CARLEI NACOLE GRUBBS BY AND THROUGH HER NEXT FRIEND, S/ KIMBERLY SUZANE GRUBBS, ET AL . V BARBOURVILLE FAMILY HEALTH S/ CENTER, P .S .C ., ET AL . AND NATHAN ROBERT BOGAN BY AND THROUGH HIS NEXT FRIENDS, GRETCHEN BOGAN AND DANIEL S/ BOGAN, ET AL . V ALTMAN & MCGUIRE, P .S .C ., ET AL .
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2001-SC-0563-DG
AND
2001-SC-0961-DG
CARLEI NACOLE GRUBBS BY AND
THROUGH HER NEXT FRIEND,
KIMBERLY SUZANE GRUBBS, ET AL.
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MOVANTS/
CROSS RESPONDENTS
ON APPEAL FROM THE COURT OF APPEALS
1999-CA-0468 and 1999-CA-0563
KNOX CIRCUIT COURT NO . 97-CI-00277
BARBOURVILLE FAMILY HEALTH
CENTER, P .S .C., ET AL.
RESPONDENTS/
CROSS MOVANTS
AND
2001-SC-0571-DG
AND
2001-SC-0959-DG
NATHAN ROBERT BOGAN BY AND
THROUGH HIS NEXT FRIENDS,
GRETCHEN BOGAN AND DANIEL
BOGAN, ET AL.
V
MOVANTS/
CROSS RESPONDENTS
ON APPEAL FROM THE COURT OF APPEALS
1999-CA-0212
PIKE CIRCUIT COURT NO. 94-CI-00434
ALTMAN & MCGUIRE, P .S .C ., ET AL.
RESPONDENTS/
CROSS MOVANTS
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
AFFIRMING I N PART, REVERSING IN PART
AND REMANDING
This Court granted discretionary review to consider two issues of first
impression in this Commonwealth . The first is whether the parents of a child born with
incurable and profound birth defects have a cause of action against a physician for
failing to correctly diagnose and/or inform them of the fetal medical condition in time for
an abortion . The second issue is whether the child has a claim for the same medical
errors or omissions .' To decide these issues, we must focus on three areas of inquiry :
(1) whether these are new causes of action requiring legislative authorization, or
whether they are conventional negligence cases ; (2) if we determine that they are
traditional negligence actions, whether, as a matter of law, the elements of negligence
can be proven ; and (3) whether there are public policy considerations that affect the
analysis . Both cases were decided upon summary judgment, and thus we are called
upon to review the case to determine if it should proceed to trial .2
THE GRUBBS CASE
In both cases, the plaintiffs allege that early diagnostic procedures
revealed the birth defects, but that the physicians failed to accurately interpret and/or
report the results . In late 1995, Kimberly Grubbs sought prenatal care from Dr. B .R.
Jung at the Barbourville Family Health Center. On April 19, 1996, when Ms. Grubbs
was approximately 24 weeks pregnant, Dr. Jung performed a prenatal screening
ultrasound . Ms. Grubbs and her husband were informed that the results showed that
the pregnancy was progressing normally . Approximately two months later, a second
'Although these causes of action are often referred to as "wrongful birth" and "wrongful
life," respectively, these terms can be misleading . See Schork v. Huber, Ky., 648
S .W .2d 861, 863 (1983)(Leibson, J . dissenting)("The issue is not as dramatic as
depicted . . . We are simply called upon to decide whether a child born as a result of a
doctor's negligence is a compensable element of damages") .
2 Steelvest v. Scansteel Service Center, Inc. , Ky., 807 S .W .2d 476 (1991).
ultrasound was performed . Thereafter, Dr. Jung first informed the parents that the fetus
might have birth defects. Dr . Jung referred Ms. Grubbs to the University of Kentucky
Medical Center for further evaluation . On June 24, 1996, in the eighth month of
pregnancy, a level II ultrasound was performed by Maternal/Fetal Medicine Specialist
Dr. Douglas Milligan, and he determined that the fetus had spina bifida and
hydrocephalus . On July 22, 1996, Carlei Nacole Grubbs was born with the diagnosed
birth defects. She is also paralyzed from the waist down, has poor vision and
misshapen kidneys.
The Grubbs's brought a negligence action against Dr. Jung and the
Barbourville Family Health Center. The Grubbs's alleged that the defendants
negligently failed to interpret the April 19, 1996 ultrasound correctly, that they failed to
inform the Grubbs's that the ultrasound revealed the presence of profound birth
defects, and that they failed to inform the Grubbs's of other prenatal diagnostic tests for
spina bifida and hydrocephalus . The Grubbs's alleged that if they had been informed of
the correct diagnosis at the time of the April ultrasound, they would have terminated the
pregnancy ; and therefore, the defendants' failure to timely notify them of the defects
prevented them from making an informed decision to continue or terminate the
pregnancy .
