to insert an a intrauterine remote resulting could be considered from a Defend- pregnancy. here, only briefly problems dealt with arguments, present ant’s litigation. in the of tort capable of solution course traditional Note, Birth: A of Tort of 50 U. “Wrongful Age,” Child Comes Cin. (1981); Superior see University L. Rev. 73-74 also Ariz. 579, 582-83, For Ariz. P. 2d 1297-98 noted, reject the we them. that reason and reasons

IV. defense, 90-21.13(d), as is inap raised defendant a G.S. [3] plicable. that provides It pro- care may against any be maintained health action

[n]o or to any warranty as the upon guarantee, vider assurance medical, or any diagnostic procedure result of surgical provider the writing signed treatment unless ... to or on byor other act for behalf of person some authorized provider. such do not upon

This is not a suit result. Plaintiffs guaranteed to performance yield his allege guaranteed defendant that rather, result; they perform he totally failed specific allege promised. as he

V. bring wrongful Defendant’s claim pregnancy action without that plaintiff-husband has merit. no standing This action in standing in such an husband’s implicitly Pierce, for As actions 262 S.E. 45 N.C. birth, damages mother’s to seek father shares (1) he pregnancy because wrongful conception for negligent financially by the birth directly emotionally affected (2) provide obligation he shares unplanned child and the latter be care and should support, child’s *5 (Fla. Lieberman, Dist. 409 So. 2d 512 Ct. DiNatale v. awarded. See 1982) on the dependent is not (holding that the father’s App. individually). is his mother’s of action but cause 112 COURT OF APPEALS

VI. We are not presented with and do not reach the more dif ficult of the question damages. measure of As guidance court, however, trial we note authorities indicating that the law will recognize at least some types damage which result conception caused the negligence of another. See Tort Liability for Wrongfully Causing One Be (1978). Born, 83 A.L.R. 3d 29 Three views predominate. See generally, University Ariz. v. Superior 136 Ariz. at 582-86, (1983). 667 P. 2d at 1297-1301 The first line of authority limits to those which relate to the pregnancy and child Mullendore, (Ala. 1982); birth. See Boone v. 416 So. 2d 721 Pierce, see also (Wells, J., App. N.C. at 262 S.E. 2d at 322 second, concurring). The minority view characterized as the rule, “full damage” allows the cost of unsuccessful pro medical cedures, economic, economic loss from pregnancy, and physical and emotional cost attendant birthing and rearing the child. Davis, Bowman v. (1976); St. 2d Ohio 356 N.E. 2d 496 Bauer, Custodio v. Cal. Rptr. Cal. The third recovery allows of all damages which flow from the act, offset the benefits of having Scarf, 254-57, Troppi v. 31 Mich. App. at 187 N.W. 2d at 517-19. It was to dismiss the action on defendant’s Rule reversed, motion. The order is accordingly and the cause is remanded for further proceedings.

Reversed and remanded.

Judge JOHNSON concurs. Judge

Chief VAUGHN dissents. Judge

Chief Vaughn dissenting. In my view the trial judge properly allowed defendant’s mo- tion to dismiss.