Opinion
No. 23448-7-III
Filed: April 19, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Kittitas County. Docket No: 03-2-00419-0. Judgment or order under review. Date filed: 04/19/2004. Judge signing: Hon. Michael E. Cooper.
Counsel for Appellant(s), David A. Middaugh, Attorney at Law, 1500 4th Ave Ste 500, Seattle, WA 98101-1632.
Counsel for Respondent(s), Joseph P. Jr Lawrence, Lawrence and Versnel PLLC, 601 Union St Ste 3030, Seattle, WA 98101-2317.
Mary H. Spillane, William Kastner Gibbs, Two Union Square, 601 Union St Ste 4100, Seattle, WA 98101-2341.
Patrick Bateman and Regan Johnson (the parents) are married and had three children. They decided not to have more. Mr. Bateman went to Dr. Mark Larson at the Valley Clinic for a vasectomy, which was not successful. Ms. Johnson became pregnant, eventually giving birth to a healthy child. Alleging negligent performance of the vasectomy and seeking damages for child-rearing costs, the parents sued Dr. Larson and the Valley Clinic. The court granted Dr. Larson's motion for judgment on the pleadings because those damages are not recoverable. The parents appeal; we affirm.
Dr. Larson performed a vasectomy in July 2000 on Mr. Bateman, who returned to the clinic two months later for a sperm check. After the check, he was told the vasectomy was successful.
In December 2000, Ms. Johnson, his wife, became pregnant. She gave birth to a healthy child. Mr. Bateman is the child's biological father. The parents sued Dr. Larsen and the Valley Clinic for negligence because of the unsuccessful vasectomy. They sought damages only for child-rearing costs.
Dr. Larson and the clinic moved for judgment on the pleadings based on McKernan v. Aasheim, 102 Wn.2d 411, 687 P.2d 850 (1984), which held such damages are not recoverable. Arguing Initiative 120 superseded case law on the issue, the parents contested the motion. The court disagreed and granted the motion to dismiss. The parents sought direct review with our Supreme Court, which transferred the case here.
A trial court's ruling on a motion to dismiss under CR 12(b)(6) is a question of law reviewed de novo. Paradise, Inc. v. Pierce County, 124 Wn. App. 759, 769-70, 102 P.3d 173 (2004). A claim should be dismissed under CR 12(b)(6) only if it appears beyond a reasonable doubt no facts exist justifying recovery. Id. at 770.
In 1983, Washington first recognized claims for wrongful birth and wrongful life in Harbeson v. Parke-Davis, Inc., 98 Wn.2d 460, 462, 656 P.2d 483 (1983). The court stated:
[W]rongful birth will refer to an action based on an alleged breach of the duty of a health care provider to impart information or perform medical procedures with due care, where the breach is a proximate cause of the birth of a defective child. We do not in this opinion address issues which may arise where the birth of a healthy child is allegedly caused by a breach of duty owed to the parents. Such actions are referred to as wrongful conception or wrongful pregnancy.
Id. at 467. The court further held that `parents have a right to prevent the birth of a defective child and health care providers a duty correlative to that right.' Id. at 472. The injury to the parents, and thus the damages, reflects both pecuniary losses as well as emotional injuries: [R]ecovery may include the medical, hospital, and medication expenses attributable to the child's birth and to its defective condition, and in addition damages for the parents' emotional injury caused by the birth of the defective child. In considering damages for emotional injury, the jury should be entitled to consider the countervailing emotional benefits attributed to the birth of the child.
Id. at 475 (citing Restatement (Second) of Torts sec. 920 (1977)).
The Harbeson court also recognized a claim for wrongful life, the child's equivalent of a wrongful birth action. Harbeson, 98 Wn.2d at 478. The court further indicated that in measuring general damages, the jury would have to weigh the value of life in an impaired condition with nonexistence, and this was a task that could not be done within Washington's requirement that damages be established with reasonable certainty. Id. at 482. But the special damages involving the expenses of medical care and training are calculable and recoverable. Id. In McKernan, 102 Wn.2d 411, the McKernans sued Dr. Aasheim for negligently performing an unsuccessful tubal ligation on Ms. McKernan. Because the sterilization procedure was not successful, she became pregnant and gave birth to a normal healthy child. Id. at 412. The McKernans sought damages for the cost of the tubal ligation, pregnancy, and childbirth; pain and suffering associated with the tubal ligation, pregnancy, and childbirth; loss of consortium due to the tubal ligation, pregnancy, and childbirth; and child-rearing costs. Id. at 413.
