M.A., individually and as parent and next friend to J.A., and N.A., as parent and next friend to J.A., a minor child, Plaintiffs,
v.
UNITED STATES of America, Defendant.
Supreme Court of Alaska.
*852 Keenan Powell, Powell & Slaten, LLC, Anchorage, for Plaintiff.
Richard L. Pomeroy, Assistant United States Attorney, and Robert C. Bundy, United States Attorney, Anchorage, for Defendant.
Before COMPTON, C.J., and MATTHEWS, EASTAUGH, FABE and BRYNER, JJ.
OPINION
BRYNER, Justice.
I. INTRODUCTION
We accepted certification in this case to decide whether a cause of action exists under Alaska law for a physiciаn's negligent failure to diagnose a pregnancy and, if so, the scope of recovery allowed under that cause of action. We conclude that negligent failure to diagnose a pregnancy gives rise to a cause of action for medical malpractice and is compensable to the extent that damages аre ordinarily allowable in medical malpractice cases, but that no recovery may be awarded for expenses of rearing a healthy child born as a result of the misdiagnosis.
II. FACTS AND PROCEEDINGS
M.A. and N.A., acting on behalf of their minor daughter, J.A., filed a suit in federal court against the United States of America (the United States) for injuries stemming from the allegedly negligent failure of an Alaska Native Medical Center physician to diagnose J.A. as being pregnant. M.A. and N.A. contend that the negligence delayed J.A.'s awareness of her condition and precluded her from safely aborting her child, thus resulting in the birth of a healthy child. M.A. separately seeks damages in her own right for negligent infliction of emotional distress.
Upon the filing оf cross motions for summary judgment, the United States District Court for the District of Alaska certified the following questions:
1. Does negligent failure to diagnose a pregnancy which results in the birth of a healthy child give rise to a cause of action for medical malpractice?
2. In a cause of action for negligent failure to diagnose pregnancy, what damages are recoverable for the birth of a healthy child?
3. Specifically, would recoverable damages include past medical expenses, pain and suffering of the mother, and the cost of raising the child?
4. Would any recoverable damages be offset by the benefits the parent derives from the child?
5. If the mother is precluded from bringing a claim for negligent failure to diagnose pregnancy, may a close relative bring a claim for negligent infliction of emotional distress?
We accepted certification pursuant to Alaska Appellate Rule 407[1] and now address these questions.
*853 III. DISCUSSION
A. Standard of Review
A decision by this court upon certification from another court involves determinative questions of Alaska law аs to which there is no controlling precedent. Appellate Rule 407(a). Because we address questions of law and essentially stand in the shoes of the certifying court, we must exercise our independent judgment and select "the rule of law that is most persuasive in light of precedent, reason, and policy." Guin v. Ha,
B. Should a Cause of Action Be Recognized for a Physician's Negligent Failure to Diagnose a Pregnancy?
We first consider whether to recognize a cаuse of action for negligent failure to diagnose a pregnancy.[2] The United States, arguing that the issue is one of public policy, undertakes an analysis under D.S.W. v. Fairbanks North Star Borough School District,
The D.S.W. test, however, does not apply if the existence of a duty is governed by statute.[4] In the present case, the United States' argument mistakenly assumes the absence of any generally applicable physician-patient duty arising under statute. The subject of medical malpractice is addressed in AS 09.55.530-.560, whose express purpose is to "codify the law with regard to medical liability." AS 09.55.530. Alaska Statute 09.55.540(a) specifically describes a physician's duty to act with "the degree of knowledge or skill possessed or the degree of care ordinarily exercised under the circumstances, at the time of the act complained of, by health care providers in the [doctor's] field or specialty."[5] The diagnosing of pregnancy is well within the mainstream of commonly rendered *854 medical services to which this provision applies.
Moreover, the United States' D.S.W. analysis focuses too heavily on the specific circumstances of the present case. The existence of a duty turns not on the particularized facts of a given case, but rather on the basic nature of the relationship between the parties to the cause of action.[6] On past occasions we have recognized that the unique nature of the physician-patient relationship confers upon physicians a fiduciary responsibility toward their patients. See Chizmar v. Mackie,
Given the provisions of AS 09.55.540(a) and this court's recognition of the fiduciary nature of the physician-patient duty, we conclude that a complaint alleging an examining physician's negligent failure to diagnose a pregnancy, as well as proximately resulting injuries, states a valid cause of action for medical malpractice.
