University of Arizona Health Sciences Center v. Superior Court
667 P.2d 1294
Ariz.
1983
Check Treatment

*1 as he selects goals mined to achieve 7. He is personal say not a man of violence I cannot being significance.

but does react what occa- aggressively situations and judgment his all attacks, he considers as verbally both that his emo- objective would be or sions recourse to various institution- would not at tional reactions and biases actions, However, including legal al actions. I objectivity. his times color I have out- do not see the characteristics approach 8. His many problems a being as previous lined in the section technical, “scientific,” highly legal- that would allow me to recom- degree istic, gives appearance right mend that he be excluded from times of compart- concreteness and which he has practice profession a mentalization in his thinking. This trained. adequately been hostile, appear also as others a suspicious very circumscribed and

guarded response questions to their general communications. This

would tend to produce many people negative interpersonal reaction.

This is probably also another factor in

making it difficult for him to pass off a casual remark or question with an 667 P.2d equally casual or humorous response. ARIZONA HEALTH OF UNIVERSITY This in turn potential would lead to University CENTER, a/k/a SCIENCES verbal confrontations anticipated al., Petitioners, Hospital, et by the person other or persons. 9. Many the above characteristics expected would be to lead to animosi- OF the STATE COURT SUPERIOR

ty and counter hostility, well as Arizona, OF In and For the COUNTY feelings of jealousy and Grounds, other resent- MARICOPA, and David L. ments in many associates and col- thereof; Judge Heimann and Patrick leagues. His natural aggressiveness wife, Heimann, husband and Jeanne and interpersonal discomfort in many Respondents. social situations would in turn lead to No. 16336-SA. thus, his overreacting and a vicious Arizona, Court Supreme cycle of negative interpersonal rela- En Banc. tionships would up. be set 20, 1983. July RECOMMENDATIONS: I predict would this man would often

provoke many negative responses in some him,

of those in contact with both col-

leagues and might clients and that he legal

well resort to actions on many occa-

sions when others avoid them. He cer-

tainly might be a source of time consum-

ing arguments litigations on occa-

sions. hand,

On the other he has assets many predict adequate

that would make me

functioning in many professional roles. informed, intellectually bright,

He is well

honest to the extent that he will commit deter- highly

himself and motivated and *2 Sanders,

Jones, Haga & Parks Teilborg, Jr., Parks, Myles, A. Donald L. by Frank Phoenix, University of Ari- petitioners for zona Health Sciences Center. Barber, Jr., Tucson, respon- Bob O. Heimann. dents Haralson, Morey by Kinerk & Carter Tucson, for Hoggatt, and Wallace R. Morey Mendoza. Frank and Victoria amici curiae FELDMAN, Justice.

