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Barnes v. Vettraino3/25/2003
regnancy, she would have no right to seek recovery, under a negligence theory, for the mental anguish that she would have unquestionably felt after the birth. In allowing this case to proceed to trial, the jury will be required to place a monetary value on the suffering Mrs. Barnes experienced in undergoing the late-term abortion, but it will also be required, in assessing damages, to necessarily weigh and offset any pain and suffering that was avoided in not giving birth to a potentially impaired child. This would be asking the trier of fact in my opinion to quantify the unquantifiable, which is the reason that the wrongful birth tort and the accompanying benefits rule were rejected in our jurisprudence. Taylor, supra at 349.
I cannot help but be concerned by the message that the majority sends when it allows Mrs. Barnes to recover while denying relief to similarly situated women who choose to carry their pregnancies to term. A rule creating such a preference for the decision to undergo an abortion is unquestionably inconsistent with public policy. Rewarding a woman's decision to terminate her pregnancy with an opportunity to recover for an injury that is withheld from the woman who decides to give birth requires the court to embroil itself in value judgments that it quite properly should avoid. Also, it is a troublesome concept to allow a cause of action that potentially discourages the medical profession from correcting its mistake upon discovery, because to do so may expose it to liability if an abortion occurs whereas there would be no liability if the parties are not informed and the woman proceeds to give birth. Despite the temptation to provide a means to seek recompense and accountability for the negligence of medical personnel, the law cannot provide a remedy for every injury suffered.
Pursuant to binding authority found in Taylor and Michigan public policy as enunciated in case law and statutory provisions, I would reverse the judgment denying defendants' motion for summary disposition.
I respectfully dissent.
William B. Murphy
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