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Bowman v. Davis

Supreme Court of Ohio
Nov 3, 1976
48 Ohio St. 2d 41 (Ohio 1976)


affirming the appellate court's support of the jury's general award for a negligent sterilization, resulting in the birth of twins, one of whom was healthy

Summary of this case from Simmerer v. Dabbas


No. 75-898

Decided November 3, 1976.

Physicians and surgeons — Negligence — Sterilization operation — Action for damages not against public policy — Hospital consent form — Not release of liability, when.

APPEAL from the Court of Appeals for Montgomery County.

When Veda R. Bowman, an appellee herein, became pregnant with her fourth child, she was referred by her family physician to Dr. Kennon W. Davis, appellant herein, and his partner, Dr. Hugh D. Pittman. These specialists in obstetrics and gynecology were recommended to her because she had a history of diabetes, obesity, difficult pregnancy and miscarriage.

During her prenatal care, Mrs. Bowman was advised by the doctors to undergo a bilateral partial salpingectomy, or tubal ligation, immediately after childbirth in order to avoid the hazards of a future pregnancy. Mrs. Bowman and her husband, the other appellee herein, consented to the operation.

On September 24, 1971, Mrs. Bowman gave birth to a daughter. At that time appellant purportedly removed portions of Mrs. Bowman's left and right fallopian tubes.

Before she left the hospital, Mrs. Bowman was either instructed specifically to return to appellant for follow-up care or told she "probably should call and make an appointment." (The testimony on this point is conflicting.) Mrs. Bowman did not return for postnatal care.

After Mrs. Bowman was discharged from the hospital, appellant received a laboratory analysis of portions of the removed tissue. It stated that the tubal lumen, the distinctively lined channel in the fallopian tube through which the egg passes, had not been "seen" in either sample.

Mrs. Bowman meanwhile resumed normal relations with her husband and conceived about 95 days after the September operation. Her pregnancy was not confirmed until May 1972.

On July 30, 1972, Mrs. Bowman gave premature birth to twins, one of whom suffers from such congenital abnormalities as kidney and hip malformation and mental retardation. The other twin appears to be normal.

Mrs. Bowman and her husband instituted an action seeking reimbursement for four basic types of damages: (1) expenses of or stemming from "the foreseeable consequences of this operation" (these include such "physical complications" and "pain and suffering" as the operation "was designed to prevent"); (2) the value of Mrs. Bowman's "society, comfort, care and protection" (including consortium) lost to "other members of the family" during and after her "confinement for the birth of the twins"; (3) expenses due to "the change in the family status," including extra money to compensate for the fact that Mrs. Bowman "must spread her society, comfort, care, protection and support over a large group" and extra money to "replenish the family exchequer so that the new arrivals will not deprive other members of the family"; (4) economic costs of "rearing" the twins (including, in the case of the abnormal twin, the costs of "institutionalization, care, nursing," and "special attention").

At the trial, appellees introduced expert testimony (1) that tubal lumens are the major identifying characteristic of the fallopian tube; (2) that "it was unlikely," given Mrs. Bowman's early conception afterward, that the operation "was done in an acceptable" manner; (3) that it was "medically probable" that appellant had not cut Mrs. Bowman's fallopian tubes but had instead severed a neighboring "round ligament." Appellant's partner testified that proper follow-up procedure would have been to consult with the laboratory pathologist and, if necessary, to contact Mrs. Bowman about the need to practice birth control and to have additional tests made.

Appellant did not object to the court's proposed charge to the jury, which included instructions to weigh the evidence of appellant's negligence during and after the operation, to determine whether Mrs. Bowman had been contributorily negligent, and to restrict its award of damages to "those which are reasonably certain to exist now or in the future as the proximate result of defendant's liability * * *." Neither side submitted interrogatories. The jury rendered a general verdict for appellees in the amount of $450,000 and for Mr. Bowman for loss of consortium and expenses in the amount of $12,500.