Petitioner, provider a health care teaching hospital, brings this operates action, respondent claiming that the special ruling petitioner’s legal in a judge erred in the un- summary judgment motion for educating derlying raising tort action. seeks this for the future cost Petitioner the re- normal, healthy court’s of an their child born by way intervention order The trial requiring petitioner’s negligence.” sult of respondent judge apply summa- motion for judge partial correct rule of the motion denied the grant law and to brought Petitioner then partial summary ry judgment. We have judgment. action, ruling jurisdiction special claiming to entertain virtue the action *3 Const, 6, and should be improper of Ariz. the was 5(1), Ariz.R.Sp. judge art. and trial 4, Act. 17A A.R.S. vacated this court. by The real parties interest are Patrick us accept have to parties urged All Heimann, Heimann and Jeanne husband narrow, legal jurisdiction decide the (Heimanns). and wife The origi- Heimanns posture question present in the of presented nally brought malpractice a medical action of first question the case. The is a matter against petitioner, a provider. health care state, appropriately impression in this is The Heimanns claimed that one hos- framed, legal entirely principles turns pital’s doctor, a employees, negligently had fact, of rather than issues and controverted performed a vasectomy operation upon Pat- important public is a interest. matter of Heimann, rick that as a result Jeanne argument While a substantial to be there is Heimann pregnant became on October and by adequacy ap made over the of review 4, 1981 gave birth to a baby girl. The (see Ariz.R.Sp.Act. 1), factors men peal the Heimanns alleged underlying the tort resulting cost and tioned above action that the vasectomy had been obtain- appellate if delay parties pro to all normal ed “already children, because having three cedures were utilized and the then had [they] decided that they ... desired to have to be of exercising retried militate in favor no more children. As a result of this deci- our accept jurisdiction. discretion to See they sion further decided a vasectomy Maricopa that State v. Court Coun Superior of was 324, 777, the best means contraception ty, of P.2d for 123 Ariz. 599 them.” The baby girl (1979). is normal and felt that it therefore healthy, but the Heimanns argue they jurisdiction would be appropriate accept financially unable provide for them- in order issue and to legal to decide selves, their other three grant children determine whether in failing newest child whose birth judgment was neither motion for partial summary planned nor desired. Accordingly, respondent failed a judge perform duty “to seek damages from the required doctor and his em- he has no by law to which ployer. discretion” or acted “in excess ... [his] legal 3(a) authority....” Ariz.R.Sp.Act. question of negligence is not before (b); see Nataros v. Court of Superior us. The brings issue which parties these 498, 499, Maricopa County, 113 557 Ariz. pertains, rather, our court to the nature and 1055, (1976). P.2d 1056 extent of the damages which can be recov ered, assuming that negligence Therefore, is subse shall proceed we to consider quently proved. The hospital filed a the legal questions motion pertaining nature partial summary (Ariz.R. for judgment damages may extent of which be recov- 56(b), A.R.S.), Civ.P. contending 16 ered in pregnan- an action for “wrongful 1 while damages cy.” were recoverable for question parents The first is whether “wrongful pregnancy,” “as a matter of law of a child who was desired neither nor could not damages planned was, recover who fortunately, but nor- [the Heimanns] Although brought F.Supp. (D.S.C.1980). action 1. this is under com- n. 1 545 This action negligence principles, distinguished mon law “wrongful term is from a birth” claim “wrongful pregnancy” generally brought by parents is used to de- of a child bom with brought by parents defects, scribe an “wrongful action of a birth or a life” claim healthy, unplanned, against physi- brought by but a suffering child from such birth negligently performed Turpin Sortini, cian who a sterilization defects. 31 See Cal.3d Phillips States, Cal.Rptr. (1982). abortion. See v. United 508 643 P.2d 182 have number of cases at all A substantial damaged

