*1 Dist., July Second Div. One. B035667. 1989.] [No. SIMMONS, Minor, etc., al., et Plaintiffs and
BRENNAN Appellants, al., et Defendants and
WEST MEDICAL CLINIC COVINA Respondents.
Counsel Nancy
Adel & Pollack and P. Adel for Plaintiffs Appellants. Levine, Aldrich, Sacks, Harvey Gary R. Herzog, Ian Richard D. Leonard DeVries, Gwilliam, Gage, Sanford Bruce Steinberg, Douglas Robert Wrinkle Amici Curiae on behalf of Plaintiffs and Broillett and Roland Appellants. Lisenbery R. Mary & E. Porter and John
Hagenbaugh Murphy, Defendants and Respondents. Axelrad, Horvitz, Barry M. R. and M. Levy, Levy
Horvitz & Ellis J. David behalf of Defendants and Respondents. Reed Hunter as Amici Curiae on Opinion case,
ORTEGA, J. this we conclude mother and child have failed to establish their causes of action for birth and respective wrongful life. Even if the defendant had physician provided expectant *4 test, mother with a certain the test’s 20 genetic of detect- percent probability Syndrome the risk of falls far ing requisite Down’s short of reasonable summary medical standard of causation. We affirm the judg- ment for defendants.
Facts Ali, M.D., Defendant Suneetha cared for Brenda plaintiff Simmons dur- ing her pregnancy defendant West Covina Medical Clinic. On September 29, 1986, Simmons, Brenda gave Simmons birth to Brennan plaintiff who is Syndrome. afflicted with Down’s Plaintiffs filed this action defend- against birth, ants for negligence, and wrongful wrongful life on June 1987.1 According allegations of the operative defendants pleading, negli- gently failed Brenda Simmons provide with appropriate genetic testing and counseling, thus her the denying to discover the genetic defect in her unborn child. Had she abnormality, learned of the she would have terminated the pregnancy. matters,
Following preliminary defendants procedural moved for sum- mary judgment, contending as a matter of law de- cannot prove fendants’ negligence caused the harm. For the only, of their motion purpose defendants they conceded negligent were to advise Sim- failing Brenda mons concerning genetic test known as the maternal serum Alpha However, test Fetoprotein (AFP test). defendants their argued negligence born, did not cause Brennan proximately Simmons to be because the AFP Simmons, minor, brings by Brennan wrongful through his cause of action for life litem, Simmons, guardian brings his mother and ad Brenda her cause of action who also own “wrongful by “wrongful for birth. The terms life” for actions the child and birth" by parents adopted Supreme (Turpin for actions been the California Court. 220, 225, Sortini 954].) Cal.3d fn. 4 643 P.2d risk of Down’s only detecting
test percent probability provides Syndrome. concerning uncontroverted evidence following
The record contains the of Regula- 17 of the California Code the AFP test. Section of chapter tions, of the Health section 289.7 April pursuant enacted Code, in their care clinicians to advise all women Safety pregnant requires tube of neural availability “pre-natal screening of the AFP test first given This must be at the woman’s defects of fetus.” information visit, 20 weeks of gestation. she is within first prenatal provided test, on performed involves the woman’s blood taking sample, AFP gestation. the 16th and 20th week of voluntary basis between Ser- of Health Legislature Department when the directed fetal identify AFP test test was known to develop vices to regulations, later, anencephaly. tube such as bifida and It was neural defects spina low maternal association was between possible reported Syndrome. Approximately percent pregnant serum AFP and Down’s Syn- under are at risk with to Down’s age respect women who However, the test. about through drome will be identified risk not be through women in that who are at will identified age group AFP test. *5 Syndrome, of the pregnant
When the AFP test discloses a risk Down’s test, an This woman is referred for a second known as amniocentesis test. sac and of amniotic fluid from the in which testing involves withdrawal mother, higher in the and risk unborn child rests carries Currently, than the AFP women pregnant mother fetus does test. routinely of 35 not amniocentesis test. Accord- age given under the are women, only commonly used ingly, for these AFP test method identify Syndrome. the risk of Down’s summary for granted judgment,
The trial court defendants’ motion defendants not cause the harm since there was a less finding proximately did test have than 50 chance AFP would detected risk Syndrome. summary judgment. Down’s Plaintiffs from the appeal
Issues We must as matter of (1) decide whether defendants demonstrated harm even they law that did not cause the because with proximately discovering AFP test there was no reasonable medical nevertheless be Syndrome, risk of Down’s whether should (2) the harm. avoiding their less than even chance of compensated losing
Discussion 1. Causation
Summary judgment, a drastic which denies the adverse procedure merits, a trial right on the should be with caution. party granted 18, 762, (Mann v. Cracchiolo Cal.3d 694 P.2d Cal.Rptr. 1134].) Summary judgment should be the evidence in granted when support moving party establishes that there is no issue of fact to be Proc., tried. (Code Civ. The bears the 437c.) moving burden party § of furnishing documents to establish the adverse supporting party’s claims lack merit theory. under Court legal (Lipson Superior 362, Cal.3d 644 P.2d court Cal.Rptr. 822].) strictly will affidavits, construe the while moving party’s liberally those of construing Bradstreet, the adverse party. (Stationers Dun & Inc. Corp.
