Lead Opinion
ON MOTION FOR REHEARING
We withdraw our opinion and judgment of November 16, 1983, and substitute the following.
Tom and Gloria Nelson brought a wrongful birth suit in their own behalf and a wrongful life suit as next friends of Mark Nelson, their minor son, against Dr. Edward Krusen and Baylor University Medical Center. The Nelsons’ suits alleged that Dr. Krusen negligently advised them that Mrs. Nelson was not a genetic carrier of Duchenne muscular dystrophy and was no more likely than any other woman to have a child afflicted by the disease. The Nelsons further alleged that, had they known of the risk that their child would be born with the disease, they would have terminated the pregnancy. The Nelsons alternatively claimed that Baylor negligently conducted or reported certain tests thereby causing Dr. Krusen to misinform them.
The trial court rendered summary judgment for Dr. Krusen and Baylor on the grounds that the statute of limitations had run on the wrongful birth claim and that no cause of action for wrongful life exists in Texas. The court of appeals affirmed.
This is an appeal from a summаry judgment; therefore, we take as true the uncontroverted evidence of the non-mov-ants. Swilley v. Hughes,
The neurologist based his diagnosis in part on Mark’s “lordotic and clumsy gait.” Although this clumsiness may have been evident during Mark’s first two years, during that time these symptoms could be discounted as simply the result of being two years old and learning to walk. Only as the child grew older and continued to exhibit this clumsinеss, however, did the possibility of a neuromuscular defect become detectable to the trained eye.
I. Statute of Limitations
Dr. Krusen and Baylor moved for summary judgment, claiming that the Nelsons’ actions were barred because they were not brought within two years of the last examination by Dr. Krusen. The defendants relied on the limitations period prescribed by article 5.82, section 4 of the Insurance Code, which provides:
Notwithstanding any other law, no claim ... for compensation for a medical treatment or hospitalization may be commenced unless the action is filed within two years of the breach or the tort complained of or from the date the medical treatment that is the subject of the claim or the hospitalization for which the claim is made is completed ....1
The limitations period of article 5.82, by its terms, arguably began running on the date of the last examination by Dr. Krusen or on the date of Mark’s birth and barred the Nelsons’ claims two years later. Under our holding in Sax v. Votteler,
In Gaddis v. Smith,
The Nelsons challenge the statute on several constitutional grounds. They claim that the statute denies them equal protection and due process under the fourteenth
... All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.
Tex. Const, art. I, § 13. The Nelsons argue that this guarantee of a remedy by due course of law makes any legislative attempt to bar their cause of action prior to its discovery unconstitutional. Our disposition of the Nelsons’ open courts argument makes consideration of the other constitutional claims unnecessary.
The numerous decisions of this court construing article I, section 13 establish that the guarantee of a remedy by due course of law is a substantial right, independent of other constitutional provisions. Although sections 13 and 19 of article I both guarantee due process, Sax v. Votteler,
The common thread of this court’s decisions construing the open courts provision is that the legislature has no power to make a remedy by due course of law contingent on an impossible condition. In H. Runge & Co. v. Wyatt, 25 Tex. (Supp.) 291 (1860), the court was faced with the issue of whether a defendant had the right to be sued in his home county when that county was newly severed from an existing county and did not yet have courts. Relying on the open courts provision, the court concluded that the legislature could not have intended to force plaintiffs to sue in a county where there were no tribunals to provide a remedy by due course of law. Id. at 294; accord Clark v. Goss,
In Dillingham v. Putnam,
This principle was best illustrated in the case of Hanks v. City of Port Arthur,
Can it be “due process” to say that although she did not see the defect, and did not know of its existence, yet before she can recover for the city’s wrongful act (if it was wrongful), she must have notified the city of the defect twenty-four hours before she received her injuries?
[I]t is obvious that notice of the defect, to be made by one ignorant of its existence, twenty-four hours before the subsequent injury, is unreasonable. A different question would be presented if the notice requirement applied only to those who had knowledge of the defect which brought about the injury. To*922 require notice of those who knew nothing of a defectivе condition is to impose an unreasonable condition precedent to recovery, and which is, we believe, beyond the legislative power.