The McKernan court joined the majority of jurisdictions in holding that the parents of an unplanned, but healthy, child may not recover child-rearing costs from the physician who performed the unsuccessful sterilization procedure. Id. at 419.
The McKernans argued they were entitled to recover the full cost of raising their child, without any offset for the benefits associated with parenthood. Id. at 419. The court disagreed, noting that children are more than economic liabilities. A child may provide many intangible benefits to parents. Thus, the only logical method of determining damages for the unplanned birth of a healthy child is the `benefits' rule, which requires weighing of the child-rearing costs against the benefits of parenthood. Id. But the court refused to apply the benefits rule. First, damages associated with an unhealthy child, as counterbalanced by the emotional benefits of parenthood, cannot be determined with reasonable certainty as required by Washington law. Id. at 419-20. Although the costs of raising a child can be proved with economic data, whether there was a net gain or net loss could not be determined because it is impossible to tell if the child would become a source of pride or pain. Id. at 420. Second, the court also held that permitting damages associated with raising a healthy child violated the public policy of this state in that the litigation of these cases would undermine the stability of the family unit and pose a substantial threat of emotional harm to the child. Id. at 421. On the other hand, parents of an unplanned, but healthy, child can recover damages for the `expense, pain and suffering, and loss of consortium associated with the failed tubal ligation, pregnancy, and childbirth.' Id. at 421-22. These damages can be determined with the level of certainty required and would not invite any damage to the family or child. Id. at 422.
Here, the trial court dismissed the parents' action pursuant to McKernan. They make no argument that McKernan does not apply. Rather, they assert the case must be overruled in light of Initiative 120.
The parents first argue McKernan should be overruled because Initiative 120, now codified as RCW 9.02.100, establishes a fundamental right not to reproduce and with that right comes an implicit determination that the benefits of a child will not outweigh the costs of having an unplanned child. They claim this determination cannot be altered by the courts and negates McKernan's premise that the fact of damage is unascertainable in wrongful conception cases.
RCW 9.02.100 provides:
The sovereign people hereby declare that every individual possesses a fundamental right of privacy with respect to personal reproductive decisions.
Accordingly, it is the public policy of the state of Washington that:
(1) Every individual has the fundamental right to choose or refuse birth control;
(2) Every woman has the fundamental right to choose or refuse to have an abortion, except as specifically limited by RCW 9.02.100 through 9.02.170 and 9.02.900 through 9.02.902;
(3) Except as specifically permitted by RCW 9.02.100 through 9.02.170 and 9.02.900 through 9.02.902, the state shall not deny or interfere with a woman's fundamental right to choose or refuse to have an abortion; and
(4) The state shall not discriminate against the exercise of these rights in the regulation or provision of benefits, facilities, services, or information.
The parents ask this court to interpret Initiative 120 as conflicting with McKernan. When interpreting an initiative measure, we must ascertain the voters' intent in approving the measure. Pierce County v. State, 150 Wn.2d 422, 430, 78 P.3d 640 (2003). Where the language of the initiative is clear and unambiguous, a court may not look beyond the text of the measure; but if it is susceptible to more than one reasonable interpretation, we may determine the voters' intent by applying canons of statutory construction. Id. Initiative 120 is limited to an individual's right to choose or refuse birth control or an abortion.
Contrary to the parents' position, there is nothing in Initiative 120's language even remotely suggesting someone who has exercised that right has made a final and unquestionable decision that having another child has no benefit whatsoever. The parents failed to show that McKernan conflicts with the rights conferred by Initiative 120. The Initiative also does not change McKernan's holding that it is impossible to determine with reasonable certainly whether the birth of a healthy child can damage parents. In essence, the parents ask this court to read Initiative 120 to create a fundamental right to effective, fool-proof, and non-negligent birth control or sterilization procedures. But the Initiative creates no such right.
