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Taylor v. Kurapati6/25/1999
FOR PUBLICATION June 25, 1999 9:05 a.m.
Plaintiffs-appellants Brandy and Brian Taylor, individually, and Brandy Taylor as next friend and mother of Shelby Taylor, a minor (collectively, the "Taylors"), appeal as of right the trial court's order granting summary Disposition in favor of defendants-appellants Surender Kurapati, M.D ("Kurapati") and Annapolis Hospital with respect to their wrongful birth and negligent infliction of emotional distress claims.
With respect to their wrongful birth claim, the Taylors cite the following description of the tort of wrongful birth in Blair v Butzel Hospital, 217 Mich App 502, 506-507; 552 NW2d 507 (1996), reversed on other grounds 456 Mich 877 (1997):
"If a physician breaches the appropriate duty under the facts of a case, and it can be established that the parents would have avoided or terminated the pregnancy, the necessary causal connection is established. The parents should recover for their extraordinary medical expenses and the extraordinary costs of raising the child, as well as the emotional harm they have suffered." [Quoting Proffitt v Bartolo, 162 Mich App 35, 46; 412 NW2d 232 (1987).]
With respect to their negligent infliction of emotional distress claim, the Taylors cite Wargelin v Sisters of Mercy Health Corp, 149 Mich App 75, 80-81; 385 NW2d 732 (1986), for the proposition that, "Michigan has recognized a cause of action based on negligence when a parent who witnesses the negligent infliction of injury to his or her child suffers emotional distress as a consequence."
We note that counsel for the Taylors at oral argument candidly conceded that, but for the claimed existence of the wrongful birth tort, there would be no issue relating to the statute of limitations. Thus, this case revolves around the wrongful birth tort. In this opinion, we address the basic question of whether, absent legislative action, such a tort has a rightful place in our jurisprudence. We conclude that it does not. We further conclude that the Taylors failed to file their complaint within the applicable limitations period. We also conclude that the undisputed facts of this case do not support a claim for negligent infliction of emotional distress and that summary Disposition was also appropriate as to this aspect of the case.
I. Basic Facts And Procedural History
The Taylors filed their basic complaint in August, 1996. The Taylors alleged that Brandy Taylor had a doctor-patient relationship with Kurapati, a specialist in radiology, and Annapolis. On April 19, 1994, Brandy Taylor gave birth to the couple's daughter, Shelby Taylor. Throughout her pregnancy, Brandy Taylor had been treated by Dr. Leela Suruli. Suruli had ordered that a routine ultrasound be performed in Brandy Taylor's second trimester. The ultrasound was conducted on December 4, 1993, and interpreted by Kurapati, an agent of Annapolis. Kurapati concluded that the pregnancy was seventeen weeks along, plus or minus two weeks, and that there were no visible abnormalities with the fetus. A second ultrasound was conducted on March 16, 1994, and interpreted by another physician, Dr. Cash. Cash indicated that the baby's femurs could not be adequately identified and believed that a high resolution ultrasound could be helpful for further investigation. Suruli told Brandy Taylor that the baby had short femur bones and would merely be shorter than average. Brandy Taylor decided not to have another ultrasound. Shelby Taylor was born on April 19, 1994, with "gross anatomical deformities including missing right shoulder, fusion of left elbow, missing digits on left hand, missing femur on left leg and short femur on right." A study at the University o
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