Id.
Would that be reasonable? Is the requirement of a thing impossible from an infant, or one incapacitated for any reason due process? We think not; and yet it is a condition precedent to recovery .... Obviously the charter requirement in respect to the notice here involved is unreasonable, and, if unreasonable, it violates the due process clause of the Constitution.
Id. (emphasis added).
The court in McCrary v. City of Odessa,
The reasoning of these decisions was reaffirmed in Sax v. Votteler,
The minor plaintiff, Lori Beth Sax, satisfied the first criterion, because she was denied an established common law cause of action for malpractice. See, e.g., Texas & P. Ry. Co. v. Morin,
These decisions lead to the conclusion that article 5.82 as applied here violates the open courts provision by cutting off a cause of action before the party knows, or reasonably should know, that he is injured. How is the impossible condition placed on the Nelsons any less onerous than requiring a party to sue where there are no courts? See H. Runge & Co. v. Wyatt, 25 Tex.(Supp.) 291 (1860). How is the condition less arbitrary than requiring a bond from one unable to pay? See Dillingham v. Putnam,
There is no qualitative difference between the unreasonable condition imposed on the Nelsons and those previously struck down by this court. In one respect, the circumstances in the present case are even more compelling than in Sax and McCrary. In those cases, it was possible for the parents to bring their children’s suits in time, even if limitations were allowed to run. In the present case, if the Nelsons’ assertions are true, the nature of the injury made it unreasonable to expect that anyone, parent or child, would be able to bring suit within two years.
The limitation period of article 5.82, section 4, if applied as written, would require the Nelsons to do the impossible — to sue before they had any reason to know they should sue. Such a result is rightly described as “shocking” and is so absurd and so unjust that it ought not be possible. Hays v. Hall,
Neither Sax v. Votteler,
The legal issue in Robinson v. Weaver is distinguishable as well. Robinson involved the construction of article 5526, Tex.Rev. Civ.Stat.Ann. The question was whether in a misdiagnosis case the court should construe the accrual language of that statute to mean the date on which the injury was discovеred, as had been done in Gaddis v. Smith,
We hold that article 5.82, section 4 of the Insurance Code as applied in this case violates the open courts provision of article I, section 13 of the Texas Constitution. Therefore, the parents’ cause of action for “wrongful birth” is not barred by limitations. In Jacobs v. Theimer,
II. Wrongful Life
The remaining issue in this case is whether we should grant the child a cause of action for “wrongful life,” a question not reached in Jacobs. Mark, through his next friend, asserts that but for Dr. Kru-sen’s negligence in failing to inform the Nelsons of the risk of Duchenne muscular dystrophy, the Nelsons would have aborted the pregnancy. Therefore, the doctor’s negligence was the proximate cause of Mark’s being born, and having to live, in an impaired condition. The parents seek damages on Mark’s behalf as compensation for the added medical expenses and for the pain and suffering of having to live with muscular dystrophy.
The majority of states that have considered the issue have refused to adopt a cause of action for wrongful life. See Elliott v. Brown,
These cases give two general reasons for denying a wrongful life cause of action. The first is the courts’ unwillingness to hold that a plaintiff can recover damages for being alive. At heart, the reluctance of these courts is based on the “high value which the law and mankind has placed on human life, rather than its absence.” Becker v. Schwartz,
In an effort to meet these objections, the highest courts in three states have adopted what might be called a limited wrongful life cause of action. In Turpin v. Sortini,
Despite the efforts of the Turpin, Harbeson and Procanik courts, we do not believe that the issue can be so easily limited. The basic rule of tort compensation is
Our holding is not based on a mere difficulty in assessing a dollar amount of damages. It has long been held that imprecision of damages is not a bar to recovery. Hindman v. Texas Lime Co.,
To summarize, we hold that article 5.82, section 4 of the Insurance Code as applied in this case violates the open courts provision, article I, section 13 of the Texas Constitution. We also hold that there is no cause of action in Texas for wrongful life. The judgments of the trial court and court of appeals are reversed in part and affirmed in part. The cause is remanded for trial on the parents’ cause of action.