Initiative 120 also does not speak to the McKernan court's concern that allowing recovery for child-rearing costs for a healthy child could cause emotional damage to that child. The parents here appear to claim that a child born after a failed sterilization has no benefit and thus there are no benefits to be offset. The reassessing behind their claim increases concern for the child's emotional well being.
There is no conflict between barring recovery for the costs of raising a healthy child in a failed sterilization case and recognizing an individual's right to choose or refuse birth control or an abortion. The parents' reading of the Initiative would guarantee that a parent faced with a pregnancy after a failed sterilization could seek an abortion.
The parents next argue that McKernan conflicts with Harbeson. They point to three areas of conflict, two of which are raised for the first time on appeal. Generally, this court will not address issues raised for the first time on appeal. RAP 2.5(a). "However, this rule does not apply when the question raised affects the right to maintain the action." Jones v. Stebbins, 122 Wn.2d 471, 479, 860 P.2d 1009 (1993) (quoting New Meadows Holding Co. v. Wash. Water Power Co., 102 Wn.2d 495, 498, 687 P.2d 212 (1984)). Because the parents' arguments could conceivably provide a basis to overrule McKernan, we will consider them.
The parents assert that while Harbeson adopts the Restatement (Second) of Torts sec. 920, McKernan does not. Section 920 allows damages to a plaintiff by a defendant's tortious conduct to be offset by any benefits conferred by that same conduct. The parents say this means the damages and benefits must be of a similar interest. McKernan permitted the damages associated for child-rearing costs to be offset by a dissimilar interest of the benefits of having a healthy child. They argue this violates sec. 920 and Harbeson.
We disagree. First, Harbeson did not adopt this section of the Restatement. Rather the court cites it as authority for the holding that any damages associated with a defective child may be offset by any benefits if the jury so elects. Harbeson, 98 Wn.2d at 477. Second, McKernan determined no damages could be awarded for child-rearing costs, the same type of damages at issue in Harbeson. The court mentions the benefits rule, which is similar to the Restatement provision, but it does not adopt the rule. Instead, the court found it could not be applied in this situation.
The parents assert the McKernan court departed from Harbeson and RCW 4.24.010 when it noted that the emotional benefits of having a child cannot be ascertained with reasonable certainty. Harbeson did allow damages for the parents' emotional distress over their defective children to be offset by any emotional benefits from having the children. Harbeson, 98 Wn.2d at 475. RCW 4.24.010 also permits parents to recover for the `loss of love and companionship of the child and for . . . destruction of the parent-child relationship in such amount as . . . may be just' in actions for the injury or death of a child. This suggests that the emotional benefits of having a child can be ascertained with reasonable certainty. But the ability to establish the emotional benefits of a child with reasonable certainty does not detract from McKernan's holding that a healthy child should not have to suffer the emotional harm that would be associated with the parents arguing in court that they were damaged by their child's very existence.
The parents further take issue with McKernan's position that damages for a healthy child are not recoverable because the emotional harm to the child is too great. Specifically, they argue this conflicts with Harbeson and McKinney v. State, 134 Wn.2d 388, 950 P.2d 461 (1998) (recognizing a cause of action for negligent failure to disclose child's fetal alcohol syndrome), because neither case was concerned with the emotional harm to the child at issue. But this argument ignores important factual distinctions. In Harbeson and McKinney, the child was not healthy. Thus, the parents did not have to argue that the very existence of the child caused them damages. Here, the child was healthy. In order to obtain damages, the parents would have to argue the very existence of the child caused them injury. It was this very situation that the McKernan court sought to avoid. The parents' argument that a child with birth defects should be protected from this type of emotional harm are better addressed by criticizing Harbeson and McKinney. But it is not a basis for overruling McKernan.
Finally, the parents suggest McKernan could lead to unconscionable results. They use the example of a rape victim who gets pregnant, decides to keep the baby, and gives birth to a healthy child. They claim the victim would not be entitled to damages associated with the rape because any damages would have to be offset by the benefit of having a child. This argument is misplaced. McKernan dealt with a wrongful pregnancy action, actions that are a subset of wrongful birth actions and deal with the negligence of health care providers associated with the conception or birth of a child. Their hypothetical has no bearing on the issues here.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Sweeney, J. and Brown, J., Concur.