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Wasdin v. Mager8/3/2005
oved for summary judgment on the entire complaint, arguing that Dr. Dohn's testimony did not establish proximate cause. They also moved for partial summary judgment on the claim for mental distress damages caused by the economic pressures of raising a fourth child.
Regarding the partial summary judgment motion, the court held that damages associated with raising the child were not recoverable and therefore granted that motion. The plaintiffs appeal this grant of partial summary judgment in Case No. A05A1562. Regarding the argument on proximate cause, the trial court held that Dr. Dohn's testimony sufficiently established proximate cause and therefore denied that portion of the motion. Dr. Mager (not joined by Dr. Dede) cross-appeals this denial in Case No. A05A1463.
Case No. A05A1462
1. Georgia recognizes a medical malpractice claim for wrongful pregnancy caused by negligent sterilization. Fulton-DeKalb Hosp. Auth. v. Graves. Damages for such an action include expenses for the unsuccessful medical procedure which led to the pregnancy, pain and suffering, medical complications, costs of delivery, lost wages, and loss of consortium. Id. at 443 (2). However, "the cost of raising a child cannot be recovered." Id. at 444 (3). See Etkind v. Suarez ("wrongful pregnancy will not authorize a recovery of the expenses of raising the child"). The rationale is that, "given the values cherished by our society, a parent cannot be said to have suffered an injury in the birth of a child." Graves, supra at 444 (3).
Wasdin seeks to circumvent this rule by seeking to recover not the expenses of raising her fourth child, but rather to recover for the mental distress caused by the expenses of raising the child. We have previously rejected such a backdoor approach. In Blash v. Glisson, which involved a wrongful pregnancy claim arising out of negligent sterilization, the parents asserted not only a claim for the cost of raising the child, but also a claim on behalf of their other children for damages arising from those children's having to share the family income with another individual. Finding no meaningful distinction between this claim and the parents' disallowed claim for the cost of rearing the child, we reasoned that the siblings' claim was simply the way in which the increased expense of raising another child would affect the older children. Id. at 104 (2).
Similarly, Wasdin's claim here for the mental distress caused by the cost of raising the fourth child is simply a way in which the increased expense of raising that child will affect the parents. We reject the claim for the same reasons set forth in Blash. Accordingly, we affirm the grant of partial summary judgment on this claim for damages.
Case No. A05A1563
2. Dr. Mager argues that the court should have granted summary judgment on all claims on the ground that the expert testimony of Dr. Dohn did not establish proximate cause. We disagree.
Holding that " roximate cause is that which, in the natural and continuous sequence, unbroken by other causes, produces an event, and without which the event would not have occurred," Zwiren v. Thompson emphasized that " hat amounts to proximate cause is undeniably a jury question" (except in plain and palpable cases). (Punctuation omitted.) Because of the specialized knowledge involved, Zwiren concluded that in a medical malpractice action, the plaintiff must use expert testimony to establish proximate cause. Id. at 500. Zwiren then synthesized what the expert must say:
The appellate decisions state that the expert testimony must provide a causal connection that is more than mere chance or speculation; that it must provid
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