Notes
. Act of June 3, 1975, ch. 330, § 1, 1975 TEX. GEN.LAWS 864, repealed by Medical Liability and Insurance Improvement Act, ch. 817, pt. 4, § 41.03, 1977 TEX.GEN.LAWS 2039, 2064. Essentially the same provisions are now found in TEX.REV.CIV.STAT.ANN. art. 4590Í, § 10.01 (Vеrnon Supp.1984).
. Amended by Act of June 13, 1979, ch. 716, § 1, 1979 TEX.GEN.LAWS 1768.
Concurrence Opinion
concurring.
I concur in the result reached by the majority.
I. WRONGFUL BIRTH
At first blush, the majority opinion appears to apply art. I, sec. 13 of the Texas Constitution in such a way as to sustain a judicial innovation, a “wrongful birth” cause of action, and strike down a well-recognized legislative prerogative, a statute of limitation. This is not the case. Rather, what we do today is sustain a well-established cause of action against a novel exercise of legislative power.
In Jacobs v. Theimer,
This observation is neither academic nor trivial. Rather, recognition that we are dealing with nothing more nor less than the traditional elements of a negligence cause of action is pivotal to resolution of both the
It naturаlly follows that I cannot agree with the majority opinion’s statement that “[i]n Jacobs v. Theimer,
Art. 5.82, sec. 4 of the Insurance Code, although referred to as a “statute of limitation,” is by no means a traditional limitation act. In fact, a number of courts and commentators have begun to differentiate between such statutes and traditional limitation acts, and would term legislation such as art. 5.82, sec. 4 a “statute of repose.” See, e.g., Note, Medical Malpractice Statute of Repose: An Unconstitutional Denial of Access to the Courts, 63 Neb.L. Rev. 150,153 (1983); Comment, Statutes of Repose in Products Liability: Death Before Conception, 37 Sw.L.J. 690-2 (1983) (classifying art. 5.82, sec. 4 as a “statute of repose”). Texas courts have traditionally used the terms “limitation” and “repose” interchangeably, since one purpose of a statute of limitation is to permit repose. See, e.g., Davis v. Howe,
A traditional statute of limitation is usually intended to compel a plaintiff to bring a claim to court within a reasonable period of time after the cause of action arises. Such a statute encourages diligence, and has as its primary purpose the prevention of stale claims. Robinson v. Weaver,
Texas courts traditionally accord wide deference to the legislature’s right to establish statutes of limitation, but even that deference has long had limits.
“The legislature may provide a shorter period of limitation for existing causes of action. It may make a statute of limitation for causes when none existed before,*927 but it cannot, by so abbreviating the time in which suit must be brought, take away the right of action altogether.”
Wright v. Hardie,
In the case at bar, the constitutional analysis is not difficult. This court need look no further than Sax v. Votteler, 648 S.W..2d 661 (Tex.1983), a decision scarcely one year old, involving the same statutory provision, the same constitutional challenge, and decided by a unanimous court.
Sax set forth a two-pronged test for the constitutionality of a statute challenged as violating the Texas “Open Courts” provision. The first question is whether the litigant has a “cognizable cause of action that is being restricted.” Sax,
The second prong requires the court to balance the purpose and basis of the statute against the restriction on the litigant’s rights. Id. This court recognized a legitimate legislative purpose for art. 5.82, sec. 4 of the Insurance Code in Sax,
In determining the extent of the restriction on a litigant’s rights, a cоurt must not examine the effect of the challenged statute in isolation. The legislature can avoid an otherwise unconstitutional result by providing a substitute remedy, Lebohm v. City of Galveston,
In Sax, this court noted that the effect of the statute was to deny a minor plaintiff a remedy for a well-established common law wrong. Lori Beth Sax was prohibited by law from bringing suit on her own behalf during her minority, and was barred from suit upon coming of age by the language of art. 5.82, sec. 4. This court noted and rejected the alternative of a suit by parents on the child’s behalf, reasoning that this did not provide adequate protection for the child’s rights. Sax,
The parents’ cause of action in Sax stood on a different footing. Nothing prohibited them from suing on a known cause of action during the two years permitted by statute. The two-year period thus presented a reasonable alternative for the parents, and art. 5.82, sec. 4 was not unconstitutional as it applied to them.
