Summary
recognizing cause of action on behalf of child where defendant physician's failure to warn mother of risks associated with failed attempt to induce early termination of pregnancy with methotrexate that led to infant being born with severe defects
Summary of this case from Dowling v. A.R.T. Inst. of Wash, Inc.Opinion
CV146024908S
06-18-2018
Xavier VASQUEZ v. Gerard ROY, M.D. et al.
UNPUBLISHED OPINION
PETER EMMETT WIESE, J.
I
PROCEDURAL HISTORY
This is a civil action brought by the plaintiffs, Angely Ortiz, individually and on behalf of her minor child, Xavier Vasquez, against the defendants, Gerard Roy, M.D. and New Britain Obstetrical & Gynecological Group, PC, generally in the nature of a medical malpractice action. The defendants seek judgment as a matter of law on count one of the operative amended complaint (# 175), wherein Xavier seeks damages for injuries suffered in utero as a result of allegedly deficient medical care. Xavier alleges the following: On February 8, 2012, the defendants undertook the care and treatment of Angely, who was pregnant, and Xavier, then in utero. Angely consulted with the defendants regarding termination of her pregnancy. On March 1, 2012, Roy administered the medication methotrexate to Angely to medically terminate her pregnancy. Methotrexate, a chemotherapy agent, is not FDA approved to terminate pregnancies and is toxic to the fetus. It stops fetal cells from multiplying and dividing, and when administered causes severe genetic abnormalities to the fetus. On March 15, 2012, the defendants determined that the attempted termination was unsuccessful. The defendants did not disclose to Angely that when methotrexate fails to induce abortion, the fetus is at high risk for being born with severe deformities. Angely decided to continue with her pregnancy and the defendants continued to care for the plaintiffs. On August 12, 2012, after it was determined that Xavier was suffering intrauterine growth retardation, Angely underwent a cesarean section and delivered Xavier at thirty-two weeks. Xavier’s intrauterine growth retardation was caused by his in utero exposure to methotrexate. As a result of his prematurity, Xavier suffered from significant respiratory distress, requiring transfer to the neonatal intensive care unit. As a result of the exposure to methotrexate, Xavier suffers from severe congenital anomalies. Xavier’s premature birth and congenital abnormalities were caused by the defendants’ negligence in using methotrexate to terminate a pregnancy beyond seven weeks gestation when it is unlikely to effectively terminate a pregnancy, and failing to ensure that Angely understood the risks that methotrexate would poison her fetus, and would seriously and permanently affect the health and development of the fetus when it failed to induce abortion. In compliance with General Statutes § 52-190a (a), the plaintiffs attached a medical opinion letter detailing the basis for medical negligence.
At a trial management conference on September 13, 2017, the defendants alerted the plaintiffs and the court, for the first time, of their intention to file a motion for summary judgment on count one of then-operative revised complaint on the ground that it alleged a non-cognizable claim for wrongful life. After receiving permission, the defendants filed their motion for summary judgment and supporting memorandum of law on October 12, 2017. On October 18, 2017, the plaintiffs filed a request to amend their complaint to "eliminate allegations of negligence and [clarify] the remaining causes of action." With no objection from the defendants, the amended complaint became the operative complaint. The plaintiffs also filed, on November 18, 2017, an objection to the defendants’ motion for summary judgment, arguing that count one sounds in prenatal tort. On November 20, 2017, the defendants filed a reply to the plaintiffs’ objection.
On March 2, 2018, the parties appeared before the court for oral argument on the defendants’ motion for summary judgment and the plaintiffs’ objection thereto. At oral argument, the court requested that the parties file supplemental briefs to bring to the court’s attention any additional case law addressing factually similar circumstances. The plaintiffs filed their supplemental brief on March 6, 2018. The defendants filed their supplemental brief on March 16, 2018, wherein they raised, for the first time, an argument that a physician providing abortion services cannot owe a duty to a fetus without violating a woman’s constitutional rights.
