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Chapter 79: Wrongful Pregnancy

§79.1 Generally

The Case: Smith v. Gore , 728 S.W.2d 738 (Tenn. 1987).

The Basic Facts: As the result of a failed tubal ligation for permanent sterilization, Plaintiff became pregnant with her fifth child. She gave birth to a healthy, normal baby boy. She filed suit against the doctors, the hospital, the manufacturer of the sterilization technique alleging that "the sterilization procedure failed as a result of the negligence of the doctors and hospital; her claim against the manufacturer was predicated on a failure to warn and breach of warranties. Recovery was sought for damages of emotional distress, loss of income, medical expenses, and the expenses of rearing the child to majority." 728 S.W.2d at 740. The Defendants sought dismissal "for failure to state a claim for the recovery of the rearing expenses of a normal, healthy child." Id. The trial court denied Defendants' Motion to Dismiss but granted permission to seek interlocutory appeal. The Court of Appeals granted permission to appeal and found that the expenses of raising a healthy and normal child were not recoverable. Plaintiff then appealed to the Tennessee Supreme Court.

The Bottom Line:

  • "Numerous cases have been reported concerning the type of action involved in the case. These cases have been variously denominated 'wrongful birth,' 'wrongful pregnancy or conception,' and 'wrongful life,' but some consensus seems to be emerging that several distinct causes of action are represented by these terms, see generally Stein, Damages and Recovery (Lawyers Co-Operative 1972), § 221.2, at 256 (Supp.1986):
    1. Wrongful pregnancy or conception is an action brought by the parents on their own behalf to recover damages resulting from a failed pregnancy avoidance technique (e.g., vasectomy, tubal ligation, abortion, misfilled birth control prescription, etc.); usually the resulting child is healthy. See, e.g., Miller v. Johnson, [343 S.E.2d 301 (Va. 1986)]; Garrison v. Foy, [486 N.E.2d 5 (Ind. Ct. App. 1985)];Nanke v. Napier, 346 N.W.2d 520 (Iowa 1984); Weintraub v. Brown, 98 A.D.2d 339, 470 N.Y.S.2d 634 (1983); Sherlock v. Stillwater Clinic, [260 N.W.2d 169 (Minn. 1977)].

    2. Wrongful birth is an action by the parents on their own behalf to recover damages for the birth of an impaired child when the impairment results either from an act or omission of the defendant or because the defendant failed to diagnose or discover a genetic defect (e.g., genetic counseling, failure to perform readily available diagnostic tests, etc.) in the parents or the infant in time to obtain a eugenic abortion or to prevent pregnancy altogether. See, e.g., James G. v. Caserta, 332 S.E.2d 872 (W.Va.1985) (Involving two causes of actions);Harbeson v. Parke-Davis, Inc., [656 P.2d 483 (Wash. 1983)] (En banc ); Naccash v. Burger, [290 S.E.2d 825 (Va. 1982)];Stribling v. deQuevedo, [432 A.2d 239 (Pa. 1980)]; Howard v. Lecher, 42 N.Y.2d 109, 397 N.Y.S.2d 363, 366 N.E.2d 64 (1977); Gleitman v. Cosgrove, [227 A.2d 689 (N.J. 1967)].