In Sax, this court was not called upon to decide the constitutionality of the two-year provision as applied to an adult who — due to the undiscoverable nature of a medical problem — could not have brought suit within the statutory period. The answer is nonetheless clear. The restriction upon the rights of the Nelsons in this case are at least as severe as those upon the minor plaintiff in Sax. Lori Beth Sax was prohibited by statute from bringing suit even had she acted with utmost diligence at her first practical opportunity, the age of majority. The Nelsons were prohibited by the same statute from bringing suit even had they acted with utmost diligence at their first practical opportunity, discovery of the injury-
There is only one distinction between Sax and the instant case. Lori Beth Sax had an alternative, the possibility of suit by her parents on her behalf. That alternative was held to be inadequate to protect her rights. The Nelsons have no alternative, under the facts of this case. If art. 5.82, sec. 4 was unconstitutional as applied to Lori Beth Sax, it must equally be held unconstitutional here. As one student commentator has recently noted:
*928 “The effect of this restriction, like that on a minor’s cause of action in Sax, is not merely to place an outside limit on when a cause of action may be brought. Instead, it eliminates the right to bring a legal action. It is unreasonable to assert that this class of litigants must be sacrificed fоr lower malpractice rates. They, as much as any other victims of malpractice, are entitled to their day in court. Sax opens the courthouse doors for minors who were left unprotected by the statute. Its reasoning should ultimately do the same for injured parties who are prevented from bringing their claim because they could not discover the injury within the two-year limitation period.”
Note, Sax v. Votteler, 21 Hous.L.Rev. 295, 309 (1984).
Since Sax v. Votteler controls this case, I find it unnecessary to decide the issue of whether art. 5.82, sec. 4 has legislatively abolished the “discovery rule.” While this might well have been the legislature’s intent, the initial question should be whether, considering the language of the statute itself, the legislature has in fact done so. I would reserve that question for an appropriate case.
II. WRONGFUL LIFE
Like the majority, I decline to recognize a legally cognizable claim in negligence for “wrongful life.” I differ, however, with the emphasis of the majority opinion. I would place no reliance whatever on a public policy placing a “high value ... on human life, rather than its absence,”
“There is ... no general requirement that the injured person should prove with ... definiteness the extent of harm that he has suffered as a result of the tort-feasor’s conduct. It is desirable ... that there be definiteness of proof of the amount of damage as far as is reasonably possible. It is even more desirable, however, that an injured person not be deprived of substantial compensation merely because he cannot prove with complete certainty the extent of the harm he has suffered.”
Restatement (Second) of Torts § 912, comment a (1979).
The reason for permitting the Nelsons a cause of action, but denying a similar cause of action to their son is simple: the claim of the parents arguably contains all the elements for a prima facie case in negligence; the claim of the child does not.
Viewing Dr. Krusen’s alleged conduct from the standpoint of the parents, under the summary judgment evidence and pleadings a viable suit in negligence is presented. The elements of actionable negligence are duty, a breach of that duty, an injury to the person owed the duty, and proximate cause. Pullman Co. v. Caviness,
The “wrongful life” cause of action must be viewed from a different perspective, that of the child. With the child as a plaintiff, a suit in negligence is difficult to conceptualize. Courts examining “wrongful life” suits have had difficulty with virtually every element of the cause of action — the nature of the duty, if any, owed
I am most concerned by the element of injury. We cannot compare Mark Nelson’s current condition, life as a victim of muscular dystrophy, with the alternative of a normal, healthy childhood. Were this so, the fact of injury would not be in issue, and the sоle question would be the calculation of the extent of damages. Under the summary judgment evidence, the same medical advice that was the proximate cause of his affliction must be assumed to be the cause of his life itself. To determine whether Mark Nelson has suffered an injury in fact, then, his life with physical impairment must be compared to the alternative of nonexistence.
