Summary
In Dorlin v Providence Hospital, 118 Mich. App. 831; 325 N.W.2d 600 (1982), a panel of this Court was presented with the special damages question at oral argument.
Summary of this case from Strohmaier v. Associates in Obstetrics & GynecologyOpinion
Docket No. 59161.
Decided August 25, 1982.
Charfoos, Christensen, Gilbert Archer, P.C. (by Adrienne G. Southgate and Gary D. Siegel), for plaintiff.
Martin, Bacon Martin, P.C., for defendant.
Renee Dorlin had a blood test performed in 1967 at Providence Hospital in order to determine whether or not she was a sickle cell anemia carrier. The results indicated that she was a carrier and she was informed of that fact. Ms. Dorlin allegedly was not informed about the consequences of being a sickle cell anemia carrier. In 1970, Ms. Dorlin married and, shortly thereafter, became pregnant. On March 18, 1971, Ms. Dorlin gave birth to Desiree Dorlin. Later that year, in November, Desiree was diagnosed as suffering from sickle cell anemia.
Renee Dorlin, individually and as next friend of Desiree Dorlin, brought suit in Oakland County Circuit Court on March 1, 1979. The court granted defendant's motion for summary judgment as to the "wrongful life" claim of Desiree and its motion for accelerated judgment as to Renee Dorlin, based on the statute of limitations. We first consider whether the summary judgment as to Desiree was proper.
The standard governing this Court's review of an order of summary judgment, pursuant to GCR 1963, 117.2(1), is well settled. Motions pursuant to this subrule are to be tested solely on the pleadings. Todd v Biglow, 51 Mich. App. 346; 214 N.W.2d 733 (1974). GCR 1963, 117.2(1) tests the legal basis of the complaint, not whether it can be factually supported. Borman's, Inc v Lake State Development Co, 60 Mich. App. 175; 130 N.W.2d 363 (1975). Further, all well pleaded material allegations must be treated as true. Sullivan v Thomas Organization, PC, 88 Mich. App. 77; 276 N.W.2d 522 (1979). In addition, unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion under this subrule should be denied. Crowther v Ross Chemical Manufacturing Co, 42 Mich. App. 426; 202 N.W.2d 577 (1972).
The tort alleged by Desiree is a rather recently developed cause of action for "wrongful life". Desiree alleges that defendant had a duty to inform her mother of the complications associated with being a sickle cell anemia carrier and, if that duty had not been breached, Ms. Dorlin could have taken steps to avoid the creation of Desiree's wrongful life, a life of disease, sickness, and suffering. This tort has been recognized by a few nonauthoritative courts and commentators.
Curlender v Bio-Science Labs, 106 Cal.App.3d 811; 165 Cal.Rptr. 477 (1980). Compare, Turpin v Sortini, 119 Cal.App.3d 690; 174 Cal.Rptr. 128 (1981). Peters Peters, Wrongful Life: Recognizing the Defective Child's Right to a Cause of Action, 18 Duq L Rev 857 (1980).
In Eisbrenner v Stanley, 106 Mich. App. 357; 308 N.W.2d 209 (1981), a panel of this Court ruled that an order of summary judgment in favor of the defendant doctor on baby Eisbrenner's claim of wrongful life was proper because the assessment of damages would be too speculative and impossible to make. In that case, the defendant doctor failed to warn the parents of the risks involved in continuing a pregnancy since the mother had contacted rubella (German measles) during her confinement. The Eisbrenner Court did find that the parents had a cause of action and they could seek damages for both medical expenses and mental distress.