Cal.2d 785].) Any doubt con cerning the propriety granting the motion should be resolved in favor of the adverse party. (Ibid.) recognizes
California a parent’s cause of action for the wrongful birth of a genetically deformed child where the physician negligently failed Sortini, to inform the of the risk of such parent bearing a child. (Turpin Cal.3d pp. 239.) California also a cause recognizes action for life by the genetically deformed child. But in (Ibid.) jurisdictions, most recovery by the child genetically deformed “has been uniformly on the dual grounds denied (a) legal remedy contradicts value, fundamental belief that human has life and (b) measuring dam ages of an comparison life with impaired nonexistence impossible. Witkin, Torts, (6 Summary Cal. (9th Law ed. [Citations.]” § p. 143.) *6 action,
In a successful and wrongful birth life the wrongful parents may recover extraordinary for medical and and teaching training expenses incurred the during minority, child’s but the child also may not recover for Sortini, those same v. 31 at expenses. (Turpin supra, Cal.3d The p.238.) child may recover medical and where the expenses special damages parents are unavailable to or where beyond sue the are incurred the expenses time of However, the parents’ legal responsibility for such care. (Ibid.) the child may not recover for and and pain suffering general (id. other at damages pp. 238-239), such as v. loss earning capacity (Andalon Superior Court 162 (1984) 614 Cal.App.3d Cal.Rptr. 899]). [208 cases, ordinary As in medical malpractice wrong a plaintiffs ful life and birth case following must establish the basic elements:
702 skill, duty diligence such and professional prudence, use
“(1) exercise; a commonly (2) his members of profession possess other between the duty; (3) negli- of that a causal connection breach proximate damage loss result- injury; (4) and the actual gent resulting conduct 6 (Budd v. Cal.3d Nixen negligence.” ing professional’s Sortini, 31 supra, 200 491 P.2d Cal.Rptr. Turpin [98 229-230.) proximate sole element at issue here that of Cal.3d at The pp. cause. California, re cannot
Under above described principles mere defendant’s only negligence where there is a cover 163 Pharmaceutical wrong. (Jones Corp. caused the Ortho 456]; Morgenroth v. Medi 402-403 Cal.App.3d Pacific Center, Cal.Rptr. 681].) cal Inc. Cal.App.3d case, test have In this evidence shows the AFP would undisputed chance Brenda Simmons’s risk of provided only uncovering a percent there is Syndrome. birth a child with Down’s Defendants contend giving testimony” based competent expert thus no “reasonable medical probability upon at Cal.App.3d v. Ortho Pharmaceutical (J Corp., supra, ones AFP Simmons failure test Brenda p. 402), provide deprived their We agree. of the to terminate her pregnancy.
As stated Jones Ortho Pharmaceutical Corp., 396, there an obvious distinction between a reasonable exists Cal.App.3d There can be (Id. p. 403.) medical and a medical possibility. of, infinite can many, pro even an number circumstances which possible when, only an But a in the injury. “possible ‘probable’ duce cause becomes likely more of other reasonable causal it becomes explanations, absence This is outer limit of than not that the was result of its action. may upon jury. inference issue be submitted [Citation.]” (Ibid.) a significantly evidence in this case demonstrates undisputed predicting pregnancy.
