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Simmerer v. Dabbas9/6/2000
Torts - Negligence - Medical expenses and emotional distress damages associated with a child's birth defect are not recoverable in a wrongful pregnancy action, when.
Medical expenses and emotional distress damages associated with a child's birth defect are not recoverable in a wrongful pregnancy action, when the child's birth defect was not reasonably foreseeable by the defendant who negligently performed the sterilization procedure.
Submitted May 10, 2000
Following the birth of their second child, appellants, James and Theresa Simmerer, decided that Theresa would undergo a permanent sterilization procedure. Appellee Mohamed Dabbas, M.D., negligently performed the procedure, however, and Theresa Simmerer gave birth to a third child, Steven. Steven suffered from a congenital heart defect and died at approximately fifteen months.
The Simmerers, on behalf of themselves and Steven, sued Dabbas and others for medical malpractice. They alleged, inter alia, that Dabbas had negligently failed to sterilize Theresa. Their damages, they asserted, included their pregnancy-related costs, Theresa's pain, suffering, and lost wages during pregnancy and delivery, Steven's medical bills, and emotional suffering as a result of caring for Steven. The Simmerers and Dabbas settled out of court on the issues of the Simmerers' pregnancy-related damages. Their claims for emotional distress and for Steven's medical bills, however, remained pending, and were the subject of a motion for summary judgment by Dabbas, which the trial court granted.
The Simmerers appealed the summary judgment decision that foreclosed the nonpregnancy-related damages. The court of appeals affirmed the judgment of the trial court, holding that the Simmerers had failed to establish that Dabbas's negligence was a proximate cause of the medical expenses and emotional distress associated with Steven's heart defect.
The cause is now before this court pursuant to the allowance of a discretionary appeal.
The question raised by this case is whether damages associated with parenting a child born with a birth defect are recoverable in a wrongful pregnancy action stemming from a negligently performed sterilization procedure, when the doctor who performed the unsuccessful sterilization procedure could not have reasonably foreseen the birth defect. We hold that they are not.
I. Classification of This Action
To put this case in context, we first categorize the typical birth-based medical malpractice actions. In a wrongful pregnancy action, one or both parents of a child born following a negligently performed sterilization procedure bring suit for the costs of having an unplanned child. Johnson v. Univ. Hosp. of Cleveland (1989), 44 Ohio St.3d 49, 51, 540 N.E.2d 1370, 1372. Most United States jurisdictions recognize this cause of action. Smith-Groff, Wrongful Conception: When an Unplanned Child Has a Birth Defect, Who Should Pay the Cost? (1996), 61 Mo.L.Rev. 135, 138. In a wrongful birth action, the parents of an unhealthy child born following negligent genetic counseling or negligent failure to diagnose a fetal defect or disease bring suit for the costs of having to raise and care for an impaired child, arguing that they were wrongfully deprived of the ability to avoid or terminate a pregnancy to prevent the birth of a child with the defect or disease. Johnson, 44 Ohio St.3d at 51, 540 N.E.2d at 1372. The legitimacy of this cause of action has not yet been addressed by this court, but has been recognized by Ohio's Fourth District Court of Appeals in Flanagan v. Williams (1993), 87 Ohio App.3d 768, 623 N.E.2d 185. Finally, in a wrongful life action, an unheal
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