C. Are Expenses of Child Rearing Compensable when Negligent Misdiagnosis Results in the Birth of a Healthy Child?
The more difficult question is how to conceptualize and compensate injuries stemming from this tort. The United States concedes that if negligent failure to diagnose a pregnancy is to be recognized as a viable cause of action, a plaintiff whо proves that a misdiagnosis has precluded termination of the pregnancy should be entitled to recover ordinary tort damages through the time of childbirth, including medical expenses, pain and suffering associated with the pregnancy and delivery, and lost wages. Cf. Poor v. Moore,
A hardеr issue is whether the costs of raising a healthy child may additionally be awarded and, if so, whether these damages should be offset by the benefits of parenthood. Neither of the two jurisdictions recognizing a cause of action for negligent failure to diagnose a pregnancy has held that child-rearing expenses are compensable. See Rinard v. Biczak,
Cоurts dealing with the related issue of "wrongful pregnancy" a category typically encompassing failed sterilization procedures resulting in unwanted pregnancies[7] are divided on the recoverability of child-rearing expenses: some allow full recovery, others adopt a mixed approach in which expenses are offset by thе benefits of having a child, but most allow no recovery.[8] This split in *855 authority in wrongful pregnancy cases largely reflects diverging policy views.[9] States denying childrearing expenses advance two principal rationales: first, the fear that children might someday suffer harm upon learning that they were not wanted and that a person other than a parent funded their upbringing;[10] second, the belief that a normal, healthy child should not be regarded as an injury.[11] An additional rationale sometimes mentioned is that child-rearing costs are too speculative.[12] Courts allowing recovery for wrongful pregnancy have disparaged each of these rationales.[13]
In assessing the relative persuasiveness of thеse divergent authorities, we take guidance from Poor v. Moore,
While M.A. and N.A. accurately observe that Poor is not binding here because that case involved an action by one parent against another, Poor is nonetheless highly persuasive. For if "[t]he fact that the child was conceived during the commission of a tort on his mother does not relieve her of the statutory and common law duty of support," Poor,
There is also reason to fear that such а rule would tend to influence the fates of children who are born of unplanned and unwanted pregnancies. When a young mother like J.A. considers whether to keep or relinquish for adoption her newborn child, she faces a profoundly difficult and uniquely personal decision. The child's best interests will clearly be served if this decision is firmly grounded in the mother's family values, her moral convictions, and her feelings for her child; yet a rule permitting awards of child-rearing expenses might encourage a decision founded instead on the vagaries of legal *856 strategy and the desire for compensation. The risk of this pernicious influence weighs heavily against any arguable benefit that might be gained from an awаrd of child-rearing expenses.
On prior occasions we have recognized and invoked our "power to limit claims ... for public policy reasons." Chizmar,
D. May M.A. Independently Recover for Negligently Inflicted Emotional Distress?
The final question cеnters on M.A.'s right to recover independently of J.A. for emotional distress that M.A. incurred as a result of the misdiagnosis of her daughter's condition.
To recover in an action for negligent infliction of emotional distress, M.A. must have a viable "bystander claim" or establish that J.A.'s physician owed M.A. a preexisting duty. Chizmar v. Mackie,
Furthermore, the circumstances of this case could not support the type of "bystander claim" that allows recovery for emotional distress in the absence of a preexisting duty. Under Mattingly v. Sheldon Jackson College,
We do not question the devastating emotional impact on M.A. that was caused by news of J.A.'s pregnancy. The present case is nevertheless clearly not a suitable one for bystаnder recovery. Absent any colorable *857 claim of a preexisting duty by J.A.'s physician toward M.A. or of circumstances creating bystander liability, M.A. has no independent right to recover for emotional distress resulting from negligent misdiagnosis of her daughter's condition.
IV. CONCLUSION
To summarize, we hold that negligent failure to diagnose a pregnancy that results in the birth of a heаlthy child gives rise to a cause of action for medical malpractice. Recoverable damages include damages through the time of birth that could ordinarily be recovered in a medical malpractice action. But following birth, the cost of raising a healthy child and other damages relating to child-rearing are not recoverable. And absent a preexisting duty or circumstances establishing a bystander claim, there is no independent cause of action on the part of the patient's relatives for negligent infliction of emotional distress.
NOTES
Notes
[1] Appellate Rule 407(a) provides:
The supreme court may answer questions of law certified to it by the Supreme Court of the United States, a court of appeals of the United States, [or] a United States district court ... when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in thе decisions of the supreme court of this state.
[2] Michigan and New York recognize this cause of action. Rinard v. Biczak,
[3] Specifically, we quoted with approval the test articulated in Peter W. v. San Francisco Unified School District,
[t]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.
See D.S.W.,
[4] See Estate of Day v. Willis,
[5] AS 09.55.540(a) provides:
[T]he plaintiff [in an action based on negligence] has the burden of proving by a preponderаnce of the evidence
1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised under the circumstances, at the time of the act complained of, by health care providers in the field or specialty in which the defendant is practicing;
2) that the defendant either lacked this degree of knowledge or skill or failed to exercise this degree of care; and
3) that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
[6] Cf. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53, at 356 (5th ed. 1984) ("It is better to reserve `duty' for the problem of the relation between individuals which imposes upon one a legal obligation for the benefit of the other, and to deal with particular conduct in terms of a legal standard of what is required to meet the obligation.").
[7] See Poor v. Moore,
[8] Wrоngful pregnancy cases allowing full recovery of childrearing expenses include Lovelace Med. Ctr. v. Mendez,
Cases following the mixed approach, or "benefits rule," include Hartke v. McKelway,
Cases precluding recovery for child-rearing expenses include Boone v. Mullendore,
See generally Poor,
[9] See generally Russell G. Donaldson, Annotation, Recoverability of Cost of Raising Normal, Healthy Child Born as Result of Physician's Negligence or Breach of Contract or Warranty § 2[a],
[10] See, e.g., Boone v. Mullendore,
[11] See, e.g., Cockrum v. Baumgartner,
[12] See, e.g., Boone v. Mullendore,
[13] See, e.g., Burke v. Rivo,
[14] As we said in Poor,
is entitled to recover tort damages for any injury .. . proximately resulting from [the defendant's] conduct. Thus, [the plaintiff] may recover medical expenses, pain and suffering, and lost wages resulting from the tort. [The plaintiff] may also recover any damages which a client under like circumstances who did not become pregnant, could recover, including damages for emotional distress, as well as punitive damages, if warranted.
[15] Cf. Chizmar,
[16] There is no suggestion here of a potential contractual duty, since it is undisputed that M.A. did not take her daughter to the hospital or arrange for her to be examined.