mal and have been healthy, recov a third rule allows adopted the birth that child. An overview by from which flow ery damages of all clearly indicates rather authorities requires consideration wrongful act but will recognize types the law at least some Restatement of benefits. See the offset pro- damage which result from unwanted this (1977).2 Under (Second) of Torts § creation of anoth- negligence caused view, permitted to deter the trier of fact annot., Wrong- er. Tort Liability See ex future past and award all mine Born, to Be A.L.R.3d fully Causing One parent, incurred penses (1978); States, Phillips United child, but including the cost of (D.S.C.1980). The real F.Supp. make should is also instructed controversy around centers the nature that the deduction for the benefits On recovered. normal, having receive virtue issue three views. there are distinct Gratton, 55 Cal. healthy child. Stills *4 authority damages first The line of limits 708-09, 652, 698, 127 658- Cal.Rptr. App.3d by holding parents the recover may that 253, Borelli, (1976); v. 187 Conn. 59 Ochs only damages those as the re occur 259-60, 883, (1982); Troppi v. 445 886 A.2d birth, pregnancy may sult of and and 240, 255, Scarf, 187 N.W.2d Mich.App. 31 Boone rearing recover the cost of the child. 511, (1971); v. Clin 519 Sherlock Stillwater Mullendore, 718, (Ala.1982); v. 416 So.2d 721 (Minn.1977). ic, 169, 175-76 260 N.W.2d 243-44, Kerr, 239, v. 275 Ark. 628 Wilbur court that the trial hospital claims 568, (1982); v. S.W.2d 571 Coleman Garri view, adopt to the first was bound law son, 757, (Del.Super.Ct. 327 761-62 A.2d the rearing educating the cost of and that 8, 1974), (Del.1975); aff’d A.2d 13-14 349 of dam- compensable are not elements 193, v. Baumgartner, Cockrum 95 Ill.2d claim, the other The Heimanns on age. 168, 173-74, 69 447 N.E.2d Ill.Dec. hand, rule second proper that is the the 385, (1983) Ill.App.3d 99 (reversing view, of all recovery the permits 271, 751, (1981)); 54 425 Ill.Dec. N.E.2d 968 permit jury the damage and does not Huber, 861, (Ky. v. 648 862 Schork S.W.2d disagree consider and offset benefits. We Tomlinson, 724, 1983); Sala v. 73 A.D.2d positions. both with 506, (1979); 422 509 Mason N.Y.S.2d strict rule We first the consider 499 Pa. Pennsylvania Hospital, Western are the reasons urged by hospital. Various 484, 453 974, 975-76 (1982). A.2d the view adopt courts which given by the as A second view could be characterized rearing educating that and par the “full rule and allows the damage” base recovered. cases child cannot be Some expenses, ents recover all speculative nature their decision on including of the steri the cost unsuccessful as the necessity assess “such matters procedure, lization the economic loss from siblings birth as affect of a emotional economic, pregnancy, physical well parents, as and the emotional as well and rear emotional cost attendant birth unplanned pecuniary raising costs of Bauer, 251 Cal. child. Custodio and, varying perhaps, an unwanted child in 303, 325, 477 App.2d Cal.Rptr. v. Garri environments.” Coleman family Ill. however, (1967); think, Cockrum son, We 327 A.2d at 761. 271, 273-74, 751, 753, 425 54 Ill.Dec. App.3d required juries that in tort cases often 968, 970 factors, rev’d Ill.2d both (1981), just intangible N.E.2d to assess such no reason (1983). These and see pecuniary, Ill.Dec. 447 N.E.2d 385 emotional and adopted a new should be appear minority. why be a rule cases distinct plaintiff was (Second) of the states: benefit to interest of Torts 2. Restatement harmed, is the benefit conferred value of has When defendant’s tortious conduct damages, mitigation to the proper- considered plaintiff caused or to his harm equitable. ty doing special extent that this has in so conferred in the ever, simple soundness lies wrongful its pregnancy cases. Another reason basic cannot be given parent for the view that a said argument proposition strict is the the birth damaged by the benefits which to have been normal, having normal, healthy receive from child .... healthy child rearing of a outweigh any parents might universally-shared loss which the emo- is a matter [I]t educating incur in intangible child. tion and sentiment Garcia, (Tex. Terrell v. 496 S.W.2d incalculable but invalu- but all important, Civ.App.1973). No doubt this is true in far out- parenthood able ‘benefits’ cases, many we but think it unrealistic to burdens monetary the mere weigh any of assume that it is true in all We cases. can may be Speaking legally, involved. envision many situations in which for either presumed by the fact conclusively deemed reasons, both, financial or emotional not abort parent that a does prospective parents are unable simply to handle another “unwanted” place subsequently child and it where would be obvious that practical adoption. child for On a more from either an economic or per emotional level, validity principle spective damage both —substantial has by asking any parent tested simply —or occurred. purchase young- for that price particular experience, ster. this is the Since rule A third basis for the strict rule is the be, and we hold that it should therefore argument that the “injury propor is out of is, appropriate rule of law.” tion to the culpability of [wrongdoer]; and that the allowance of recovery would grounds that on the de- consider *5 place too unreasonable a upon burden the scribed, holding majority juris- the of a of [wrongdoer], since it likely open would rearing ” dictions that costs of normal way for fraudulent claims .... Beards healthy and cannot be recovered as ley Wierdsma, 650 P.2d 292 (Wyo. parents preferred. is to be 1982). This, course, of is the hue and cry in can, course, logic One of in mechanical many tort and cases in essence is no more conclusion, only but on reach a different than the fear that some cases will be decid and the state ground that human life badly. ed Undoubtedly, the system will not parenthood of are losses. In compensable decide each correctly field, just in this values, proper hierarchy benefit as it does any field, here, not in but as in outweighed not by life should other