II
DISCUSSION
A. Legal Standard
"[T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading ... It is incumbent on a plaintiff to allege some recognizable cause of action in his complaint." (Citation omitted; internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 401-02, 876 A.2d 522 (2005). Nevertheless, because the gravamen of the defendants’ motion for summary judgment is the legal insufficiency of count one, the court will apply the legal standard relative to a motion to strike. See id., 403 (applying appellate standard for review of motion to strike in context of motion for summary judgment challenging legal sufficiency of pleading). "[A] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court ... [The court] takes the facts to be those alleged in the complaint ... and [the court] construes the complaint in the manner most favorable to sustaining its legal sufficiency ... If facts provable in the complaint would support a cause of action, the motion to strike must be denied ... Thus, [the court] assumes the truth of both the specific factual allegations and any facts fairly provable thereunder." (Internal quotation marks omitted.) Id., 400. "[T]he construction of a pleading is a question ultimately for the court." Home Oil Co. v. Todd, 195 Conn. 333, 340, 487 A.2d 1095 (1985). "The nature and character of a cause of action are primarily fixed and determined by the allegations of facts in the complaint and are not controlled by the conclusions of the pleader or by the statements of counsel forming no part of the record." Tomlinson v. Caciopli, Superior Court, judicial district of New Haven, Docket No. CV-99-0432372-S (July 3, 2001, Licari, J.); see Doe v. Yale University, 252 Conn. 641, 689, 748 A.2d 834 (2000) ("[t]he question is not the label placed on the claim"). "It is ... the facts alleged which determine the cause of action, and not the nomenclature employed." Hartford Accident & Indemnity Co. v. Chung, 37 Conn.Supp. 587, 595, 429 A.2d 158 (1981).
B. Wrongful Life
The defendants contend that count one states a claim for wrongful life because Xavier is seeking damages for being born. The defendants acknowledge that there are no Connecticut appellate decisions addressing whether to recognize such a cause of action, but note that the majority of Connecticut superior courts have followed the trend of other jurisdictions in declining to allow a claim of wrongful life. The defendants point to four policy reasons underpinning the non-recognition of a wrongful life claim: (1) A physician cannot owe a fetus a duty to terminate his life; (2) being born with a handicap, instead of not being born, is not a legally cognizable injury; (3) the law is not equipped to make a damages calculation by comparing the benefits of life as opposed to no life at all; and (4) wrongful life claims would stretch the limits of tort law and lead to unpredictable outcomes.
The plaintiffs contend that Xavier is not alleging that the defendants were negligent in causing him to be born. Rather, the plaintiffs assert that count one states a cognizable claim for prenatal tort because Xavier is alleging he would have been born without physical deformities but for the defendants’ erroneous advice to terminate the pregnancy via administration of methotrexate.
Wrongful life claims are "brought by or on behalf of genetically or congenitally impaired children against medical professionals whose negligent failure to predict or to diagnose their congenital or genetic disease was allegedly the proximate cause of their birth and having to live in an impaired condition." Siemieniec v. Lutheran General Hospital, 117 Ill.2d 230, 238, 512 N.E.2d 691 (1987), overruled in part on other grounds by Clark v. Children’s Memorial Hospital, 955 N.E.2d 1065 (2011). "Wrongful life denotes a cause of action brought by the infant itself on allegations that its very existence is wrongful and that ‘but for’ the defendant’s misfeasance it would not exist." (Internal quotation marks omitted.) Donnelly v. Candlewood Obstetrics-Gynecological Associates, P.C., Superior Court, judicial district of Danbury, Docket No. 302086 (June 8, 1992, Moraghan, J.) ; see Rich v. Foye, 51 Conn.Supp. 11, 35 (2007) ("[i]n a wrongful life claim, [t]he child does not allege that the physician’s negligence caused the child’s deformity" (internal quotation marks omitted) ). The tragic fact in a wrongful life case is that there was never a possibility the child would have been born healthy. See Siemieniec v. Lutheran General Hospital, supra . "[T]he only alternative to their suffering, and the standard against which their compensation must be determined, is nonexistence." Id., 242. "The common theme of the decisions that refuse ... recognition to [a wrongful life] cause of action concur in the inherent inability of the courts to resolve the ultimate question presented, i.e., whether the injury complained of, birth, is any injury at all. Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians." Donnelly v. Candlewood Obstetrics-Gynecological Associates, P.C., supra
.
