Argued June 5, 1974. —
Decided June 28, 1974.
APPEAL from an order of the circuit court for Ozaukee county: MILTON L. MEISTER, Circuit Judge. Reversed and remanded with directions.
For the appellants there was a brief by Binder, Zirbel Howard, attorneys, and Irving W. Zirbel of counsel, all of Milwaukee, and oral argument by Irving W. Zirbel.
For the respondents there was a brief and oral argument by Edward P. Rudolph of Milwaukee.
This is an appeal from an order, dated February 21, 1973, overruling defendants' demurrer to plaintiffs' complaint. The complaint, filed September 1, 1972, alleged that, on February 27, 1972, a baby boy was born, alive and well, to its parents, the plaintiffs in this action. That, on July 7, 1971, the mother of the child, Hazel M. Rieck, plaintiff in this action, went to the Port Washington Clinic, named a defendant in this action, for the purpose of obtaining a medical diagnosis. That Dr. Fema So Garay, named a defendant in this action, examined the mother, diagnosed her condition "as a condition other than pregnancy" and prescribed medication for such condition, and that the doctor-defendant informed the mother that she was not pregnant. That, on September 17, 1971, the mother consulted a second obstetrician who diagnosed her as seventeen weeks' pregnant. That the intention of the mother and father, plaintiffs in this action, on July 7, 1971, was to have the mother undergo an operation to terminate pregnancy "because of personal reasons relating to the health of Mrs. Rieck, and the general welfare of the Rieck family." That, when the plaintiffs learned of the pregnancy, it was too late for the medical operation "because of the dangers involved." That the alleged negligence in medical diagnosis by the doctor caused damages to the plaintiffs ". . . in that they now have to accept the moral and legal obligations of raising a fourth unplanned child, who, except for the aforesaid negligence would not have entered life in this world. . . ." Damages in the amount of $300,000, together with costs and disbursements, are sought for stresses involved and the ". . . extra expenditures of sums of money that will have to be raised and spent toward the upbringing of this boy. . . ." On September 27, 1972, defendants demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action. The trial court, by order dated February 21, 1973, overruled the demurrer, from which order the defendants appeal to this court.
This is an action for damages based on the birth of a normal child, healthy and well. The action is brought by the father who sired and the mother who bore the baby boy against a clinic and the obstetrician who allegedly failed to determine and timely inform the mother that she was pregnant.
The basis of the parents' action is that the child, their fourth, was an unwanted addition to the family circle. There is no allegation that the child, once born, is or will continue to be an unwelcome member of the family household. Nor is there any allegation that the parents sought to terminate their parental rights to the child, or place him for adoption. The complaint alleges only that, if the parents had been timely informed of the fact of the mother's pregnancy, they would not have permitted the child to be born to them. The prayer for relief does not suggest that the allegedly negligent obstetrician is to raise the child. The parents will do that. What is demanded is that the costs of rearing the child be transferred to the obstetrician, the clinic and their insurer.
See: Secs. 48.40- 48.43, Stats.
See: Secs. 48.81- 48.97, Stats.
The complaint raises question of public policy, or, more precisely, whether the public policy tests, heretofore laid down by this court, are here met. In this state, negligence plus an unbroken sequence of events establishing cause-in-fact does not necessarily lead to a determination that a defendant is liable for plaintiff's injuries. Recovery, or the determination to impose or not to impose liability, involves public policy considerations. Even where the chain of causation is complete and direct, recovery may sometimes be denied on grounds of public policy because: (1) The injury is too remote from the negligence; or (2) the injury is too wholly out of proportion to the culpability of the negligent tort-feasor; or (3) in retrospect it appears too highly extraordinary that the negligence should have brought about the harm; or (4) because allowance of recovery would place too unreasonable a burden (in the case before us, upon physicians and obstetricians); or (5) because allowance of recovery would be too likely to open the way for fraudulent claims; or (6) allowance of recovery would enter a field that has no sensible or just stopping point. Any one of these public policy considerations could be sufficient to deny recoverability. We find more than one applicable to the allegations of this complaint, requiring a denial of recovery of damages upon the allegations of this complaint upon public policy grounds.
Id. at page 326, quoting Colla v. Mandella, supra, at pages 598, 599.