law, areas of tort we think it better to Respect for expense supporting it. life adopt a rule which will enable courts from it are rights proceeding strive justice in all cases rather than to and, legal system heart of our broader rely upon one which injustice will ensure in still, our civilization. many. Brannigan v. Raybuck, 136 Ariz. 198-201, Id. at 95 Ill.2d at 69 Ill.Dec. 171- 513, 519, 667 P.2d (1983). at 388-89 Public (quoting N.E.2d Brown, Health Trust So.2d The final basis for the strict rule is the (Fla.App.1980)). one which gives this court greater pause response These evoke a sentiments from than any of the others. put It is well by join most cases could court. In we in the Illinois Supreme Court in Cockrum v. “universally shared emotion and senti- Baumgartner, supra. The court used the by majority ment” expressed following words to justify the denial of court, Illinois we do but not believe we hold recovery office our impose morality by views of educating unplanned child: deciding personal the basis of cases emo- sentiment, purpose restating “There is tion though no here we realize we the panoply escape of reasons have been cannot the effect and should assigned by follow the human all the courts which characteristics shared man- * * * However, view, rule. how- kind. we believe our In our function is to leave the merits,” such, emotion and sentiment to oth- if are they may be called attempt ers and problem examine the proper in considerations for fact finder with logic application of the rele- cases, tort mitigate whether be used to vant principles case, of law. In this we damages. enhance No doubt ascertain- believe that the strict rule upon is based an assigning a monetary value to such emotional premise and ignores logical con- intangibles task, will be a difficult but we siderations. While we recognize that do not believe it more difficult than the most cases a family adjust can and will task of ascertaining the pecuniary and non- child, the birth of the even though they had pecuniary damages that it, not desired to have we must recognize experience after the birth of the child. also that there are cases where the birth of Therefore, agree we with the Illinois Su- an unplanned child can cause serious emo- preme (Cockrum Court su- tional or economic problems to the parents.3 )pra that the damage” “full approach is We reject therefore the hospital’s claim exercise in mechanical logic reject and we the cost of rearing educating it. child can compensable never be elements of view, In damage. our the preferable rule is which, followed the courts although We consider next the “full damage” rule permitting the trier of fact to consider both urged by the adopted by Heimanns and pecuniary and non-pecuniary elements of Illinois Appeals Court of in Cockrum v. damage pertain to the rearing and Baumgartner and the California court child, education of the require also it to Custodio v. Bauer. The applying courts consider question offsetting the pecu this rule have prin- relied on traditional tort niary and non-pecuniary benefits which the ciples and determined that the cost of rear- parents will receive from the parental rela ing the child is a foreseeable consequence of tionship with the child.4 Some fear the physician’s negligence and therefore that adoption of such a rule will permit compensable. Cockrum v. Baumgartner, 99 juries to recognize damage elements of Ill.App.3d 54 Ill.Dec. at which, because of private our philosophy N.E.2d at 969. agree We these dam- ethics, we, views of ages judges, believe compensable; however, we believe recognized. feel, should not be a rule however which does not allow for an *6 offset that the for the consensus of a parent-child benefits of the cross-section of the relationship prevents community the on such important trier of fact from issues is bet considering the basic ter values inherent in the and more accurately obtained from the relationship and the dignity sanctity verdict of a jury than from the decision of human life. We believe that these “senti- any particular group of that community. A examples 3. The which Restatement, be cited are as are to the same interest. See experience provide. various as human supra, can comments a and § b. These courts Suppose, instance, for a husband learns that he argue that the emotional benefits of child rear suffering prognosis from cancer and that his way in no offset the economic costs. Cock already is uncertain. He and his wife have four Ill.App.3d rum v. at children and decide in view of his medical Ill.Dec. at 425 N.E.2d at 970. We are not situation it is unwise to run the risk that the persuaded by argument agree this since we pregnant again. arranges wife become He special with the concurrence of Justice Faulk vasectomy, negligently performed. which is Mullendore, supra, ner in Boone v. that “the Suppose further that the child which results is economic burden and emotional distress of shortly bom before or after the husband’s unexpected inextricably an child are say death from cancer. Can one as a matter of ” related to each other .... Id. at 726. We having law that the benefits of a normal child also note that the benefit rule is based on the outweigh obliga- the financial and emotional concept unjust agree enrichment and with struggling tions which the mother must under- interpretation Justice Faulkner that strict take? We think not. the same interest limitation would result in application 4. The unjust the benefit rule has been wrongful pregnancy enrichment in argue criticized some courts cases. Id. applies only injury when the and benefit courts, think the the jury knowledge parents, verdict based on of all rele- the the risk.” weigh vant ones who must Hartke circumstances is a better reflection of 8; accord McKelway, real at 1552 n. Sherlock damage whether exists each case Clinic, N.W.2d 176-77. can Stillwater any than use of ab- obtained from stract, iron-clad rule which some courts therefore, with agree, special the adopt apply regardless would of the concurrence of Chief Justice Rose of the circumstances of case. particular the Wyoming Supreme Court:

