Thomas Pierce LININGER, a minor, By and Through his parents and next friends, Richard LININGER and Pamela Lininger, and Richard Lininger and Pamela Lininger, individually, Petitioners, v. Allan M. EISENBAUM, M.D., W. Bruce Wilson, M.D., Gerald E. Meltzer, M.D., and Gerald E. Meltzer, M.D., P.C., Respondents.
No. 86SC307
Supreme Court of Colorado, En Banc.
Nov. 28, 1988.
764 P.2d 1202
The majority concludes that because the judgment was for $575,000, the $500,000 threshold was met and Continental is therefore liable, along with Chicago, for its portion of the judgment in excess of the $500,000. While this conclusion may appear to be reasonable, it ignores the fact that only Empire Policy No. 18168 was in force during the time the Continental policy was in effect. The only negligent act that occurred while Continental provided coverage took place in July or August of 1972, for which Empire had to provide $200,000 worth of coverage pursuant to its policy no. 18168. The $200,000 paid out by Empire pursuant to its policy no. 20598 was attributed by the trial court to negligent acts that occurred after Continental‘s coverage ended, and as such should not be applied against Continental‘s $500,000 threshold.
Because the trial court did not apportion liability among the three insurance companies, it cannot be determined with certainty whether the $175,000 of the judgment not covered by Empire‘s primary insurance coverage was attributable to the first negligent act, which occurred while the Continental policy was in effect, or to the second, third, or fourth negligent acts, which occurred while the Continental policy was not in effect, or to any combination thereof. If the $175,000 were attributable to the first act, then Empire would have been obligated to pay out $375,000 under its primary coverage, if Lockwood had maintained the 500/500 primary coverage required by Continental. Because I agree with the majority‘s statement that Lockwood‘s failure to carry the requisite primary coverage does not lower Continental‘s threshold from 500/500 to 100/300, the $375,000 of primary coverage paid out during the term the Continental policy was in effect falls $125,000 short of the $500,000 threshold necessary to activate the Continental policy. Since Lockwood‘s failure to maintain the requisite primary insurance coverage does not lower Continental‘s threshold, and since this $500,000 threshold was never met, the Continental policy was never activated. Accordingly, Continental is not liable to pay any portion of the $575,000 judgment, and that liability falls solely on Chicago.
I am authorized to say that Justice VOLLACK joins in this concurrence and dissent.
Neil A. Hillyard, M. Susan Kudla, Branney, Hillyard, Kudla and Lee, Englewood, for petitioners.
Peter W. Pryor, Ingrid E. Slezak, Pryor, Carney & Johnson, Englewood, for respondents.
Gerald P. McDermott, Gene M. Hoffman, Hoffman & Boyd, Denver, for amicus curiae Colorado Trial Lawyers Ass‘n.
ROVIRA, Justice.
Plaintiffs Richard and Pamela Lininger and their son, Pierce, seek review of the district court‘s dismissal of their medical malpractice claims against the defendants-physicians. We granted the Liningers’ petition for a writ of certiorari pursuant to
We answer the first question in the affirmative, the second in the negative, and accordingly affirm in part and reverse in part the district court‘s order of dismissal.
I.
Because we are assessing the legal sufficiency of the Liningers’ complaint, we accept the following factual allegations as true. On October 14, 1981, Stephen Skyler Lininger (Stephen) was born to Pamela and Richard Lininger (Liningers). Dr. Caplan, Stephen‘s pediatrician, examined him in March 1982, and detected problems with Stephen‘s vision. Stephen was later examined by Dr. Eisenbaum, a pediatric ophthalmologist, Dr. Wilson, a neuro-ophthalmologist, and Dr. Meltzer, an ophthalmologist. Each physician opined that Stephen had a congenital optic nerve hypoplasia.
The Liningers were concerned that Stephen‘s blindness might have arisen from a genetic defect. Although they thought a fully sighted child would be beneficial in assisting Stephen‘s development, they were unwilling to have another blind child. To better inform their decision, the Liningers sought their physicians’ advice about the possibility that a second child would be born blind.