This calculation cannot rationally be made, as man knows nothing of nonexistence, and can assign it neither a positive nor a negative value. Unfortunately, the fact of injury is a prima facie element in a cause of action for negligence. Johnson v. Sovereign Camp, W.O.W.,
Therе is no inconsistency between permitting a cause of action for the parents, but not for the child. The difference is the identity of the parties. For the parents, the alternatives to be considered in determining whether there has been any injury in fact are no child, and no medical expenses, or a child with physical impairment resulting in medical expenses the parents are obligated to pay. The fact of injury is apparent. For the child, though, the alternatives are existence in an impaired state, or nonexistence. The fact of injury is not only not apparent, but unknowable.
The distinction between the parents’ and child’s cause of action has also been explained in a somewhat different fashion:
“When the plaintiff alleges that his own birth was wrongful, in effect he asks the court to judicially determine that he should not have been allowed to live, but when another person such as a parent alleges that the infant should not have been born, the parent does not seek to negate his own present existence. The parent is in reality seeking damages for injuries causally related to the fact of birth, but not for the birth itself. Thus, the parents are not placed in the anomalous position of trying to sue themselves into oblivion, as are the children.”
Comment, Wrongful Birth: The Emerging Status of a New Tort, 8 St. Mary’s L.J. 140, 145 (1976) (emphasis added).
It is worth noting that most other jurisdictions make the same distinction as this court makes today, finding no logical inconsistency between permitting a cause of action for the parents, but not for children. As the Supreme Court of Georgia observed earlier this year:
“An action brought by a child against the parents or physician on the theory that because of his illegitimacy or birth defects he would have been better not born has found almost no support in the law. However, most jurisdictions now allow an action by parents against the physician' for wrongful pregnancy or wrongful conception.”
Fulton-DeKalb Hospital Authority v. Graves, 252 Ga. 441,
Recently, California and Washington courts have permitted a limited right of recovery for a child presenting a “wrongful life” claim. See Turpin v. Sortini,
A court should not, however, discard established principles of tort law sub silentio in an attempt to reach a “right” result. Close examination of the California and Washington opinions reveals such an unexplained gap in the decisional reasoning.
The California Supreme Court distinguished between general and special damages in a “wrongful life” setting, denying the former, yet permitting the latter. Explaining why general damages could not be assessed, the Turpin court observed that “the problem is not ... simply the fixing of damages for a conceded injury, but the threshold question of determining whether the plaintiff has in fact suffered an injury by being born with an ailment as opposed to not being born at all.”
Thus, the California Supreme Court, in denying general damages, seems to have explicitly conceded that a prima facie element of the tort was not established. In deciding to award special damages, however, the Turpin court ignored the reasoning that prevented an award of general damages. The problem of establishing the fact of injury was simply passed over, and all discussion focused on the nonspecula-tive nature of a recovery for medical expenses.
The Washington decision suffers from the same logical weakness. In Harbeson v. Parke-Davis Inc.,
The Washington Supreme Court acknowledged that “[t]he most controversial element of the [wrongful life] analysis in other jurisdictions has been injury and the extent of damages,” and conceded that “measuring the value of an impaired life as compared to nonexistence is a task that is beyond mere mortals, whether judges or jurors.” Harbeson,
Nonetheless, the New Jersey court awarded special damages. The reasoning of the court is explicit. Quoting a dissenting opinion in Gleitman, the New Jersey court observed that “while logical objection may be advanced to the child’s standing and injury, logic is not the determinative factor _” Procanik,
“We need not become preoccupied ... with ... metaphysical considerations. Our decision to allow the recovery of extraordinary medical expenses is not рremised 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.”