There who may be those fear that [TJhrough application the “benefit rule will adopt permit recognition the which we the rule” the give courts to the award of no injury philosophy where real the costs and benefits exists. We is minimized associated with the introduction of danger feel giving unplanned child the weight family vary and consideration each to depending to plaintiffs’ upon case for submit the circumstances of the reasons parents. to As was stated in ting Troppi sterilization evi procedures. Such Scarf, supra, at 187 N.W.2d 519: perhaps dence is relevant informa most on the question tion of whether the subse course, “The essential point, is that quent birth of a actually child constitutes power the trier must have the to evalu- damage parents. to the Hartke v. McKel according ate the benefit to all the way, (D.C.Cir.1983). par 707 F.2d 1544 presented. circumstances of size, income, preconception Family family ents’ calculation of the rea age of the for preventing procreation parents, some, sons is untainted and marital status are bitterness, all, greed but not duty or sense the factors the trier telling determining child and is most evi must consider in perhaps the ex- dence of tent to which birth of particular whether or to what extent represents of the child a benefit to actually injured par par- birth child his Id. ents. That so parent ents. For where the benefits conferred example, sought vary widely and calculated will from sterilization in order avoid the case to defect, case is inevitable.” danger of genetic could jury easily find that considerations, uneventful birth of a By recognizing these healthy, blessing encourages non-defective child was a “benefit rule” and entrusts rather than a “damage.” Such evidence trier of fact with the responsibility of admissible, should be the rule all weighing considering which we of the fac- adopt will allow tors associated the birth of jury learn all the with the un- planned given “wrongful preg- factors relevant child in a' the determination of me, it is the nancy” whether there case. For soundest any damage has been real and, so, approach with the dealing right if how much. We are confident prove their caused by good inherent sense of the jury is without, of a unplanned birth best safeguard “runaway” verdicts *7 time, the same the law uprooting of tort speculation and unfounded in the award of damages. damages, provided jury is that the allowed consider