The Court stated:
"[T]he only alternative for the child was nonexistence due to abortion. When only two states are possible, measurement of damages allegedly resulting because one state occurred of necessity requires comparison with the only other alternative in determining whether there was a legal detriment. In the instant case, the child's claim for damages assumes she suffered a detriment by being born defective instead of being aborted. We believe the comparison between nonexistence and deformed life is necessary but impossible to make and juries should not be allowed to speculate on the child's damages. Recognition of the child's cause of action would turn the courts into forums for pure gambling events, since damage awards could range from zero to millions of dollars based on essentially the same evidence. It would make as much sense to award damages based on a throw of the dice. We follow the reasoning in Becker v Schwartz, supra [ 46 N.Y.2d 401; 413 N.Y.S.2d 895; 386 N.E.2d 807 (1978)] and affirm the trial court's decision not to allow the child's action." Eisbrenner v Stanley, 106 Mich. App. 357, 366; 308 N.W.2d 209 (1981).
Plaintiffs argue Eisbrenner is misguided in finding that difficulty of damages precludes recovery. On appeal, plaintiffs put forth a possible method of determining damages. See A Cause of Action For "Wrongful Life": [A Suggested Analysis], 55 Minn L Rev 58 (1970).
We have reviewed the case law and recognize the competing public policy concerns involved in this issue. We conclude that Eisbrenner properly articulates the law of this state. Therefore, since no legal cause of action on the part of the child exists for wrongful life, the court's summary judgment order was proper.
At oral arguments on appeal, Desiree's counsel argued that, when the parents fail to bring their claim for medical expenses and mental distress, the child should be allowed a "special cause of action" for the medical expenses. It was argued that this cause of action could be created without disturbing or conflicting with Eisbrenner v Stanley, 106 Mich. App. 357; 308 N.W.2d 209 (1981). This theory was not advanced in the briefs and no citation to authority was given. Therefore, this argument has not been considered by this Court. Royal Indemnity Co v H S Watson Co, 93 Mich. App. 491, 494; 287 N.W.2d 278 (1979).
While noting that this new cause of action has not been recognized in Michigan, this Court acknowledges that it has recently been approved in California. Turpin v Sortini, 31 Cal.3d 220, 238-239; 643 P.2d 954; 182 Cal.Rptr. 337 (1982). Nevertheless, it would be inappropriate for this intermediate appellate court to create a special damage cause of action with such far-reaching implications. Appropriately, this is a task for our Supreme Court or our Legislature.
Renee Dorlin appeals the court's accelerated judgment order dismissing her cause of action. The validity of her cause of action is not being contested but only whether it is barred by the statute of limitations. Ms. Dorlin contends that wrongful life (on behalf of a defectively born child) and wrongful birth (on behalf of the parents of such a child) causes of action are new creatures in American jurisprudence and that the Legislature has not yet created a limitation period for either. The above is an overcomplication, if not a misstatement, of Renee Dorlin's claim. The claim sounds in professional negligence and is governed by the medical malpractice statute, MCL 600.5805(4); MSA 27A.5805(4). A malpractice cause of action accrues in accordance with the provisions of MCL 600.5838; MSA 27A.5838, which provides that the two-year limitation period runs from the date of last treatment for a matter out of which the claim arose or six months from the date when the malpractice was or should have been discovered, whichever is later. Defendant asserts that the last day of treatment of Renee Dorlin relative to determining whether she was a carrier of sickle cell anemia was 1967 and that she discovered or should have discovered the alleged malpractice in 1971 when Desiree was diagnosed as suffering from the disease. Therefore, the hospital argues that both the two-year period after last treatment and the six-month period after discovery had run long before the action was brought. We must agree, as did the trial court.
Because of the genetic principles associated with sickle cell anemia, it is more difficult in this case to determine when Ms. Dorlin should have known of the malpractice than in a case where the alleged negligence is a failure to operate or treat properly which results in bodily harm. The complexity and obtuseness of genetic malpractice affects when the claimant should have known of his or her cause of action. However, since she had two pieces of the puzzle before her, Desiree's affliction and knowledge of her own status as a sickle cell carrier, Ms. Dorlin should have discovered the alleged malpractice in or about 1971.
The trial court properly dismissed the Renee Dorlin action on the basis of the statute of limitations.
Affirmed.