The defendants-physicians informed the Liningers that, in their opinion, Stephen‘s
The Liningers allege that the defendants were negligent in failing to diagnose properly Stephen‘s condition as Leber‘s congenital amaurosis when they first examined him, in communicating the misdiagnosis to the Liningers, and finally, in advising them that Stephen‘s affliction was not hereditary. But for those acts of negligence, the complaint further alleges, the Liningers would “have avoided conception or terminated the pregnancy....” Pierce claims that as a result of the defendants’ negligence, he has suffered a loss of enjoyment of a natural life, has endured pain and suffering, and will suffer in the future. Both the Liningers and Pierce seek general damages for emotional distress and pain and suffering, and special damages for doctors, nurses, hospitals, and special education.
On defendants’ motion for summary judgment, the district court found that neither the Liningers nor Pierce stated cognizable claims for relief against defendants under Colorado law, and dismissed the complaint in its entirety.1
II.
The complaint attempts to state a “wrongful birth” claim on behalf of the Liningers and a “wrongful life” claim on behalf of Pierce.2 “Wrongful birth” is the term used to describe a medical malpractice claim brought by the parents of a child born with an impairment or a birth defect. In this case, the malpractice claim is based on an allegedly negligent diagnosis which resulted in the failure to properly inform the parents of potential risks to a second child. The parents allege that but for a physician‘s negligence in either misinforming them or failing to inform them about the likelihood that their child would be born with a birth defect or impairment, they would not have conceived or would not have carried to term the child who was subsequently born with an impairment. “Wrongful life,” on the other hand, denominates a medical malpractice claim in which the child alleges that but for a physician‘s negligence, as described above, he would not have been born to suffer the impairment.3
The questions before us are whether the Liningers’ complaint sufficiently alleges facts which, if proven, entitle them to relief, and similarly, whether Pierce‘s allegations state a claim upon which he could be granted relief. We address the purported claims in turn.
A.
To state a claim sounding in tort upon which relief may be granted, a complaint must identify (1) a legal duty the defendant owes to the plaintiff, (2) the defendant‘s breach of that duty, and (3) an injury to the plaintiff that is (4) proximately caused by the defendant‘s breach. W. Prosser & W. Keeton, The Law of Torts 164-65 (5th ed. 1984).
The Liningers first assert that each defendant had a duty to disclose the nature of Stephen‘s impairment, and further, each defendant had a duty to inform them of the enhanced likelihood that a second child would be similarly afflicted. They then allege that defendants negligently failed to accurately diagnose Stephen‘s condition, and thus negligently failed to inform them of the increased risk to a second child.
In Bloskas v. Murray, 646 P.2d 907 (Colo. 1982), we recognized that a cause of action for negligent misrepresentation will lie against a physician who, during the course of the physician-patient relationship, “negligently conveys false information to the patient, and the patient relies upon the information” to his detriment. 646 P.2d at 915. Moreover, we have recognized that a physician owes to his patients the duty to act within reasonable standards of medical care in diagnosing the patient‘s medical condition. See Comstock v. Collier, 737 P.2d 845, 848 (Colo.1987); Foose v. Haymond, 135 Colo. 275, 283, 310 P.2d 722, 726 (1957). Defendants do not contend, nor do we see any reason to find, that those duties did not arise in their diagnosis of Stephen and provision of medical advice to the Liningers.5
The complaint sufficiently alleges, therefore, that defendants breached some duty owed to the Liningers. The complaint also adequately alleges, and again defendants do not disagree, that the defendants’ purported negligence proximately caused the birth of Pierce since the Liningers would not have conceived a second child (or would have terminated the pregnancy) had they accurately been apprised of the possibility that a second child would suffer the same affliction.6
Finally, the Liningers assert that they were damaged in the following respects:
Plaintiffs Richard and Pamela Lininger have incurred expenses on behalf of Thomas Pierce Lininger for doctors, nurses, hospitals, medicines, therapists, special schools, special education and special equipment and will in the future incur [similar expenses]. Plaintiffs Richard and Pamela have in the past suffered a loss of time and earnings and will in the future suffer a loss of time and earnings, all to their damage ... [and] have in the past experienced emotional distress, embarrassment, humiliation and anxiety and will in the future experience emotional distress, embarrassment, humiliation and anxiety.
Although defendants did not assert before the trial court that the Liningers failed to plead a cognizable injury resulting from their asserted negligence, they now urge that we follow the Supreme Court of North Carolina in declaring that:
In order to allow recovery [for wrongful birth] courts must ... take a step into entirely untraditional analysis by holding that the existence of a human life can constitute an injury cognizable at law. Far from being “traditional” tort analysis, such a step requires a view of human life previously unknown to the law of this jurisdiction. We are unwilling to take any such step because we are unwilling to say that life, even life with severe defects, may ever amount to a legal injury.