to the issues in realistic terms. Wierdsma, Beardsley v. 650 P.2d at 296-97. may argued It be also that the rule which decision, In reaching our we are in adopt unhappy we will have the effect of we greatly by perceive fluenced what to be creating parents situations in which damages the uniform rules of for all tort testify to their feeling opinion or that principles cases. One of the basic of dam is “not having worth” burden of age law concept is the that a wrongdoer rearing. testimony and Such could be may be all damages held liable for which he if harmful or when the child learns of it. may all have caused and costs which the are not “We convinced that the effect on may victim sustain a result of the wrong. as Clinic, child will significantly be detrimental in Sherlock Stillwater N.W.2d at 174; case, every cases; or even in ... we Cockrum v. 95 Ill.2d at most GORDON, (concurring 447 N.E.2d at 392 Vice Justice Ill.Dec. Chief in (Clark, J., recognized dissenting part): have and dissenting). part right damages before in Arizona that the agree with the I would must speculation, be established without providers responsible care should be health uncertainty but that as to the amount of damages for costs attendant to birth damages preclude recovery those will not perform surgical a they negligently when question Compare and is a jury. for the damages I would allow sterilization. Ranches, Ellsworth, Coury Bros. Inc. v. care, all pre post partum; obstetrical and (1968), Ariz. 446 P.2d 458 with Nelson in; lying appropriate, costs of where loss of Cail, 120 Ariz. P.2d (App. up delivery and a wages by mother 1978). thereafter, her and period pain short and delivery. Also if this suffering caused We see no reason why ordinary were were a case where the child born rules, damage to all tort applicable other retarded, deformed, chronically or seriously cases, applicable should not be to this situat ill, provider I too would hold the health care ion.5 By allowing jury consider responsible support for the cost of lifetime costs, pecuniary non-pecu future both the child. But here we are and care for child, niary, educating dealing with the birth of a normal and permit we all the elements to consider undesired, child whose healthy, although damage parents may present on which the monetary life I consider above value. At By permitting jury evidence. to con I point respectfully must dissent. procedure sider the reason for the and to important of the most functions of One non-pe pecuniary assess and offset the highest appellate guide state’s court is to cuniary benefits which will inure to the shepherd growth common reason their parents by relationship according to the Court’s law of that state child, we allow the to discount jury existing public policy. This perception those damages, reducing speculation thus and awesome. Emo- task is at once delicate permitting upon the verdict to be based should not sentimentality tion and indeed they actually the facts as exist in each of decision of wheth- play part in our Court’s variety the unforeseeable of situations existing principle of law to a apply er to may come before the court. We it otherwise the given set of facts. Were think this far the better rule. The blind decisis would be a fraud. doctrine of stare figure justice fold on the is a shield from Court, when, of this we are But as members partiality, reality. not from existing rule of upon to extend an called we hold that the Accordingly, respondent concept new within entirely to an did not err in his on the judge ruling trial fraught one so jurisprudence, especially our summary judgment. prayer motion for values, opin- subjective with differences in for relief is denied. belief, we should tread personal ion and senses, our most trusted cautiously, led HAYS, justice and the HOLOHAN, C.J., J., goals with both the concur. put holding ordinary damages the child ent from the decision to abort or 5. In rules are up adoption applied, imply it has been conceived. “If once be we do not indicate parents mitigate in such a situation with are confronted should be forced to they by choosing adoption, consider to be unenviable choices which alternatives, abortion or precluded parents’ should not be from failure to do so considered *8 recovering damages requiring mitigation because select of an offset. The rules unpalatable choices.” damages require only of these measures most desirable that reasonable 207, 258, Scarf, 69 Troppi App. 95 Ill.2d at v. 31 Mich. at Cockrum be taken. J., (Clark, 175, 519; Builders, also, at 392 Fairway at 447 N.E.2d Ill.Dec. 187 N.W.2d at see Life, Wrongful Kelly, Co., dissenting); see also Malouf Towers Rental 124 Ariz. Inc. v. Law, 255, 513, Wrongful Tort Wash. 242, (App.1979). Birth and Justice 603 P.2d 526 The (1979). quite 949-50 not to conceive differ- U.L.Q. decision a child is liability physician the outer limits of strengths system and weaknesses of our pregnancy. the fact equally diagnose in mind. failure to well complaint and this This case The rule of established such limits.” beyond majority may logical in this case indeed be Co. of Fort Rieck v. Medical Protective science legally Logic scientific. 514, 520, 219 Ind., N.W.2d Wayne, 64 Wis.2d however, may, lead to results at variance also Coleman (1974). See with public policy. Although very I have a Garrison, (Del.1975) (advising 349 A.2d 8 high degree respect country’s for our case was not founded on the child that system justice, readily civil admit was rejection person, him as a but rather that our common law tort liabil- concepts of for the out- malpractice “sounding action ity have products caused manufactured in 14). physician liability.” limits of Id. the United among States to be the safest in gone guarantee court has so far as to One world, I feel that there are some human parents’ anonymity by captioning misfortunes that do not lend themselves to Hospital, Conn.Sup. Anonymous solution by combat in the courtroom. (1976). 366 A.2d 204 The above au Wrongful pregnancy, my opinion, is one practical thorities indicate the effect of those. I believe the rule allowing dam- litigation may such have on the child in age recovery beyond the costs of birth in years. Although discovery future later cases such as these would violate what I their parents’ feelings toward them consider the public policy of our state in children, only harm a few I think a few are several ways. too many. (1) pointed As is out majority opin- in the (2) likely The decision in this matter will ion, the prosecution of this type action impinge upon availability and costs of requires parents to deny the worth of the in Arizona. It is con- surgery sterilization child, placing thus the values hereafter many ceivable that health care over those of the child. Under the “bene- providers will either refuse to perform rule,” fits judgment for the parents is a these so procedures, they will become conclusion by the court that a child is not expensive only wealthy will be able worth what it takes to raise him or her. to afford them. If the intended result of This problem has been recognized by sever- is to lessen the majority number of al authors who refer to such a child as an pregnancies by requiring unwanted more “emotional bastard” when attempting to skill in the performance and caution of ster- describe the stigma that will attach to the procedures, ilization I believe that this case child when he learns the true circumstances will be There will self-defeating. probably of his upbringing. Mullendore, Boone v. be an increase in the number of unwanted (Ala.1982); Kerr, So.2d 718 Wilbur v. pregnancies due increased cost and 275 Ark, (1982); Note, S.W.2d unavailability surgical relative steriliza- Wrongful Birth: A Child of Tort Comes of tion. Age, (1981). 50 U.Cin.L.Rev. 65 In at- tempting to minimize the wrong- effect of a (3) is well known that Finally, our pregnancy child, ful action on the some already courts are overcrowded with cases. courts have part opinion addressed of their has this decision created a to the child: new expansive concept gen- which will