less than chance outcome Cal.App.3d Unlike Curlender v. Bio-Science Laboratories (1980) test would have Cal.Rptr. 477], properly performed genetic where (id. disclosing Tay the risk provided “high probability” at p. disease, AFP provided Sachs test this case would *7 Syndrome. the percent disclosing chance of risk of Down’s “reasonably probable A mere 20 not chance does establish (Jones supra, v. Ortho Pharmaceutical Corp., causal connection” failure the provide defendants’ negligent at between Cal.App.3d p. AFP test A less than 50-50 that injuries. and plaintiffs’ the harm not meet the requisite defendants’ omission caused does (Id. cause. at p. 404.) reasonable medical test of probability proximate alternatively argue Plaintiffs triable issue of fact exists under the doc- trine enunciated in Lone Palm Hotel Cal.3d 756 Haft In Haft, a father and son drowned in a motel P.2d 465]. where, law, state or warning violation of no had been pool, lifeguard sign No witnesses observed the the motel’s provided. drownings. Recognizing provide failure made it lifeguard impossible plaintiffs prove accident, cause of the court shifted the burden of proof to the Haft prove drownings defendants to would have even if a lifeguard occurred had been court shift provided. The stated: of the burden of “[T]he Haft . . . may be rest on a said to that when there is a proof policy judgment substantial that a defendant’s was a probability negligence cause of an acci- dent and when the negligence defendant’s makes it as a impossible, practical matter, for plaintiff ‘proximate conclusively, causation’ it prove is more to hold appropriate deny the defendant liable than to an innocent plaintiff recovery, unless can the defendant prove negligence his was not a cause A, the injury.” 11 fn. (Id. at p. added.) italics on
Relying Haft, maintain plaintiffs defendants violated state laws and regulations AFP governing the testing program implemented to detect birth defects. But the chance avoiding the harm complying with the statute was dramatically higher than in In Haft, this case. a “reasonably Haft attentive lifeguard without would doubt have aware been of [the victims’] activities at the moment that the instant arose.” emergency (Haft Lone Hotel, Moreover, Palm supra, 3 Cal.3d at fn. 18.) Haft chances of successful rescue were “very such high” (ibid.), that the court noted the well plaintiffs “may succeed establishing that the absence of a in[ ] lifeguard was an actual cause deaths as a matter law even without a in the shift burden of proof (Ibid.) [citations].”
Here, hand, on the other the AFP undisputed facts show test would slim, provided only a percent chance of the harm. detecting As in Jones Ortho Pharmaceutical Corp., Cal.App.3d here would have us ignore fact that in there was a reasonable Haft presence lifeguard would have prevented drownings. (Id. pp. We cannot 405-406.) retroactively presume defendants’ failure to AFP comply with state testing regulations statutes and that there awas reasonable degree of medical test would probability have detected Syndrome Down’s case. this (Ibid.)
In view of the evidence of low undisputed plaintiffs’ probability of avoid- test, ing harm AFP even with the shift we decline to the burden of proof *8 and regula- failure with the statutes comply on the defendants’ to ground Given the absence tions it for to causation. impossible plaintiffs prove made testi- based upon competent expert of “reasonable medical probability mony” (Jones Corp., supra, Cal.App.3d Ortho Pharmaceutical Brenda failure to the AFP test deprived that defendants’ p. 402) provide conclude de- the to terminate her we pregnancy, Simmons of law that their con- successfully have demonstrated as matter of fendants harm. duct did not cause the proximately
2. Theory Recovery Lost Chance of of avoiding their low probability
Plaintiffs contend statistical for their lost recovering damages harm not them from prevent should could jury Plaintiffs assert a consider chance of terminating pregnancy. harm, their of but for avoiding low statistical probability unjust it is They apply of assert unfair and purpose calculating damages. this, cases such as the traditional medical test of causation to tangible lost chance rather than a compensable injury physi where the cal injury. filed briefs discussing and amici curiae have extensive parties
Both
jurisdictions
cases in
lost chance
foreign
adopted
numerous
recovery in
cases
the defendants’
theory
malpractice
negli
of
medical
where
e.g.,
of a less than even chance of survival.
gence
(See,
deprived
&
Cir.
F.2d
v. U.S.
Health Human Services
Dept.
(4th
Waffen
911;
131;
(Iowa 1986)
DeBurkarte
Louvar
393 N.W.2d
Herskovits
conc.
474],
Health
Many following language chance cases on the contained (1965): section 323 of the Restatement Second of Torts “One who under takes, consideration, or render to another which services gratuitously necessary he the other’s recognize should for the protection person harm things, subject liability resulting other for physical “majority” signatories, “concurring” opinion in Herskovits while the The has but two Thus, opinion dissenting signatories opinions have three between them. has four. two represents concurring opinion plurality Justice Pearson’s view.
705
his
if
undertaking,
(a)
failure to exercise reasonable care to perform
his
[fl]
. . .
(See
the risk of such harm
his failure to exercise such care increases
1280];
481
256
v. Sun
Thompson
Hamil v. Bashline
Pa.