Azzolino v. Dingfelder, 315 N.C. 103, 109-112, 337 S.E.2d 528, 533-34 (1985), cert. denied, 479 U.S. 835 (1986) (emphasis in original).
We disagree. The Liningers allege, at a minimum, that but for the defendants’ negligence they would not be burdened by extraordinary medical and education expenses associated with the treatment of Pierce‘s blindness. That monetary burden is no different from medical or rehabilitation expenses associated with any personal injury, and, contrary to Azzolino‘s suggestion, we need not find that “life, even life with severe defects,” constitutes a legal injury in order to recognize the Liningers’ claim for relief.
The defendants argue further that even if we recognize that the parents suffer an injury by being deprived of the opportunity to avoid bearing an impaired child, appropriate damages are not fairly ascertainable in light of the “benefit rule,” under which any special benefit to the plaintiff resulting from the defendants’ negligence must be offset against the damage the negligence causes to the extent necessary to achieve an equitable result. See
Assuming, without deciding, that the benefit rule must be applied in measuring the damages the Liningers have suffered and will in the future suffer,7 we are not persuaded that the application of that rule so undercuts any rational basis for awarding damages that relief must be denied
We conclude, therefore, that the Liningers may prove and recover those extraordinary medical and education expenses occasioned by Pierce‘s blindness. We express no opinion as to whether other damages, such as general damages for emotional distress, may be recovered,8 and, if so, whether the benefit rule would require an offset against such damages.
In addition to their contention that wrongful birth claims do not fit within traditional tort analysis, defendants proffer several arguments to the end that we should decline to recognize a claim for wrongful birth for prudential reasons even if such a claim fits within the confines of established negligence principles.
First, defendants contend that the maintenance of wrongful birth suits could have a substantial negative impact on the family should the impaired child subsequently learn that he was at the center of such an action. We fail to see how the parents’ recovery of extraordinary medical and educational expenses, so as to minimize the detrimental effect of the child‘s impairment, is outweighed by any speculation about stigma that he might suffer.
Second, defendants argue that the potential for fraudulent claims cautions against
Finally, defendants argue generally that, in light of the public policy issues at stake, the legislature, and not this court, is the appropriate forum to “create” a cause of action not recognized at common law. As we have explained above, however, the complaint states a cause of action within the confines of common law negligence. We are not persuaded by defendants’ public policy arguments, and in light of our finding that we are merely applying common law negligence principles and not “creating” a new cause of action unknown at common law, we see no reason to defer the resolution of this issue to the legislature.9
As one court explained in rejecting a similar argument:
Our holding that the plaintiffs have stated a cause of action [for wrongful birth] involves the application of the doctrine of negligence, established by the common law of the Commonwealth of Pennsylvania, to a recently developed medical procedure. The determination of the scope of the common law doctrine of negligence is within the province of the judiciary.
Gildiner v. Thomas Jefferson University Hospital, 451 F.Supp. 692, 696 (E.D.Pa. 1978).
In summary, the Liningers’ complaint sufficiently states a cause of action upon which relief may be granted, and they are entitled to prove and to recover at least the extraordinary medical and education expenses they have incurred, and will incur, in raising Pierce, if they are able to establish that those expenses were proximately caused by defendants’ negligence.
Just as we measured the viability of a claim for relief for wrongful birth against standard negligence principles, so we measure the purported claim for wrongful life on behalf of Pierce.
The underlying assumption of Pierce‘s claim for wrongful life is that a physician owes a duty to a child who might be born in the future, to ensure that the child‘s parents are apprised of the consequences of their conceiving or delivering a child so that they may exercise their right to plan their family accordingly. But see James G. v. Caserta, 332 S.E.2d 872, 881 (W.Va. 1985) (the “duty to inform does not extend to the unborn child as it is the parents’ decision to risk conception or to terminate a pregnancy.“). Because we need not pass on the validity of that assumption in this case, we accept it only for the sake of determining whether, even in light of this alleged duty, Pierce has stated a claim for relief. We also assume, arguendo, that the complaint adequately alleges that whatever injuries Pierce suffered were proximately caused by defendants’ breach of that duty. But see Wilson v. Kuenzi, 751 S.W.2d 741 (Mo.1988) (rejecting wrongful life claim on basis that impaired child cannot prove causation).