The Court of Appeals affirmed the judgment, finding no merit in appellant's claims of error with regard to the validity of the hospital consent form, the dictates of public policy, and the sufficiency of appellees' evidence of negligence, contributory negligence and damages.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Roger B. Turrell Associates Co., L.P.a., and Mr. Roger B. Turrell, for appellees.

Messrs. Thornburgh, Miller Kidd and Mr. William H. Thornburgh, for appellant.

Appellant presents two claims in this cause. One is that "public policy of the state of Ohio" bars "recovery of damages for the `wrongful life' of a child following an unsuccessful sterilization procedure." The other is that such damages are barred when "the patient knowingly and voluntarily signs a sterilization consent form relieving the physician and hospital from responsibility for any unfavorable results."

A third issue, that appellees' damages should be limited to the expenses of the pregnancy after a negligently performed sterilization, was not raised at the appellate level. To the extent that this issue is not settled in our discussion of appellant's other propositions of law, we decline to decide it. State v. Abrams (1974), 39 Ohio St.2d 53, 55.

The Court of Appeals held that the "patient sterilization consent form" signed by the Bowmans prior to Mrs. Bowman's surgery "does not operate as a release of liability and does not bar the instant action."

The main portion of the form provides:

"We do hereby declare that we fully understand that the purpose and effect of such surgical procedure will most probably result in a failure to ever again create, conceive or bear any more children. We hereby voluntarily consent to this operation and absolve the attending physicians and the Miami Valley Hospital from responsibility for any untoward or unfavorable results arising from this procedure."

This court has held indemnity agreements purporting to release a party from the consequences of his negligence and failing to express that intent in "clear and unequivocal" terms to be unenforceable. Kay v. Pennsylvania Rd. Co. (1952), 156 Ohio St. 503. Although the hospital consent form was not an indemnity agreement, it appears to have been designed to release the hospital and attending physicians from the consequences of their negligence. However, that intent is not set out in "clear and unequivocal" terms. Nowhere does the form mention release from liability for negligence. Instead it merely speaks of absolving the hospital and attending physicians from the "unfavorable results" of sterilization. Furthermore, the form does not clearly state the kinds of "unfavorable results" it covers. Since the only result of sterilization described in the form is the "failure to ever again create, conceive or bear any more children," the form can easily be interpreted to apply only to the effects of a successful operation.

The Court of Appeals correctly ruled under the facts of this cause that the Bowmans' signatures on the consent form do not relieve appellant from liability for negligence.

Appellant raised assignments of error with the Court of Appeals as to sufficient proof of negligence, contributory negligence and damages at the trial level. Since no special interrogatories were requested and since the jury issued a general verdict stating that it found for the plaintiffs on the issues joined between the parties, we must presume all issues to have been resolved in favor of the successful parties. Berisford v. Sells (1975), 43 Ohio St.2d 205, 208. The Court of Appeals properly rejected those assignments of error. There were no assertions of error that the amount of the verdict indicated passion on the part of the jury.

The second issue raised by appellant is whether "public policy" prohibits "the recovery of damages for the `wrongful life' of a child following an unsuccessful sterilization procedure."

Much of appellant's argument is irrelevant. This is not a suit for "wrongful life," which asks the jury to measure damages on the relative merits of being versus non-being. It is, instead, a traditional negligence action. At the trial, appellees asserted that the appellant was negligent during and after the tubal ligation, that this negligence was the proximate cause of the birth of the twins, and that the negligence cost the family the expenses of child-birth and rearing.

Actions for "wrongful life" are brought by children claiming damages due to the negligent failure of physicians to sterilize their parents. Because these claims force courts to weigh the value of being versus non-being, courts have been reluctant to recognize this cause of action. Gleitman v. Cosgrove (1967), 49 N.J. 22, 227 A.2d 689.