This court finds that Xavier’s claim does not sound in wrongful life because he is seeking to hold the defendants accountable for causing his physical injuries and deformities. Xavier does not allege any failure on the part of the defendants to predict or diagnose a disease or defect, and he does not allege that the injury suffered is his birth or existence. Cf. Sheppard-Mobley v. King, 4 N.Y.3d 627, 830 N.E.2d 301 (2005) (allegations that a termination procedure, itself, was negligently performed, i.e., the doctors negligently failed to administer the proper dosage of methotrexate to abort the pregnancy, would sound in wrongful life). To the contrary, Xavier alleges that the defendants caused his developmental damages by negligently exposing him to methotrexate in utero, as a result of failing to conform to professional standards when determining the method of abortion. These are not the type of allegations that would necessarily cause the trier of fact to delve into the Hobson’s choice of existence versus non-existence. "In the case of a prenatal injury resulting in disability, the plaintiff can establish harm based on a comparison between his or her life with the disability and his or her life without the disability, because the defendant actually caused the alleged disability. As a result, establishing harm from a prenatal injury does not require comparing life to nonexistence." Tomlinson v. Metropolitan Pediatrics, LLC, 362 Or. 431, 457, 412 P.3d 133 (2018). The damages sued for are those suffered by the child since birth and which he will continue to suffer as a result of that injury.
C. Prenatal Tort- Duty of Care
Connecticut recognizes that "[a]n infant who has sustained injuries prior to birth, whether the infant is viable or not at that time, has a cause of action in negligence against the alleged wrongdoer." In re Valerie D., 25 Conn.App. 586, 590, 595 A.2d 922 (1991), rev’d on other grounds, 223 Conn. 492, 613 A.2d 748 (1992). As with any tort, however, for Xavier to have a legally cognizable prenatal tort claim, he must have been owed a duty of care by the defendants. The defendants assert that they could not have owed a duty to Xavier because, in the context of the abortion decision, Xavier was not a patient, but was "the functional equivalent of a ‘third party’ whose theoretical interests" conflicted with those of their patient, Angely.
Our Supreme Court has acknowledged that a physician rendering prenatal care to a mother also has a physician-patient relationship with the fetus. See Neuhaus v. DeCholnoky, 280 Conn. 190, 219, 905 A.2d 1135 (2006); see also Gorke v. Le Clerc, 23 Conn.Supp. 256, 261 (1962) (Connecticut recognizes a legal duty to a fetus for the breach of which a wrongdoer may be held liable). And, although medical interventions may, at times, be directed more particularly to either the mother or her fetus, "[t]he welfare of each is intertwined and inseparable." (Internal quotation marks omitted.) Vrzivoli v. Women’s Health Associates, Superior Court, judicial district of Fairfield, Docket No. CV-08-5014640-S (March 7, 2011, Levin, J.); see Ortiz v. United States, 786 F.3d 817, 840 (10th Cir. 2015) (Ebel, J., concurring), cert. denied, __ U.S. __, 137 S.Ct. 1431, 197 L.Ed.2d 571 (2017) ("the very nature of the mother-fetus relationship ... is unlike any other ... [M]other and fetus are inexplicably intertwined- they share oxygen, nutrients, and a physical body"). Nevertheless, although sometimes characterized as joint victims of negligent obstetrical care, Flory v. Henrique, Superior Court, judicial district of Danbury, Docket No. CV-00-0340368-S (May 3, 2001, White, J.), "the mother and the child in utero may each be directly injured and are each owed a duty independent of the other." Sheppard-Mobley v. King, 10 A.D.3d 70, 75 (N.Y.App.Div. 2004), aff’d in part and modified in part, 4 N.Y.3d 627, 830 N.E.2d 301 (2005). Indeed, Connecticut’s recognition of prenatal torts is based on the notion that "[t]o deny the infant relief ... is not only a harsh result but its effect is to do [justice] to an outmoded, timeworn fiction not founded on fact and within common knowledge untrue and unjustified" that a fetus does not have a separate existence. (Internal quotation marks omitted) In re Valerie D., supra, 25 Conn.App. 590-91; see Tursi v. New England Windsor Co., 19 Conn.Supp. 242, 247-48 (1955).