We must consider, then, whether Pierce suffered a legally cognizable injury. But for the physicians’ alleged negligence, Pierce would have neither been burdened by the disadvantages of his impairment nor would he have experienced the benefits of life. He simply would not have existed. The difference between the value of his impaired existence and the value of his non-existence, then, constitutes the injury (and the measure of damage) he suffered as a proximate result of the physicians’ failure to provide accurate information to Pierce‘s parents. To hold that Pierce adequately pleaded that he suffered a legally cognizable injury would be to hold, therefore, that one might properly conclude that Pierce‘s existence constitutes a detriment to him; that from his perspective, it would have been better had he not been born at all.
Pierce contends, however, that we need not determine that an impaired existence is better than no existence to find that he was injured. His injury is not, he claims, that he was born impaired rather than not having been born at all, but instead that his parents were deprived of their right to decide, on Pierce‘s behalf, whether it would be better that he not be conceived or, if conceived, not be carried to term. In so arguing, Pierce relies on Justice Handler‘s explanation of the purported injury in Procanik v. Cillo, 97 N.J. 339, 478 A.2d 755 (1984):
[The] injury consists of the consequences of the deprivation of his parents’ right to determine on his behalf whether he should have been born. What then is at issue as the basis for a cause of action is not the postulate that nonlife is preferable to life, but only whether parents—for themselves and their child as a family—were deprived of the opportunity to make the fateful decision and enact their preference of one over the other.
97 N.J. at 364, 478 A.2d at 769 (Handler, J., concurring in part and dissenting in part) (emphasis in original).
We find no substantive difference between the injuries which Pierce attempts to distinguish. Even conceding that Pierce‘s parents were deprived of their right to make an informed decision regarding his conception, the sole consequence of that deprivation was that Pierce was born. Had Pierce‘s parents made an informed choice—the deprivation of which Pierce cites as his injury—he would not have been born because his parents claim that they would not have conceived him or would have aborted the fetus had they been adequately informed. Pierce‘s characterization of his injury does not change the nature of the detriment he claims to have suffered: namely, that he was born impaired instead of not being born.
With respect to the first step, one must recognize not only that Pierce will experience pain and suffering during his life, but also that he will experience benefits as well. Even if we could say with confidence that a life free of handicaps is measurably better than a life encumbered by impairments, we know of no means by which to assess the value of life without resort to such a comparison. The circumstances of Pierce‘s birth do not fairly lend themselves to such a comparison; he never had the opportunity to have been born completely healthy.
Second, we cannot appraise the value of Pierce‘s non-existence for purposes of comparing it with his impaired existence. The relevant question—of what value to Pierce would his non-existence have been?—is entirely too metaphysical to be understood within the confines of law, if indeed, the question has any meaning at all.
The difficulty that besets Pierce‘s complaint is not merely that damages are inherently too speculative to assess. While the discussion above compels that conclusion, the more fundamental problem is that we cannot determine in the first instance that Pierce has been injured. We conclude that for want of an allegation of a legally cognizable injury, Pierce‘s complaint fails
Three states have recognized a child‘s cause of action for special damages arising from the deprivation of his parents’ right to choose whether to conceive or bear the child, notwithstanding their apparent agreement that the child has suffered no cognizable injury.
In Turpin v. Sortini, 31 Cal.3d 220, 643 P.2d 954, 182 Cal.Rptr. 337 (1982), Joy Turpin alleged that but for the defendant-physician‘s failure to diagnose her sister‘s hereditary deafness, her parents would not have conceived her. Although the California Supreme Court concluded that it is “doubtful that a child‘s claim for general damages should properly be denied on the rationale that the value of impaired life, as a matter of law, always exceeds the value of nonlife,” the court went on to find that:
[W]ith respect to the child‘s claim for pain and suffering or other general damages—recovery should be denied because (1) it is simply impossible to determine in any rational or reasoned fashion whether the plaintiff has in fact suffered an injury in being born impaired rather than not being born, and (2) even if it were possible to overcome the first hurdle, it would be impossible to assess general damages in any fair, nonspeculative manner.