Support for adapting traditional tort damages to actions for negligent failure to sterilize can be found in a number of other jurisdictions. See Bishop v. Byrne, 265 F. Supp. 460 (S.D.W. Va. 1967); Custodio v. Bauer (1967), 251 Cal.App.2d 303, 59 Cal.Rptr. 463; and Troppi v. Scarf (1971), 31 Mich. App. 240, 187 N.W.2d 511.

Having determined that this is not an action for "wrongful life," we must further determine whether an action following a negligently performed and "unsuccessful sterilization procedure" is against public policy.

It is the opinion of this court that the cause of action pursued successfully by the Bowmans at the trial and appellate levels is not barred by notions of public policy. The choice not to procreate, as part of one's right to privacy, has become (subject to certain limitations) a Constitutional guarantee. See Griswold v. Connecticut (1965), 381 U.S. 479; Roe v. Wade (1973), 410 U.S. 113; and Doe v. Bolton (1973), 410 U.S. 179. For this court to endorse a policy that makes physicians liable for the foreseeable consequences of all negligently performed operations except those involving sterilization would constitute an impermissible infringement of a fundamental right.

For the foregoing reasons, the judgment of the Court of Appeals must be affirmed.

Judgment affirmed.



Summaries of

Bowman v. Davis

Supreme Court of Ohio
Nov 3, 1976
48 Ohio St. 2d 41 (Ohio 1976)

affirming the appellate court's support of the jury's general award for a negligent sterilization, resulting in the birth of twins, one of whom was healthy

Summary of this case from Simmerer v. Dabbas

recognizing cause of action based on negligent sterilization but not deciding the issue of damages

Summary of this case from Schirmer v. Mt. Auburn Obstetrics Gynecologic

In Bowman v. Davis (1976), 48 Ohio St.2d 41, 2 O.O.3d 133, 356 N.E.2d 496, we first recognized a right for parents to recover where medical negligence resulted in the birth of children.

Summary of this case from Hester v. Dwivedi

In Bowman we did, however, distinguish between wrongful pregnancy cases, brought by parents, and wrongful life cases, brought by children.

Summary of this case from Hester v. Dwivedi

In Bowman, the parents of twins born after a negligently performed sterilization procedure sued for pregnancy-related damages, damages to the family "due to `the change in the family status,'" child-rearing costs of raising the twins, and the extraordinary costs of raising one of the twins, who was born with major birth defects.

Summary of this case from Simmerer v. Dabbas

In Bowman v. Davis, 48 Ohio St.2d 41, 356 N.E.2d 496 (1976) (Per curiam), twins were involved, one normal and the other impaired.

Summary of this case from Smith v. Gore

In Bowman, however, the court expressly declined to rule on the issue whether damages should be limited to the expenses of the pregnancy because that issue was not properly before the court. 48 Ohio St. 2d at 44 n.1, 356 N.E.2d at 498 n.1.

Summary of this case from Miller v. Johnson

In Bowman v. Davis (1976), 48 Ohio St.2d 41, 2 O.O.3d 133, 356 N.E.2d 496, the Supreme Court of Ohio made some very significant points.

Summary of this case from Simmons v. Hertzman

In Bowman, plaintiffs filed a complaint against Mrs. Bowman's doctor, alleging he was negligent in performing a bilateral partial salpingectomy, a tubal ligation.

Summary of this case from Kerns v. Schmidt

In Bowman, the parents sued physicians for damages when twins, one of whom had disabilities, were born following a failed sterilization attempt.

Summary of this case from Flanagan v. Williams

In Bowman and Johnson, physicians, in two separate circumstances, attempted to perform surgical operations to sterilize women and eliminate their possible future pregnancies.

Summary of this case from Anderson v. St. Francis-St. George Hospital
Case details for

Bowman v. Davis

Case Details


Court:Supreme Court of Ohio

Date published: Nov 3, 1976


48 Ohio St. 2d 41 (Ohio 1976)
356 N.E.2d 496

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