“Since the child involved might day protracted litigation. some erate new and For read this Stretton, decision as to who is to pay example, in Cox v. 77 Misc.2d his support upbringing, (1974), plaintiff we add that N.Y.S.2d be- we do not complaint understand this pregnant came and bore a child after her implying any present rejection vasectomy or future husband had received a and was upon parent-child strain relationship. procedure told the defendant Rather we see it as sterility. alleg- an endeavor on the would Aside from result in part of clients and negligence counsel to determine action in causes of *9 door, we should contract, logically, going open set complaint breach of also par plaintiff way. If open it all the

forth a cause of action on behalf of to have have endeavored plaintiffs’ infant children. The court sum- ents —who injury as an child, his or her birth pleaded marized the cause of action as follows: damages— them, substantial and claimed children, behalf infant “[On or advantage of abortion chose not to take plaintiffs’ allege] they, prior born permit be should adoption, the defendant children, by reason of the defendant’s doing soby ted to establish contract, negligence and breach of will be dam mitigate their failed unreasonably deprived in the future of a of the portion Note, Damages: Birth ages. Wrongful care, affection, and financial training Fiat, Mishandling by Judicial Mandate and received, support that each would have 127, 164-170 (1978) 13 Val.U.L.Rev. [herein except unexpected for the birth their Damages]; Birth Wrongful after cited as brother.” Note, Re Damages Judicial Limitations Id. at at 839. Al- N.Y.S.2d Wrongful Birth of a coverable for though recognize the court refused to Infant, Healthy 68 Va.L.Rev. action, scope cause of indicates the Limitations on (1982) cited as [hereinafter brought of actions that may potentially be Sternberg, Damages]; cf. Ziemba in the aftermath of the handed decision (1974) (ques A.D.2d 357 N.Y.S.2d down by today. this Court Such actions are ap of abortion was option tion of whether particularly tempting unscrupu- both to the motion to cannot be decided on propriate lous and the unethical further dismiss). add to the court’s burden. Second, Restate- majority misapplies A further non-policy criticism that I have (Second) (1977). ment of Torts Sec- § of the majority opinion is that it is not specifically tion 920 states that for a benefit entirely consistent. If allow the Court is to mitigation damages in to be considered some of logical principles of tort law to special must be “a benefit to the interest area, apply very in this sensitive I feel then * * Fur- plaintiff that was harmed *.” apply. majori- that all of them should The thermore, how explains a comment to however, ty, fails to do so in at two least operates: requirement the “same interest” First, in instances.1 the usual lawsuit if a to same interest. Dam- “Limitation plaintiff her mitigate has failed to his or an invasion of one ages resulting from damages, this fact is allowed as offset showing by interest are not diminished Court, against In this case recovery. has been benefited. that another interest although eschewing emotions senti- repu- has harmed another’s ment, Thus one who unexplained has for reasons decided cannot statements by defamatory tation parents’ that the failure to choose abortion damages mitigation show adoption should not be considered in benefited from financially other has been mitigation. apparently has * * * unless publication their mitigating decided that these methods of inter- pecuniary as a matter of are claimed for harm to unreasonable * * * pain and suffer- question Damages law. The of the reasonableness of ests. however, showing that mitigating damages, a method of are not diminished has plaintiff generally question earning capacity of fact to be decided * * act. the trier of fact. In some cases abortion been increased the defendant’s reasonable, a husband for loss of consor- adoption Damages will not be while by the fact that others it will If we are tium are not diminished be reasonable. point majority’s attempt I to avoid the moral 1. I these inconsistencies out not because that the majority opinion remedy policy problems believe the should with this area associated Indeed, adopted by majority by appealing principles them. the rule to strict of the law purged any but of these inconsistencies would I am convinced tort law is flawed. policy. I even less desirable as a matter of point attempt be flawed. such would attempt them out in an to demonstrate