Id.
While the sentiments of the New Jersey, court may be laudable, this court is precluded from reaching such a result. To reiterate, the pleadings and briefs of plaintiffs in this case are based in negligence. While this court is not adverse to reexamining and modifying traditional negligence concepts to meet changing social needs, see Otis Eng’g Corp. v. Clark,
This court neither addresses nor decides the question of whether some day, under some different theory, a plaintiff might prevail under similar facts. “New and nameless torts are being recognized constantly, and the progress of the common law is marked by many cases of first impression, in which the court has struck out boldly to create a new cause of action, where none has been recognized before.” W. Prosser and W. Keeton, The Law of Torts § 1 (5th ed. 1984). The claim of Mark Nelson, however, simply fails to state a cause of action in negligence and must be denied.
. Despite the fact that such labels occasionally obscure as much as they clarify, they will be used for convenience in this opinion, as they are in widespread use by courts and commentators. See discussion in University of Ariz. Health Sciences Center v. Superior Court,
. For a similar reason, Restatement (Second) of Torts § 920 (1979) is irrelevant to my decision. Sec. 920 applies only when calculating damage awards; it presupposes that the plaintiff has established the element of harm. Since a "wrongful life” plaintiff cannot meet this initial burden, § 920 principles need never be considered.
. The failure of the California and Washington courts to establish the logical basis for a "wrongful life” action — the existence of harm or injury — has not escaped the attention of commentators. With reference to the California decision in Turpin, it has been observed that “[t]he court's unsuccessful attempts to justify an award of special damages betray its failure to appreciаte fully the fundamental flaw of a wrongful life claim. No wrongful life plaintiff, even with severe defects, can prove she has suffered harm, and the obstacle is not merely
Likewise, Harbeson v. Parke-Davis, Inc. has drawn justified criticism because the Washington court’s “logic does not support its conclusions. It failed to demonstrate that birth with defects is an injury to the child. Because this essential premise is unsupported, no duty to the child should be imposed on the physician to prevent the child’s birth with defects, and no damages for wrongful life should be allowed to compensate for the unproven injury.” Note, Washington Recognizes Wrongful Birth and Wrongful Life — A Critical Analysis, 58 Wash.L. Rev. 649, 677-78 (1983).
Concurrence Opinion
concurring and dissenting.
I concur with that part of the majority opinion which would reverse the judgments of the courts below and remand Tom and Gloria Nelson’s cause of action to the trial court. However, I respectfully dissent from that portion of the majority opinion which declines to recоgnize Mark Nelson’s claim for medical expenses and special
In reality, the court’s decision denying Mark’s right to a negligence claim is contrary to fundamental policies and principles that have become the basis of tort law. Originally, forms of actions were rigidly prescribed, and the plaintiff had no cause of action unless he could fit his claim “into the form of some existing and recognized writ.” Prosser, Law of Torts § 4 at 19 (4th ed. 1971). Since that small beginning about 150 years ago, tort law has become a dynamic and flexible system of law designed to properly allocate losses that arise out of human aсtivities.
“The entire history of tort law shows a continuous tendency to recognize as worthy of legal protection interests which previously were not protected at all.” Restatement (Second) of Torts § 1 comment e (1965). Although tort law's primary purpose is compensation for wronged plaintiffs, that has never been its only goal. Courts have always sought to reflect and adapt to changes in society acting to balance both individual and societal interests. Our courts have always recognized and used tort law’s unique ability to deter wrongdoing as a means of social policy. Restatement (Second) of Torts § 901 (1965). This concept has in fact become a part of Texas law. See McKisson v. Sales Affiliates, Inc.,
Today we are confronted with the compelling responsibility of imposing legal accountability upon an aspect of medicine that is rapidly becoming a predominant social force. Genetic knowledge and expertise have increased as fast as any other medical specialty in the last ten years. Estimates now indicate that 12 million Americans suffer a type of genetic disease. See H.R.Rep. No. 498, 94th Cong., 1st Sess. 18-19 (1975) reprinted in [1976] U.S.Code Cong. & Ad.News 709, 726-27. Over 40% of аll childhood diseases are caused partly by genetic factors. Day & Holmes, The Incident of Genetic Disease in a University Hospital Population, 25 AmJ.Human Genetics 237 (1973). Downs’ Syndrome alone costs society $1.7 billion dollars. House Report at 727. The ability to predict genetic disorders prior to birth has improved to the extent that at least 66 different genetic diseases are presently diagnosable prior to birth. Milunsky, Genetics and The Law, 54 (1976).