31 Cal. 3d at 235, 643 P.2d at 963, 182 Cal.Rptr. at 346. In response to Turpin‘s assertion that the mere difficulty in assessing damages should not bar her action, the court emphasized that “the problem is not simply the fixing of damages for a conceded injury, but ... determining whether the plaintiff has in fact suffered an injury by being born with an ailment as opposed to not being born at all.” 31 Cal. 3d at 235, 643 P.2d at 963, 182 Cal.Rptr. at 346.
The court then considered Turpin‘s request for special damages. Instead of reiterating its conclusion that she suffered no ascertainable injury entitling her to maintain an action, the court concluded that an impaired child should be permitted to recover the “certain and readily measurable” extraordinary medical expenses associated with her impairment:
[I]t would be illogical and anomalous to permit only parents, and not the child, to recover for the cost of the child‘s own medical care. If such a distinction were established, the afflicted child‘s receipt of necessary medical expenses might well depend on the wholly fortuitous circumstance of whether the parents are available to sue and recover such damages or whether the medical expenses are incurred at a time when the parents remain legally responsible for providing such care.
31 Cal. 3d at 238, 643 P.2d at 965, 182 Cal.Rptr. at 348. The court was satisfied to ground its decision on what it perceived to be an equitable result, and chose not to explain why the absence of a cognizable injury was not fatal to Turpin‘s claim for special damages.
The New Jersey Supreme Court similarly disregarded the apparent lack of an injury to the child in Procanik v. Cillo, 97 N.J. 339, 478 A.2d 755 (1984). The court concluded that an impaired child should be permitted to maintain a claim for special damages notwithstanding its decision not to allow a similar claim for general damages:
Law is more than an exercise in logic, and logical analysis, although essential to a system of ordered justice, should not become an instrument of injustice. Whatever logic inheres in permitting parents to recover for the cost of extraordinary medical care incurred by a birth-defective child, but in denying the child‘s own right to recover those expenses, must yield to the injustice of that result.... We need not become preoccupied with these metaphysical considerations [concerning whether a defective life is better than no life at all]. Our decision to allow the recovery of extraordinary medical expenses is not premised on the concept that non-life is preferable to an impaired life, but is predicated on the needs of the living. We seek only to respond to the call of the living for help in bearing the burden of their affliction.
In Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 656 P.2d 483 (1983), the Washington Supreme Court reached the same conclusion as that reached by the California and New Jersey Supreme Courts, but again without finding expressly that the plaintiff child had suffered an injury. Although the court endeavored to “consider wrongful life according to the four traditional tort concepts of duty, breach, injury, and proximate cause,” 98 Wash. 2d at 479, 656 P.2d at 495, upon reaching the question of injury the court chose merely to answer the assertions that special damages in wrongful life cases are too speculative and that “to recognize life itself as an actionable injury would be inimical to deeply held beliefs that life is more precious that non-life.” 98 Wash. 2d at 481, 656 P.2d at 496. After finding the first assertion to be without merit, the court summarily rejected the second, stating:
Suffice it to say here that we do not agree that requiring a negligent party to provide the costs of health care of a congenitally deformed child does not appear to us to be a disavowal of the sanctity of human life.
98 Wash. 2d at 482, 656 P.2d at 497.
Our inability to find an injury to Pierce does not, of course, rely on any claim that recognizing such an injury constitutes a “disavowal of the sanctity of human life,” but only on the fundamental conceptual impossibility of determining what that injury is. We are not satisfied, therefore, that Harbeson adequately specifies the injury an impaired child suffers in being born. We can only conclude that the Washington Supreme Court, as did the Supreme Courts of California and New Jersey, chose to disregard the child‘s failure to prove an injury in light of its perception that the equities of permitting the child to recover special damages were entitled to greater weight.
In the end, the question must be whether we will continue to adhere to well-established tort principles, or instead will discard those principles so as to permit a plaintiff to recover damages from a defendant who cannot fairly be said to have caused any injury to the plaintiff.