A.2d
(1978)
[392
605].) Many
Inc.
But we a fundamental distinction between perceive chance of survival and a woman of the patient’s negligently depriving situation, chance to abort a defective child. In the former genetically may condition be attributable to a host of factors in addition to the patient’s Thus some that physician’s negligence. recognized courts have difficulties of identifying, defining these of medi proving types justify cal cases malpractice of more flexible standard of application Bashline, (See Dollinger, 399; causation. Evers v. N.J. Hamil v. supra, 95 child, 481 Pa. But in the case of a supra, 256.) genetically deformed it hereditary cannot be said that condition was caused the medical when no practitioner’s negligence degree of medical intervention could have where, here, worked a cure. And as probability predicting genetic defect is we think established tort percent, principles fairly impose liability only where there is a reasonable medical predicting the outcome of the pregnancy.
It is interesting to note that at least three of the jurisdictions
recog
theory
recovery
nize a lost-chance
in medical
cases do not
malpractice
child,
permit
for reasons of public
to recover for
life.
policy,
(Berman v. Allan
80 NJ. 421
Becker
8];
A.2d
v. Schwartz
[404
N.Y.2d
N.Y.S.2d
807];
N.E.2d
Fine
Speck
gold
A.2d
This
Pa.Super.
496].)
dichotomy illustrates
difficulty
both the tremendous
the value of an
life
weighing
impaired
nonexistence,
opposed
many
and the
different
ways
philosophically
society
views those two conditions.
case,
Under the facts of this
we decline to establish a more lenient stan-
dard of causation. To do so
contrary
would be
to sound logic,
legal
reasoning apparently
following
This line of
arose from the
dicta in Hicks v.
States
United
(4th
1966)
negligent
effectively
Cir.
precedent, Physi- purposes. and overtreatment defensive overtesting unreasonable *10 legal system of the necessary requirements find it to place cians would addition, the physicians’ and finances of the patient. before the needs adversely already high medical liability impact to would exposure increased The in costs. resulting spiral of consumer malpractice premiums, upward undoubtedly a uncertainty by ruling open proverbi- fostered such would system. judicial al of our overburdened floodgates We of established tort liability abandoning refuse to the circle expand only a of detect- law of causation where there is mere principles not intrude task upon Legislature’s defect. We do wish to ing genetic of and leave to it function public such matters of weighing policy, genetically to for those defective chil- remedy whether deciding provide a reasonable medical prove dren and their who are unable parents mother chance certainty negligence deprived medical terminate her pregnancy.
Disposition summary judgment. We Each to bear its own costs on party affirm appeal. J.,
Hanson concurred. (Thaxton), SPENCER, dissent. I would hold that the “lost oppor- P. J. I respectfully tunity” a case nature. doctrine of this applies view,
In my dealing the line of medical cases with a malpractice patient’s recovery of or from a or lost survival disease opportunity long-term analogy. majority jurisdictions condition a close In the provides recovery the courts for such a lost permit considered question, these one of three rationales. opportunity. Essentially, employ cases the lost itself as the jurisdictions courts some view liable, avoiding for which defendant is thus compensable negligent or recovery difficulties in causation where the chance of survival proving rely first instance less. These courts often significant Valuation, Causation, on Chance part thoughtful analysis King, Involving Preexisting Personal Torts Conditions and Future Conse Injury L.J. 1353. v. U.S. Health quences (1981) (See, Dept. 90 Yale e.g., Waffen 911, 1986) 918-919; & Cir. F.2d Hetrick v. Weim (4th Human Services (Iowa er DeBurkarte Louvar (1986) Md.App. A.2d 131, 135-138; Health 1986) 393 N.W.2d Herskovits Group Co-op. Pearson, James J.; see also conc. 486], opn. Wn.2d 609 v. Bero 587; Jordan F.Supp. (N.D.Cal. v. United States conc, Neely, J.) 640-641], opn., W.Va. 28 S.E.2d this issue direct- with yet have not as wrestled courts Although California States, California apply does F.Supp. v. United ly, James rely on the thus does not claim. James predates to a federal tort law it, attach article, liability will stating degree precursor but is to King in a a plaintiff placed a defendant’s conduct the evidence shows where have been. would *11 in otherwise plaintiff worse than that which position the expanded for adopting basis public policy There is a sound (At p. 585.) i.e., by King, viewing articulated analysis thoughtfully version of this so as the compensable has been worsened position to which degree plaintiff’s aby been impaired has longevity health or in cases where patient’s statutes, death part As embodied negligence. defendant’s one’s to live out right value on one’s society singularly high places our that freedom from of health greatest degree natural life in the span of others wrongdoing permits. of survival” cases the “lost upon opportunity
The second rationale
cases,
Gardner
rescue”
rely
particular
to “failure to
analogy
draws
Carriers,
284,
denied
Cir.