    3. Wrongful life is that action brought on behalf of an impaired child to recover damages for having been born with defects due to an act or omission of defendant. See, e.g., Turpin v. Sortini, [643 P.2d 954 (Cal 1982)] (En banc ); Curlender v. Bio-Science Laboratories, 106 Cal.App.3d 811, 165 Cal.Rptr. 477 (1980); Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978); Elliott v. Brown, [361 So.2d 546 (Ala. 1978)]."
    Id. at 741.
  • "This case is best considered as a wrongful pregnancy action, and as such the opinion is limited to those situations in which the parents are suing to recover damages to their interests; this case does not involve an impaired child and thus we do not address the scope of damages available for the birth of an impaired infant." Id. at 741-42.
  • "This case involves an ordinary tort action. The Defendants' duty to Plaintiff in performing a tubal ligation is indistinguishable from any other duty owed to a patient during medical treatment. That Plaintiff has suffered a foreseeable consequence she most certainly sought to avoid is clear. Moreover, we are generally unpersuaded by the approaches taken in most of the limited damages cases from other States. The public policies on which these decisions rest tend to conflict and do not seem to have a foundation in any express public policy. Rather than ground our decision on abstract notions of public policy, we rest our holding limiting Defendants' liability in this case on two grounds: (1) that the State of Tennessee imposes by statute the responsibility for the support of children upon the parents, thereby relieving Defendants of the liability for the support of Plaintiff's healthy child, and (2) considering not only the extensive statutory law regarding the obligation to support, but in light of both the common law obligation to support and this Court's restricted role in declaring public policy, shifting the common law and statutory obligation from the parents to defendant in such cases as these must be left to legislative action." Id. at 745.
  • "The law in Tennessee restricts this Court's role in declaring public policy. The Court is not free to establish what its members believe to be the best policy for the State; rather, we must determine where public policy is to be found, what the specific public policy is, and how it is applicable to the case at hand. Ordinarily, the Court is not the institution that is called upon to divine the nature of public policy in its most general terms; this Court usually decides whether or not any controlling public policy has been established or declared and then determines how it applies to a particular case." Id. at 746.
  • "The competing public policies involved in this case include constitutional values concerning the rights of persons to control the size of their families. Such rights can only be considered legal interests which State tort law will protect from invasion. If, however, full recovery were allowed in this kind of case, the potentially adverse effect on health care providers of pregnancy avoidance techniques could inhibit the availability of these avoidance techniques to other persons who have decided to exercise their constitutional rights to control the size of their families. Nevertheless, some deterrent is required to assure that due care will be exercised by providers of avoidance techniques, which deterrence is one of the operative policies of tort law. Compensation for an injury to a legally protected interest is another tort policy involved. Moreover, the State not only has an interest in providing adequate tort remedies, but the State also places great value on life and has an interest in promoting stable, self-supporting families. Other State policies impose the obligations and responsibilities of family life on the parents of minor children, but the State has also provided a network of social programs designed to assist people in fulfilling these responsibilities. That some remedy should be provided to Plaintiff in this case is clear, but the extent of that remedy is problematic." Id. at 748.
  • "In the instant case, Plaintiff's Complaint sufficiently alleges a recognized tort. The only question is the extent of damages that may be recovered for the injury. To hold that no injury is recognized would be contrary to established tort law. Nevertheless,
    '[t]he law of damages aims at compensation for the actual loss sustained, but within these limits: In tort liability arises in invitum, by force of law; and the extent of liability is fixed by law independently of the wrongdoer's consent. The law holds him liable not for all the harm that follows his wrong, not for all its consequences, but only for its proximate consequences.'
    Black v. Love & Amos Coal Co ., 206 S.W.2d 432, 434 (Tenn. Ct. App. 1947)]." Id. at 748-49.
  • "At common law, the obligation to support minor children lies with the parents. See Clark, Law of Domestic Relations (West 1968), §§ 6.2-6.3, at 187-192. This obligation is also imposed by statute in Tennessee. See T.C.A. § 34-1-101. Not long after a predecessor of this present code section had been enacted, this Court decided Brooks v. Brooks, [61 S.W.2d 654 (Tenn. 1933)], and stated:
    'The obligation previously resting upon the father [at common law] to maintain and support his minor children cannot be said to have been destroyed by this statute. That obligation was to provide for the child 'in a manner commensurate with his means and station in life.' ... The obligation cast upon the mother by the statute must be measured by the same varying and relative standard.'
    166 Tenn. at 257, 61 S.W.2d at 654 (citation omitted)." Id. at 750.
  • "The social problem of the support of minor children following divorce or of the support of minor children born out of wedlock has been the subject of numerous statutory enactments in this State. T.C.A. § 36-2-102 establishes the liability of the father to provide support for a child born out of wedlock. Brown v. Thomas, [426 S.W.2d 496 (Tenn. 1968)]. A petition may be filed to establish paternity and to compel the father to support the child. T.C.A. §§ 36-2-103 (Supp.1986); 36-2-108 (Supp.1986). A petition for legitimation may be filed and an order of support may be entered as part of the decree in such cases. T.C.A. §§ 36-2-202, 36-2-203 (Supp.1986). Legitimation may be accomplished by the subsequent marriage of the parents. T.C.A. § 36-2-207." Id.
  • "Upon the dissolution of marriage, the court may enter a decree controlling the support of the minor children. T.C.A. §§ 36-5-101 et seq. Failure to comply with a support order is punishable as contempt. T.C.A. § 36-5-104. In addition, this State has adopted the Uniform Reciprocal Enforcement of Support Act, T.C.A. §§ 36-5-201, et seq. T.C.A. § 36-5-212 provides that any person with legal custody of a child may bring a petition to obtain support for that child and, under T.C.A. § 36-5-306, the Department of Human Services may enforce the duty of support. Other statutory provisions impose and vindicate the obligation to support as well. See, e.g., T.C.A. §§ 36-5-405; 36-5-501; 36-6-101, et seq." Id.