The fundamental concern of tort law is to determine when the responsibility for, and the burden of, an injury should be shifted from the injured party to some third person. To discard the requirement that a plaintiff prove that he has been injured would carry tort law well beyond its proper, principled boundaries. Absent any demonstrable injury to the plaintiff, there is no burden for which a third party may be held to answer. See also Nelson v. Krusen, 678 S.W.2d 918, 924-25 (Tex.1984) (recognition of limited cause of action for special damages in wrongful life cases does not avoid problem of following basic rule of tort compensation that “plaintiff is to be put in the position that he would have been in absent the defendant‘s negligence.“); Procanik, 97 N.J. at 369, 478 A.2d at 772 (Schreiber, J., dissenting in part) (“The position that the child may recover special damages despite the failure of his underlying theory of wrongful life violates the moral code underlying our system of justice from which the fundamental principles of tort law are derived.“).
We do not question that Pierce will face substantial expenses throughout his life with respect to his blindness. We merely conclude that his life, however impaired and regardless of any attendant expenses, cannot rationally be said to be a detriment to him when measured against the alternative of his not having existed at all. By so finding, we reiterate that a plaintiff‘s right to recover turns on no more a “fortuitous circumstance” or anomaly than that the plaintiff demonstrate that he has suffered an injury.
We conclude, therefore, that the complaint fails to state a claim on behalf of
ERICKSON, J., concurs in part and dissents in part.
MULLARKEY, J., concurs in part and dissents in part, and LOHR, J., joins in the concurrence and dissent.
ERICKSON, Justice, concurring in part and dissenting in part:
I concur in the result, and dissent to that part of the opinion that addresses damages for wrongful birth.
I agree with the majority‘s conclusion that the trial court erred in granting summary judgment on the Liningers’ claim for “wrongful birth.” In its August 26, 1986 order dismissing the case with prejudice, the trial court stated that “the motions of defendants for summary judgment are granted.” Under
In my view, the proper measure of damages for the Lininger‘s claim should not be addressed in reviewing the motion for summary judgment. The majority points out in footnote 9 that this court denied certiorari on the issue of the proper measure of damages. The majority opinion acknowledges the difficulty in addressing the issue at this stage of the proceedings. On the one hand, the majority holds that in the event the plaintiffs prevail on the “wrongful birth” claims, they may “recover those extraordinary medical and educational expenses occasioned by Pierce‘s blindness.” At 1207. On the other hand, the majority “express[es] no opinion as to whether other damages may be recovered....” Id. at 1207. If the plaintiffs do not prevail at trial, the measure of damages awarded in future “wrongful birth” cases will be governed by a precedent that resulted from the virtually nonexistent record before us. Given the procedural posture of this case and the lack of a record relating to damages, I think it is premature to address the damage issue at this time.
I also believe that labelling the claim as one for “wrongful birth” confuses the analysis of the case. The majority states “As we have explained above, however, the complaint states a cause of action within the confines of common law negligence.” At 1208. Since those claims for relief identified in the complaint as “wrongful birth” claims sound in traditional negligence and medical malpractice, I believe that denominating the claims as “wrongful birth” claims clouds the issue. “Wrongful birth” is a misnomer that does not identify the underlying tort as much as it inartfully describes the result of the tort. It is not the birth of Pierce Lininger that gives rise to the plaintiffs’ claim for relief. Rather, it is the alleged negligent failure to diagnosis Pierce‘s congenital condition that forms the basis of the plaintiffs’ complaint.
Because I believe that the majority analyzes the issue within the traditional negligence/malpractice framework, and reaches the proper result, I concur in the result and agree that the trial court erred in granting summary judgment on the claims referred to as “wrongful birth” claims. I agree with the majority in concluding that the claims for “wrongful life” were properly dismissed, and reflect an improper designation of the claims asserted.
MULLARKEY, Justice, concurring in part and dissenting in part:
I respectfully dissent from Part II.B of the majority opinion because I believe that Pierce Lininger (Pierce) stated a claim for relief which is sufficient to withstand a motion to dismiss. In Destefano v. Grabrian, 763 P.2d 275 (Colo.1988), we rejected
“Wrongful life” is a label which is misleading and decidedly unhelpful. As one commentator noted, the term prevents analytical clarity. Capron, Tort Liability in Genetic Counseling, 79 Colum.L.Rev. 618, 647 (1979). The allegation which has come to characterize the tort of wrongful life (and which is present in the case now before us) is that, if the physicians had properly diagnosed and advised the plaintiffs with respect to a genetic condition, the parents would not have conceived or borne the child. This allegation poses the existence/nonexistence dilemma which so troubles the majority in its analysis of Pierce‘s claim. In my view, that allegation is immaterial with respect to claims for lack of informed consent and negligent misrepresentation. This fact is demonstrated by the majority‘s treatment of the parents’ claim in this case which summarily rejects the existence/nonexistence dilemma. See at 1206.