Despite the rapidly expanding impact of genetic knowledge upon our society, the law has failed to keep pace. Capron, Tort Liability in Genetic Counseling, 79 Co-lum.L.Rev. 618 (1979). Although today’s society is not the genetically controlled one anticipated in Aldous Huxley’s Brave New World, a doctor’s power to control genetic information, without restraint, may have subtle, far-reaching and devastating effects on family planning. Only by assuring a doctor’s legal accountability can we guard against an abuse of such power.
■ The decision to have children is fundamental to the very existence of a family. Mark Nelson as a practical matter could not make that decision for himself. The right to make that decision belongs to no one other than his parents. Yet that right is only meaningful if it is an informed decision. The right to an informed decision with regard to future offspring emphasizes the need for legal safeguards in this area. The majority opinion, by refusing to impose
No difficulty is created by permitting Mark to allege common law negligence. In a genetic malpractice or wrongful life action, the genetically impaired child alleges that the negligence of the physician or other genetic counselor, by failing to inform his parents of the risk of giving birth to an impaired child, caused his birth. Comment, “Wrongful Life”: The Right Not To Be Born, 54 Tul.L.Rev. 480, 485 (1980); Harbeson v. Parke-Davis,
Mark alleges Dr. Krusen had a duty to provide the Nelsons with accurate information to enable them to make an informed decision of whether to give birth to Mark and that this duty flowed directly to him. I agree. But more importantly, neither Dr. Krusen nor the hospital deny that this duty was owed. This duty is within the Texas rule that a physician must properly inform a patient. See Roark v. Allen,
However, merely because a child is born in an impaired condition does not mean that the physician has breached this duty. His conduct must be measured against the degree of skill, care and knowledge possessed and exercised by others engaged in genetic counseling. The child must show by affirmative proof that the defendant did not meet this standard.
In a genetic malpractice action, the child must prove not that the defendant’s negligence caused his injuries but that it caused his birth. The child, like his parents in a wrongful birth action, must show that but for the defendant’s negligence in adequately detecting and/or informing his parents of his condition or of the risk, he would never have been born. Note, Wrongful Life: Should The Cause Of Action Be Recognized, 70 Ky.L.J. 163, 177-78 (1982);
The majority opinion does not deny that Dr. Krusen owed a duty to Mark through his parents. Nor does the majority object to Mark’s ability to prove either breach of that duty or proximate cause. Instead, the majority argues that as a matter of law, Mark is unable to prove injury, because in weighing life against nonlife, “it is impossible to rationally decide whether the plaintiff has been damaged at all.”
Nonetheless, in reaching the decision that Mark can never prove injury, the majority has impliedly held that in a court of law, life, however defective, is preferable to nonexistence, a thing the majority contends is incapable of measurement. To reach this value decision, the court has relied upon case law resting on the “high value which the law and mankind has placed on human life, rather than its absence. Becker v. Schwartz,
Our decision in Jacobs v. Theimer and the decision today allow parents to recover for the “wrongful birth” of their child. By necessity this claim also requires a choice between competing values. A jury considers the intangible benefits of having a child, regardless of the child’s defects, a measure of life versus nonlife. It is difficult to understand why the court allows recovery for the parents but not the child— why life versus nonlife is capable of measurement in one instance but not the other.