310 F.2d
certiorari
(4th
1962)
Bulk
Inc.
National
721,
duty
notes the
728],
L.Ed.2d
83 S.Ct.
Gardner
In the context of medical
“lost
malpractice
cases,
in dicta in Hicks
first
analogy
employed
the “failure to rescue”
was
“When a defend-
A lost of survival or opportunity rescue, may medical practitioner to a lost for the analogous opportunity effect, considered, in “rescue” of the patient be to undertake attempted However, is more strained analogy disease or condition. specific directly viewing the lost relatively straightforward approach than the injury. as the opportunity compensable
The third rationale in the “lost of survival” cases employed (a), of Torts section subdivision is derived from Restatement Second *12 ... render which “One who undertakes to provides pertinent part: necessary he for the recognize protec- services to another which should subject liability or to the other for person things, tion of the other’s care per- harm from his failure to exercise reasonable physical resulting (a) form his if his failure to exercise such care increases undertaking, [][] risk of such harm.” California this of tort expressly recognizes principle 18, liability. Williams v. State 34 Cal.3d (See (1983) 23[192 of California v. 137]; Cal 664 P.2d Heckmann Ahmanson Rptr. (1985) 119, 132 Cal.App.3d Cal.Rptr. 177].) [214 recovery for a lost jurisdictions rely on this principle permit recovery harm suffered recognize of survival or the ultimate underly-
(death
recovery)
as the
and the
incomplete
compensable
However,
a
ing
injury.
they
disease or condition as
cause of that
also
that the medical
has undertaken to
recognize
practitioner
protect
pa-
very injury
tient from this
and accurate
as well
through prompt
diagnosis,
Hence,
as effective treatment.
a failure to exercise due care in the undertak-
harm,
has,
a
ing also is cause of the ultimate
that the medical practitioner
the risk of harm.
v.
through
negligence,
(McKellips
his or her
increased
467, 471-473;
Saint
Inc.
v.
(Okla. 1987)
Francis
Herskovits
Hosp.,
476-477.)
Health
664 P.2d at
This is consistent with
Group
Corp., supra,
pp.
in the face of
analysis
traditional causation
California
employed
causative factors.
Vecchionev. Carlin
multiple
(Cf.
(1980)
Cal.App.3d
571].)
Cal.Rptr.
[168
work,
Recognizing
jurisdictions
the dual causative factors at
these
permit
go
jury
showing
case to
to the
once a
has made a
that the
plaintiff
Generally,
the risk of harm.
the courts
defendant’s
increased
negligence
in risk is a
for the
to determine whether that increase
acknowledge,
jury
it is
ultimate harm.
Saint Francis
causing
(McKellips
substantial factor in
Inc.,
475;
Dollinger
There is no mind but that the instant matter fits comforta- question Clearly, bly foregoing within first two of the rationales. defendants’ Brenda Simmons in a than that in negligence placed position worse plaintiff been, entirely which she otherwise would have her depriving oppor- tunity to learn information essential to her informed decision whether to continue her Similarly, there is evidence here which pregnancy. suggests there awas reasonable her from her it “rescuing” ignorance; may been but it existed and at least percent possibility, sufficient for determination the trier of fact. present question extent, if determining any, to which the rationales foregoing should be applied instant matter the critical is one of question public whether the interest at policy: here is entitled to legal protection stake negligence. (Smith Court Superior Cal.App.3d 496 [198 California, states, 829].) like other affords considerable protection *13 to a right woman’s to make an informed decision whether to continue with 1, v. pregnancy. (Foy Greenblott 141 8 (1983) Cal.App.3d Cal.Rptr. [190 Hence, 84].) a breach duty that a woman of deprives information which decision, may be necessary to such a or the reasonable to make decision, results in liability. v. Sortini 31 (Turpin Cal.3d 234 643 954]; P.2d see also Berman v. Allan 80 [182 N.J. 421 A.2d Becker v. Schwartz N.Y.2d 401 N.Y.S.2d 307].) N.E.2d
Some say courts have been reluctant it is better that a fetus not be born Allan, at all than that it be born defective Berman v. (see, e.g., supra, 12-13; A.2d at v. pp. Speck Finegold (1979) 268 A.2d Pa.Super. Schwartz, 496, 508]; Becker v. 900), N.Y.S.2d at their supra, p. limiting mother’s, concern protecting right or to make the decision. parents’, However, it clear becoming increasingly giving what massive toll birth cases, severely to a defective infant can take. In certain the child is con instances, demned to a brief many and tortured existence. In whole families suffer grave or even all damage destruction. Not are potential parents able to bear the and emotional burden attendant equally anguish upon birth infant. on the extent of the genetically damaged Depending may emotional “benefit” derived from the child’s existence impairment, by be the attendant v. United significantly outweighed anguish. (Phillips 1309, 1319-1320.) States (D.S.C. 1983) F.Supp. Fetoprotein