Since the claims of Pierce and his parents are so closely related and, indeed, mutually dependent, I see no reason to deny one while allowing the other to stand. The injury suffered by both the parents and Pierce occurred because the doctors failed to properly diagnose an hereditary condition in Pierce‘s older brother. Because of this misdiagnosis, the physicians advised the parents that there was no increased risk that any subsequent children also would be born blind. The Liningers sought the genetic counseling not only for themselves but also for their future children. Neither they nor Pierce can claim any right that Pierce be born a perfect child. What both Pierce and his parents can and do claim is that, in reliance on the physicians’ advice, they intended to assume only the ordinary risks inherent in any decision to bear children. They did not intend to assume the very high risk of a one-in-four probability that Pierce would be born blind.
The essence of the complaint by Pierce and his parents is that the physicians, through their negligent misrepresentation, deprived the parents of the opportunity to make an informed decision on whether to bear another child. This was a decision made by the parents on their own behalf and on behalf of Pierce. The physicians took that decision away from the parents and, by their negligence, made that decision for the parents and for Pierce. That denial of an informed decision is the injury caused to Pierce by the physicians’ negligence. It is a basic and fundamental injury to the Lininger family, and both the parents and Pierce should be permitted to sue for negligence.
Allowing Pierce to maintain an action for negligence is consistent with traditional tort analysis. Claims based on informed consent have evolved as a variant of medical malpractice. Bloskas v. Murray, 646 P.2d 907, 914 (Colo. 1982); see Stauffer v. Karabin, 30 Colo.App. 357, 492 P.2d 862 (1971). The law imposes upon a physician the duty of disclosing to the patient certain information essential to the patient‘s informed consent to the performance of a medical or surgical procedure on the patient. Bloskas, 646 P.2d at 914. Where a risk is one which would be medically significant to a patient‘s decision, and the risk is known or ought to be known by the physician, then it is a “substantial” risk and should be disclosed to the patient. Bloskas, 646 P.2d at 913; Mallett v. Pirkey, 171 Colo. 271, 284-85, 466 P.2d 466, 472-473 (1970). A physician may establish that his action or inaction complied with medical standards as a defense to this type of claim. Bloskas, 646 P.2d at 913, n. 6; Mallett, 171 Colo. at 282, 466 P.2d at 471.
Our decision in Bloskas also was grounded upon the tort of negligent misrepresentation, which we recognized as a claim for relief separate from and not subsumed within informed consent. 646 P.2d at 913-14. We adopted
Negligent Misrepresentation Involving Risk of Physical Harm
(1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results (a) to the other, or (b) to such third persons as the actor should expect to be put in peril by the action taken.
(2) Such negligence may consist of a failure to exercise reasonable care (a) in ascertaining the accuracy of the information, or (b) in the manner in which it is communicated.
Bloskas, 646 P.2d at 914. We also noted Comment b to section 311 which states that these principles find particular application where “it is part of the actor‘s business or profession to give information upon which the safety of the recipient or a third person depends.” We concluded that there was “no reason not to extend [the doctrine of negligent misrepresentation] to representations made in the course of [a physician-patient] relationship.” Id.
The physician‘s duty of care clearly extended to Pierce. It is well-established that a physician owes a duty of care to an infant who is born alive and the infant has an independent claim for relief based on breach of that duty. E.g., Hopkins v. McBane, 359 N.W.2d 862, 864 (N.D. 1984) (“In accord with the nearly unanimous weight of authority, we hold that ... there exists a cause of action by a child who is born alive for damages for prenatal injuries caused by the tortious conduct of another.“);
Negligent misrepresentation is particularly appropriate here because it is specifically applicable to those situations where a third party, such as a potential child, is foreseeably endangered.
Finally, I note that it is anomalous to recognize the parents’ claim and deny the child‘s claim. This will lead to hardship because any damages awarded would terminate when the child is emancipated and the failure of the parents to promptly pursue their claim would foreclose any relief being granted. This denial of the child‘s claim only serves to immunize negligent physicians.
Pierce‘s claims for lack of informed consent and negligent misrepresentation should be reinstated.
I am authorized to say that Justice LOHR joins in this concurrence and dissent.