This court finds that the physician-patient relationship between the defendants and Xavier, while in utero, was not extinguished because the medical judgment at issue related to a termination of the pregnancy. The defendants’ professional relationship with Xavier gave rise to a duty to conform to professional standards with regard to the choice of an appropriate abortion technique. See generally Colautti v. Franklin, 439 U.S. 379, 401, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979) ("[t]he choice of an appropriate abortion technique ... is a complex medical judgment about which experts can- and do- disagree"). To the extent the defendants’ negligently exercised their medical judgment, they can be held liable to Xavier for any resulting prenatal injuries.
In support of their position that any duty to Xavier would necessarily have interfered with their duty of undivided loyalty to Angely, the defendants rely on Planned Parenthood v. Danforth, 428 U.S. 52, 58, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), wherein the United States Supreme Court struck down a state statute which imposed a structure for the control and regulation of abortions, including requiring a physician to exercise "professional care ‘to preserve the life and health of the fetus’ and, failing such, deeming him guilty of manslaughter and making him liable in an action for damages ..." The relevant section of the statute provided: "No person who performs or induces an abortion shall fail to exercise that degree of professional skill, care and diligence to preserve the life and health of the fetus which such person would be required to exercise in order to preserve the life and health of any fetus intended to be born and not aborted. Any physician or person assisting in the abortion who shall fail to take such measures to encourage or sustain the life of the child, and the death of the child results, shall be deemed guilty of manslaughter ... Further, such physician or other person shall be liable in an action for damages." (Internal quotation marks omitted.) Id., 82. The U.S. Supreme Court found this section unconstitutional because "it impermissibly [required] the physician to preserve the life and health of the fetus, whatever the stage of pregnancy" and, thereby, effectively precluded abortion. Id., 82-83. Here, the defendants assert that a duty to Xavier would be inconsistent with Danforth because General Statutes § 52-184c(a) uses almost the same definition for standard of care. This court disagrees. Finding that the defendants owed a duty to Xavier, pursuant to the physician-patient relationship, to exercise an acceptable and appropriate level of care and skill in determining the method of pregnancy termination does not have the effect of impermissibly precluding abortions.
"The prevailing standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers."
Furthermore, contrary to the defendants’ assertion, this court’s conclusion does not offend the constitutional principles set forth in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and its progeny. "[T]he right protected by Roe is a right to decide to terminate a pregnancy free of undue interference by the State." Planned Parenthood v. Casey, 505 U.S. 833, 887, 112 S.Ct. 2791 120 L.Ed.2d 674 (1992). "What is at stake is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so." Id., 877. There is no constitutional infirmity in recognizing that the defendants owed Xavier a duty arising out of their physician-patient relationship to conform to professional standards when exercising their medical discretion in the choice of abortion method. "Abortion methods vary depending to some extent on the preferences of the physician and, of course, on the term of the pregnancy and the resulting stage of the unborn child’s development," but "[t]he law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community." Gonzales v. Carhart, 550 U.S. 124, 134, 163, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007).
Judicial action is regarded as action of the State for purposes of the Fourteenth Amendment. Shelley v. Kraemer, 334 U.S. 1, 14-18, 68 S.Ct. 836, 92 L.Ed. 1161 (1948).
III
CONCLUSION
In sum, this court finds that count one of the amended complaint states a cognizable claim for prenatal tort. Accordingly, the defendants’ motion for summary judgment is denied.