  • "When a person has custody of a minor dependent child and has no sufficient source of support for that child, the State undertakes the support of such children through Aid to Families with Dependent Children. T.C.A. §§ 14-8-101, et seq. A civil action may be brought by Human Services to recover the assistance paid by the State from the person failing to support a child. T.C.A. § 14-8-123. A person accepting Aid to Families with Dependent Children assigns support rights to the State for enforcement. T.C.A. § 14-8-124. See also T.C.A. § 36-5-108. The Department of Human Services maintains a registry of putative fathers. T.C.A. § 36-2-209 (Supp.1986). Moreover, while garnishment of an employee's wages is generally prohibited under T.C.A. § 50-2-105 (Supp.1986), an express exception is provided for enforcement of child support obligations." Id.
  • "Although Plaintiff has alleged an ordinary common law tort and, if successful, may recover damages for the foreseeable consequences of the tortious injury, as Section 431 of the [RESTATEMENT (SECOND) OF TORTS] provides, the manner in which the harm (i.e., the birth of a normal child who must be supported until at least the age of majority) resulted limits Defendants' liability for the support of this child because legislative enactment of such comprehensive statutory schemes controlling child custody and support demonstrates that the public policy of Tennessee is that the obligation for support of minor children is affirmatively placed on the parents of the children. The fact that a normal child is the result of a failed pregnancy avoidance technique will not shift this responsibility from the parents to the defendant in such a case. Application of general common law principles of tort recovery is not appropriate in this case because both the common law itself and statutory law have specifically established responsibility for the support of children. If this responsibility is to be shifted away from the parents, such a determination is for the Legislature and not the Judiciary. Significant and far-reaching questions of social policy are involved, 'and it is the prerogative of the General Assembly to declare the policy of the State touching the general welfare.' [Baptist Memorial Hospital v. Couillens, supra, 176 Tenn. at 311-312, 140 S.W.2d at 1093.]" Id. at 750-51.
  • "We conclude that in a wrongful pregnancy action the law relieves these Defendants of liability for the otherwise foreseeable consequences of the failed pregnancy avoidance technique to the extent that the obligation to support minor children clearly rests upon the parents. The responsibility for support of Plaintiff's fifth child rests with Plaintiff and the father of this child. The laws of the State will assist Plaintiff in assuming this responsibility. In view of the nature of the injury to Plaintiff and the numerous, complex and competing social policies involved, the firmly established common law and statutory obligation of parents to support their children is not shifted as a result of the tort of wrongful pregnancy. Defendants' negligence cannot be considered the legal or proximate cause of the damages incurred by Plaintiff for the support of her normal, healthy child in the circumstances of this case. The extent of recovery is thus limited to those damages immediately flowing from the failed pregnancy avoidance technique." Id. at 751.
  • "The exact extent of recoverable damages must be delineated. The cases involving limited damages have generally permitted recovery of all medical expenses, both for the failed avoidance procedure and for the pregnancy and delivery. These expenses would also include a period of postnatal recovery for the mother. Any damages directly related to the pregnancy and delivery would be recoverable, such as the costs of prenatal care during pregnancy, the expenses of any medical complications arising from the avoidance technique itself or caused by the pregnancy and delivery, as well as pain and suffering from the time Plaintiff discovered she was pregnant until she has recovered from childbirth. In addition, lost wages during pregnancy, delivery, and some period of postnatal recovery of the mother are recoverable. In the appropriate case, loss of consortium would be an element of damages as well." Id.
  • "Plaintiff has sought damages for emotional distress in this case. Tennessee has recognized the tort of negligent infliction of emotional distress. Laxton v. Orkin Exterminating Co., Inc., 639 S.W.2d 431, 434 (Tenn.1982). Recovery of damages for emotional distress or mental anguish is generally limited to a definite period. 639 S.W.2d at 434. This period extends from the discovery of the pregnancy until its termination. In assessing these damages, the jury may consider the reason for which Plaintiff underwent the pregnancy avoidance technique. Other considerations may include the age of the parent or parents, marital status, the number of other children for whom the parent or parents are already responsible, and the economic condition of the parent or parents. The degree of distress could be amplified by a combination of these factors." Id.
  • "In regard to the extent of damages, a number of courts have discussed the reasonableness of the alternatives to rearing, i.e., abortion or adoption, as part of the duty to mitigate damages. Generally, courts seem to have rejected consideration of these alternatives as part of the duty to mitigate. We think that not only would imposing these choices upon a plaintiff impermissibly infringe upon Constitutional rights to privacy in these matters, but the nature of these alternatives are so extreme as to be unreasonable, especially when the recoverable damages do not include the expenses of rearing the child. We observe, however, that where a plaintiff exercises her Constitutional right to terminate the pregnancy, recovery of the cost of the abortion, in lieu of that of the delivery, is a proper element of damages. Moreover, in considering damages for emotional distress, some cases may justify consideration of the plaintiff's struggle to decide whether to rear, place for adoption, or terminate the pregnancy." Id. at 751-52.
  • "In a wrongful pregnancy suit, the interests protected are those of the parents. Legal causation does not extend to the consequence of the necessity of support. The extent of recoverable damages is limited by this State's law and policy, which impose the obligation to support minor children on the parents. This does not, however, and cannot relieve the defendant in these cases of all liability for the injuries caused by his negligence; it only establishes a boundary on the extent of recoverable damages." Id. at 752.

Other Sources of Note: Owens v. Foote , 773 S.W.2d 911 (Tenn. 1989) (wrongful birth claim is nothing more than suit for ordinary negligence; if liability is established, the extent of damages should be measured in accordance with the law of damages stated in Smith v. Gore).

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

To order a copy of the book, visit www.dayontortsbook.com. John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit www.dayontorts.com.

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