To permit the parents to keep their child and shift the entire cost of its upbringing to a physician who failed to determine or inform them of the fact of pregnancy would be to create a new category of surrogate parent. Every child's smile, every bond of love and affection, every reason for parental pride in a child's achievements, every contribution by the child to the welfare and well-being of the family and parents, is to remain with the mother and father. For the most part, these are intangible benefits, but they are nonetheless real. On the other hand, every financial cost or detriment — what the complaint terms "hard money damages" — including the cost of food, clothing and education, would be shifted to the physician who allegedly failed to timely diagnose the fact of pregnancy. We hold that such result would be wholly out of proportion to the culpability involved, and that the allowance of recovery would place too unreasonable a burden upon physicians, under the facts and circumstances here alleged.
See: Terrell v. Garcia (Texas Civ. App. 1973), 496 S.W.2d 124, 128, the court holding, in a negligent sterilization case, that the benefits accruing from parenthood outweigh damages accruing from the birth of a healthy child, stating: ". . . These intangible benefits, while impossible to value in dollars and cents are undoubtedly the things that make life worthwhile. Who can place a price tag on a child's smile or the parental pride in a child's achievement? Even if we consider only the economic point of view, a child is some security for the parents' old age. Rather than attempt to value these intangible benefits, our courts have simply determined that public sentiment recognizes that these benefits to the parents outweigh their economic loss in rearing and educating a healthy, normal child. We see no compelling reason to change such rule at this time."
The complaint here alleges what the parents of the child would have done if they had been informed of the fact of pregnancy at the time of the mother's consulting the obstetrician sued. At the time of trial it is entirely predictable that the parents would have firmly testified to the fact of such intention, and its fixed and unalterable character. It is cultivating the obvious to state that, if the door were opened to recovery under such allegation and such subjective testimony as to state of mind or intention, the temptation would be great for parents, where a diagnosis of pregnancy was not timely made, if not to invent an intent to prevent pregnancy, at least to deny any possibility of change of mind or attitude before the action contemplated was taken. We have no hesitancy in concluding that to hold that the allegations of this complaint constitute a cause of action for recoverable damages would open the way for fraudulent claims and would enter a field that has no sensible or just stopping point.
On this appeal the issue is raised as to a duty on the part of parents, claiming that a child of theirs is unwanted, to take steps to terminate their parental rights and place the child for adoption. The issue is raised in reference to mitigation of damages. On the public policy issue, the absence of steps to terminate parental rights is material only as reflecting parental intent to keep and raise the child involved. It is such retention of benefits — the parents keeping their child, and seeking to transfer only the financial costs of its upbringing to the doctor — that is a relevant factor in evaluating the public policy considerations involved. As one court has put it, "To allow damages in a suit such as this would mean that the physician would have to pay for the fun, joy and affection which plaintiff . . . will have in the rearing and educating of this, defendant's fifth child. Many people would be willing to support this child were they given the right of custody and adoption, but according to plaintiff's statement, plaintiff does not want such. He wants to have the child and wants the doctor to support it. In our opinion to allow such damages would be against public policy." We agree.
Shaheen v. Knight (Lycoming County 1957), 11 Pa. D. C.2d 41, 45, 46, denying recovery in a negligent sterilization case.
This court has noted that application of the public policy tests as to recovery of damages ". . . does not in all cases require a full factual resolution of the cause of action by trial before policy factors will be applied by the court. . . ." Where the public policy question is fully presented by the complaint and demurrer, there is no necessity that a full trial precede the court's determination. In the case before us, given plaintiffs' complaint and defendants' demurrer, we hold that it would contravene sound public policy to hold recoverable the damages claimed for the negligence alleged in this case and under these circumstances. Since the child involved might some day read this decision as to who is to pay for his support and upbringing, we add that we do not understand this complaint as implying any present rejection or future strain upon the parent-child relationship. Rather we see it as an endeavor on the part of clients and counsel to determine the outer limits of physician liability for failure to diagnose the fact of pregnancy. This case and this complaint are well beyond such limits.
Hass v. Chicago North Western Ry. Co., supra, at pages 326, 327.
Id. at page 327.
By the Court. — Order reversed and cause remanded with directions to grant the demurrer of the defendants to the complaint of the plaintiffs.