The absurdity of distinguishing between the two claims also is demonstrated by the practical effect of awarding damages to the parents. Since the child will be the real, if not formal, beneficiary of the parents’ recovery for health care and other expenses, any remaining difficulty in allowing claims directly on behalf of an affected child seems shortsighted, especially if it is based on metaphysical refinements. See Capron, supra, at 639. Limiting recovery to the parents creates additional conceptual and legal problems. Because expenses in such cases were proximately caused by the doctor's negligence, denial of Mark's claim improperly allocates costs. Since the child is permittеd no claim, unlike other suits brought by parents on behalf of their children, the child is not protected by a trust. Nor is the recovery placed in the registry of the court. Because some parents will be either unable or unwilling to support their child after adulthood, the child should have an “independent recovery to cover his extra costs of living with a genetic defect.” Comment, A Preference for Non-Existence: Wrongful Life to a Proposed Tort of Genetic Malpractice, 55 S.Cal.L.Rev. 477, 500 (1982). If a child is left without parents, the costs for support will be borne by someone else, often the state. Denial of a wrongful life claim could allow a doctor to be a wrongdoer without requiring him to compensate the person wronged most. As such, the court’s action not only undermines a primary purpose of tort law, but it also weakens another policy, the deterrent function of imposing liability. Prosser, supra, § 4 at 23. See also Calabresi, The Costs of Accidents 73-75 (1970).
Finally, it must be noted that other courts have awarded special damages to children in Mark’s condition. See Turpin v. Sortini,
Dissenting Opinion
dissenting.
I respectfully dissent from the court’s opinion. It is not necessary for us to reach the question of whether TEX.INS.CODE ANN. art. 5.82 § 4 (1975) (now TEX.REV. CIV.STAT.ANN. art. 4590i § 10.01) (Vernon’s Supp.1984) is unconstitutional because all issues can be disposed of on other grounds.
The court’s opinion is inconsistent in holding that the parents have a cause of action for wrongful birth but that the child does not have a cause of action for wrongful life. The court’s opinion is merely using the labels of “wrongful life” and “wrongful birth,” the meaning of which is the same, in an attempt to differentiate truly identical causes of action; one which is brought by the parents, and the other which is brought by the child. On the one hand the court is saying that the child has no cause of аction for wrongful life based upon the public policy that life, in whatever condition, is more valuable than non-life. On the other hand, the court does an about-face and holds that the parents have a cause of action for wrongful birth. In so doing, the court ignores the logical extension of its prior statement that courts are unable to make a comparison between life in whatever condition as opposed to non-
I would overrule Jacobs v. Theimer,
I would affirm the judgments of the courts below holding that the Plaintiffs Tom L. Nelson et al. take nothing.
McGEE, J., joins in this dissent.
Concurrence Opinion
concurring and dissenting.
I concur with the holding of the majority that the statute of limitations in Tex.Ins. Code Ann. art. 5.82 § 4 (currently Tex.Rev. Civ.Stat.Ann. art. 4590i § 10.01) is unconstitutional because of its violation of Tex. Const, art. I, § 13. I also agree with the court’s holding that Mark has no cause of action for “wrongful life.” Moreover, for the reasons stated in Justice Wallace’s dissenting opinion, I agree that Mark’s parents have no cause of action for his “wrongful birth.” I respectfully dissent from this portion of the majority opinion.
This case presеnts some very difficult questions, both moral and legal. When courts are forced to contend with issues involving life and death such as those presented in this case, a merger of our concepts of morality and law is unavoidable.
Since the United States Supreme Court’s decision in Roe v. Wade,
Parents should not be given a legal entitlement to a perfect child. By recognizing the right of Mark’s parents to abort him prior to his birth or the right to sue the doctor and the hospital for damages due to his birth, the majority of the court approaches this entitlement. It is my hope that the courts and legislatures of this nation, and our society, will continue to ponder the meaning and value of life, even that of those yet unborn. Through this process of reflection and discussion, hopefully the pendulum of public opinion will swing toward the recognition of the rights of the unborn.
I too would overrule Jacobs v. Theimer,