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Simmons v. Hertzman12/21/1994
Per Curiam.
Appellants Palmo and Harriet Simmon's single assignment of error contends that the trial court erred in granting the motion to dismiss filed by appellees, Dr. Bernard L. Hertzman ("Hertzman"), Dr. Asher O. Hoodin ("Hoodin"), and Hoodin, Levi & Associates, Inc. ("Corporation"), "based upon the belief that a claim for negligent sterilization is derivative." In the Simmonses' accompanying argument they assert that an action for wrongful pregnancy is recognized in Ohio as a direct right of the parent, in which the parent may recover damages proximately caused by the birth of a child subsequent to a doctor's failure to perform a sterilization procedure properly.
On May 3, 1982, Palmo Lee Simmons had a vasectomy, which apparently was performed by Dr. Hoodin. On June 22, 1982, he was seen by Dr. Hertzman, who informed him that he was sterile. In I December 1982, Harriet A. Simmons discovered she was pregnant and a subsequent sperm test determined that Palmo Simmons was fertile. On July 9, 1983, April Lynette Simmons was born with severe abnormalities.
Appellants initially filed a complaint against Dr. Hertzman on November 23, 1983, alleging that "Plaintiff suffered an injury by the negligent failure of the vasectomy by the Defendant and Plaintiffs' child, April Lynette Simmons, will require medical care and attention in the future, the reasonable value of which is unknown at the present time," and that as a result of the negligence "Plaintiffs will incur expenses for the care and maintenance of the child * * * as well as medical expenses to correct the abnormalities at birth." The complaint also alleged that as a result of Dr. Hertzman s alleged negligence, "Plaintiffs' child * * * suffered physical injury and deformity and may suffer mental injury which could diminish her earning capacity and could require special education and care in the future, the reasonable value of which is unknown at the present time."
Appellants' complaint was amended May 6, 1985, to include Dr. Hoodin and the Corporation, alleging that "Plaintiff Palmo Lee Simmons suffered an injury by the negligent failure of the vasectomy procedure and follow-up by Defendant Hertzman and Plaintiffs' child * * * will require medical care and attention in the future, the reasonable value of which is unknown at the present time" and " s a result of the negligence of Defendant Hertzman, Plaintiff Palmo Lee Simmons and his daughter * * * will incur medical expenses for the care and maintenance of the child as well as medical expenses to correct the abnormalities at birth." Also included in the complaint was the allegation that as a result of Dr. Hertzman's negligence, "Plaintiffs' child suffered physical injury and deformity and may suffer mental injury which would diminish her earning capacity and could require special education and care in the future, the reasonable value of which is unknown at the present time." The complaint included a claim for relief in the alternative against Dr. Hoodin and the Corporation if it were determined that Dr. Hoodin performed the vasectomy and a claim on behalf of April Lynette Simmons by Harriet Simmons which incorporated by reference all the allegations set forth in the previous counts.
Dr. Hoodin and the Corporation filed a motion to dismiss based on the failure of the appellants to file their action within the proper statute of limitations. The trial court granted the motion to dismiss, stating that:
"The Court finds that the medical malpractice action filed against defendants, Asher O. Hoodin and Hoodin, Levi & Associates, Inc., by plaintiffs, Mr. and Mrs. Palmo Lee Simmons which includes, but is not lim
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