589 no longer husband is ex- under the 667 P.2d 1304 pense Arizona, the wife.” supporting ex rel. Robert K. COR STATE of Attorney General, BIN, Arizona Restatement, b. A supra, comment § Commission, Petitioners, Corporation proper application the “same interest” requirement wrongful in a pregnancy would require pecuniary rais- harm of PICKRELL, Robert W. The Honorable ing the only by correspond- child be offset Judge Superior of the Court State benefit, pecuniary and emotional bene- Arizona, County in and fits of the be parent-child relationship ap- Maricopa, Brock, and Cara E. aka Cara plied only as an corresponding offset Thompson, single person; Stephen E. a Bauer, emotional harm. Custodio v. Christian, Cline, aka Steven and Ste H. (1967); Cal.App.2d Cal.Rptr. Cline, Clay Clay single and Steve a ve Comment, Robak United A States: person; aka Barbara J. Schaer Barbara Precedent-Setting Damage For Formula Miller, single person; J. Russell B. Wrongful Birth, L.Rev. Chi.[-]Kent Smith, Smith, III and Deborah husband Kashi, (1982); 746-47 The Case of the Un- wife; Arizona Utah Colorado Devel Wrongful Life, wanted Blessing: 31 U.Mi- opment Corporation, corpo an Arizona ami (1977); L.Rev. Wrongful Ltd., ration; Eagle, Double a British 158; Damages, supra, Birth at Limitations corporation; Ore Resources West Indies on Damages, supra, 1326. Ltd., Enterprises, Development an Ore The majority’s reasons for overlooking gon corporation; Del Llouvia Oro Min requirement “same interest” of § ing Company; Del Llouvia Oro # 4 are unpersuasive. The argues Oregon Mining Company, corpora an the economic burden and emotional tion; Mining Company Llouvia Del Oro distress of an unexpected 6; Mining Company Del # Llouvia Oro so closely sepa- related that cannot be corporation; # Utah Paramount rated. This seems inconsistent with Consulting Co.; Guarantee Financial & majority’s expressed confidence in abili- Co.; Services & Financial Guarantee ty jurors to assess intangible emotional Financials, Ltd.; Nquir Tax Internation and pecuniary factors. Systems Corporation, Planning al aka Tips, corporation; a Colorado and Limi argues The majority also that because the tax, parties interest, Respon real “benefits rule” is designed pre- dents. enrichment, vent unjust the “same interest” requirement of the rule should ap- not be No. 16375-SA. plied. argument The same could made Arizona, Supreme Court of in any case and amounts to little more than En Banc. argument deleting the “same inter- est” requirement from the “benefits rule.” July 1983. I am convinced that the proper balance 26,1983. As Amended Oct.

between strict tort law principles sound public policy would be struck by precluding

recovery raising the future costs of

educating the child.

CAMERON, J., concur.