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HARNICHER v. UNIV. OF UTAH MEDICAL CENTER7/31/1998
Plaintiffs David and Stephanie Harnicher, parents of triplets born after in vitro fertilization using donor sperm, brought this action for medical malpractice alleging negligent infliction of emotional distress against defendant University of Utah Medical Center for using sperm from a donor other than the one that the couple had allegedly selected. The trial court found no evidence of physical injury or illness to support an action for negligent infliction of emotional distress and granted summary judgment in favor of the Medical Center. The Harnichers appeal.
FACTS
David and Stephanie Harnicher sought treatment for infertility at the University of Utah Medical Center Fertility Clinic. Artificial insemination using David's sperm yielded no results. The Harnichers then contacted Dr. Ronald L. Urry of the Fertility Clinic regarding the possibility of in vitro fertilization. Dr. Urry suggested a procedure known as "micromanipulation" wherein holes are drilled in the mother's harvested ova to facilitate fertilization. The ova are then placed in a petri dish with harvested sperm and the fertilized ova are subsequently implanted in the uterine wall, enabling the mother to bear her own child. Dr. Urry recommended using a mixture of the husband's sperm and donor sperm.
The Harnichers agreed. The micromanipulation method increased the chances that Stephanie would bear David's biological child. Additionally, the "mixed sperm" procedure potentially allowed the couple to believe and represent that any child born would be David's because if the donor closely matched David in physical characteristics and blood type, the parents would never be sure which sperm actually fertilized the ovum. Therefore the Harnichers evaluated the donor information provided by the Medical Center on that basis. The Medical Center maintains that the couple narrowed the selection to four donors and signed consent forms acknowledging that their doctor would make the final selection. The Harnichers assert, however, that they specifically and exclusively selected donor # 183. Stephanie testified that when clinic employee Doug Carroll informed her that only frozen sperm, which has a lower success rate than fresh, was available from donor # 183 and asked her if she still wanted to do the donor backup, she replied, "Only if you can get 183. . . . I'll take my lower chances. Let's just go with 183."
The procedure was performed, and Stephanie gave birth to triplets, two girls and one boy. Shortly after their birth, one of the babies became ill, requiring blood tests. Two of the children's blood type revealed that they could not possibly have been the children of either David or donor # 183. A DNA test on one of the children established that the father was actually donor # 83, another donor on the Harnichers' list.
Donor # 183, like David, had curly dark hair and brown eyes. Donor # 83 had straight auburn hair and green eyes. One of the triplets has red hair. The Harnichers maintain that the Medical Center's mistaken use of the wrong donor thwarted their intention of believing and representing that David is the children's biological father. They brought this action against the Medical Center alleging that they have "suffered severe anxiety, depression, grief, and other mental and emotional suffering and distress which has adversely affected their relationship with the children and with each other." However, both David and Stephanie testified in their depositions that they had not experienced any bodily harm as a result of the mistake.
After the Medical Center moved for summary judgment, the Harnichers consulted a psychologist, Jeff Kocherhans, Ph.D., who administered various psycholog
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