This raises the of whether the of the question purpose Alpha recovery screening by denying is best served program permitting failure to make it in circumstances such as those here. presented available Plaintiffs evidence that the test is presented part precisely important safely because it the sole vehicle for and at a modest cost provides detecting Syndrome. women at risk for Down’s pregnancies among younger high suggests testing This would not be served purposes program if the are from in a case adequately precluded recovering damages already such as this one. as a make this Inasmuch physician required Code, 289.7; routinely (Health test available to all women & Saf. pregnant § recovery clearly Cal. Code tit. would not Regs., 6527), permitting § thus, it testing unjustified overtesting; increase the burden of or result would not tend to increase medical costs.
Permitting recovery these circumstances is essential to the particular aof woman’s to decide whether to continue a protection right pregnancy. by To hold otherwise is to subvert the deterrence function of tort law recovery may statistically “for the effects of conduct that cause preventing Inc., injury. irrefutable” Saint Francis 741 P.2d (McKellips Hosp., supra, at To hold “a p. 474.) segment society otherwise is to often least place able mercy to exercise at the of those independent judgment” professionals Counselman, rely whom it must for vital care. upon prenatal (Roberson words, at supra, 160.) significant other there is at stake here a p. interest entitled to legal protection negligence. (Smith Superior Court, 496.) Cal.App.3d majority distinguish instant situation from that attempts injured
which a diseased or loses a chance of survival or increased patient W'hile it cannot be longevity. said the defective condition was genetically caused negligence, medical it is true that he or practitioner’s equally *14 she has not caused the or injury. initial disease This mistakes the approach nature of the interest to be real injury injury suffered. The protected infant, here is not the birth of a genetically damaged but compelled words, to that ignorance leading birth. other the circumstances pre- here, cases, sent as well as those the “survival” the medical present forces the risk. negligence patient unknowingly assume additional I would the rationale of such cases as v. U.S. Accordingly, adopt Waffen Services, Weimer, Health & Human Hetrick v. Dept. 799 F.2d supra, of Louvar, 131, 393 N.W.2d supra, and DeBurkarte 508 A.2d supra, lost oppor Brenda Simmons’s here is injury plaintiff the compensable hold her essential to have been might information which tunity that acquiring real, very is a her This continue pregnancy. decision whether to informed Inc., irrefutable,” Hosp., v. Saint Francis “statistically injury (McKellips is “[Tjhat person worthy compensation. 741 P.2d at supra, twenty percent probability fifteen or percent, confronted with a ten percent, should be injuries suffer future that will sense) the mathematical (in [she] injuries at least for those future to recover sufficient permit [her] . . . Once it injuries occurring. such probability proportion loss, evi there is a certainty] a medical that determined [to loss expected the maximum concerning then be admitted dence should chance game playing lose in the should the victim completely [she] conc, Bero, 640-641, (Jordan 210 S.E.2d at pp. with the fates.” and decide whether Neely, J.) right weigh If the opn. parental infant can be to a genetically impaired tremendous burden of birth giving circumstance, as whether, better for the child in a it is borne or particular substance, any real is to have well that a be terminated pregnancy value, grave must be viewed as the loss of such an opportunity recovery. as a lost for survival to have had originally
Since the evidence shows Brenda Simmons plaintiff a fetus learning carrying a 20 chance of she was approximately failure to Syndrome afflicted and further shows defendants’ with Down’s destroyed that make available to her Alpha Fetoprotein testing completely sufficient evi- it is clear to me that have submitted opportunity, dence a triable issue of material fact on the issue of causation. to raise summary I that the trial court erred in Accordingly, granting would hold judgment. denied Novem- for review the Court was
Appellants’ petition Supreme Mosk, J., Broussard, J., opinion ber 1989. were be granted. should petition