The defendants moved for summary judgment, claiming that Kentucky
does not recognize causes of action for wrongful birth and wrongful life . The trial court
ruled that it would follow the perceived majority rule and allow the wrongful birth action
to proceed . The claim was not a new cause of action, the trial court stated, but a
traditional medical negligence claim requiring the elements of duty, breach, causation
and injury to be proven for the plaintiffs to prevail .
However, the trial court refused to recognize the wrongful life claim,
stating that as a matter of law there was no injury, and thus the elements of negligence
could not be proven. The trial court's reasoning was that the alleged injury was the
child's life itself, and that it was against public policy to weigh a human life, albeit
imperfect, against no life at all.
The defendants subsequently filed a second motion for summary
judgment based upon the statute of limitations . The trial court granted this motion,
stating that the proper time to file suit was within one year from discovery of the
condition rather than one year from the child's birth. A final judgment of dismissal was
entered .
THE BOGAN CASE
The facts of the Bogan case are similar. In late 1992, Gretchen Bogan
learned that she was pregnant and sought prenatal care from the obstetricians of
Altman, McGuire & Pigg, P .S .C ., in Pike County. In December 1992, when the fetal
gestational age was estimated to be twenty-two weeks, a pre-natal screening
ultrasound was performed by an ultrasound technician . According to Dr. Altman's
deposition, the ultrasound was administered to "confirm the dates and rule out obvious
anomalies." Dr. Altman interpreted the ultrasound as normal and so advised Ms.
Bogan . On March 31, 1993, Nathan Robert Bogan was born several weeks
prematurely by caesarean section. The caesarian was necessary because a cyst had
enlarged Nathan's head . As the cyst occupied most of his cranium, he has no eyes
and no brain, although he has an underdeveloped brain stem that supports minimal
autonomic functioning . He has a cleft palate and cannot speak. He must be strapped
into a wheelchair to sit, and he has no control of his bowels. The Bogans point out in
their brief that Nathan "cannot do anything but exist."
In their complaint, the Bogans maintained that the defect was visible in the
ultrasound films . They sued the defendants, alleging numerous theories of recovery
including medical malpractice, wrongful birth, and wrongful life. The gravamen of the
complaint was that the failure to interpret the ultrasound correctly and to perform an
amniocentesis test prevented the Bogans from making an informed decision about
continuation or termination of the pregnancy . The Kentucky Cabinet for Health
Services, Department for Medicaid Services, intervened to recover sums it had paid on
behalf of Nathan Bogan . The obstetricians sought summary judgment, and the trial
court held that the Bogans could not recover for wrongful life or wrongful birth .
However, the trial court allowed the Bogans' claim for damages for pain and suffering
and permanent scarring suffered in connection with the caesarean delivery to proceed .
That claim remains pending in the Pike Circuit Court. Otherwise, the summary
judgment was made final and this appeal proceeded .
In summary, both trial courts denied the child's claim . As to the parents'
claims, the trial court in the Bogan case held that limited damages could be awarded to
the mother due to the caesarian . The trial court in the Grubbs case authorized the
parents' claim to the full extent of damages (although the case was ultimately dismissed
upon statute of limitation grounds) .
THE COURT OF APPEALS
The Court of Appeals consolidated the two cases to consider whether
Kentucky law recognizes so-called 'birth-related torts,' i .e ., wrongful conception or
pregnancy, wrongful birth, and wrongful life . As a starting point, the Court of Appeals
considered this Court's decision in Schork v. Huber,3 a medical malpractice case
involving a couple who had a healthy child despite having undergone a surgical
sterilization procedure . In Schork, this Court refused to recognize the wrongful
conception claim, stating that "parents cannot recover damages based upon the costs
of raising a healthy but unexpected child from a doctor following an unsuccessful
sterilization procedure .,A Critical to the Court's holding was that damages were highly
speculative, as any recovery would be offset by the benefit to the parents of having a
normal, healthy child. The Court concluded that causes of action for not only wrongful
conception but all birth-related torts were matters within the exclusive purview of the
legislature .5
The Court of Appeals declined to follow the Schork majority, considering
the conclusion about wrongful birth and wrongful life non-binding dictum . Instead, the
Court of Appeals held that these claims should be examined under traditional
negligence principles as advocated in the two Schork dissenting opinions . The Court of
Appeals then considered whether the elements of negligence - duty, breach, causation,
and injury -- were present in the claims .
As to the parents' claims, the Court of Appeals stated that the elements
could be satisfied and held that plaintiffs who allege that a physician is negligent by
depriving them of information necessary to make informed decisions about a pregnancy
have a viable cause of action for medical negligence. As to the claims made by the
children with disabilities, the Court of Appeals concluded that the first element of
Ky ., 648 S .W .2d
4 _Id . at 862.
5
Id . at 863.
861 (1983) .
negligence could not be established, as there is no separate, independent duty owed
by a physician to an unborn child apart from the duty owed to the mother . Thus, the
children's claims were held not actionable as a matter of law. Accordingly, the Court of
Appeals remanded the Bogan case for further proceedings, yet affirmed the dismissal
of the Grubbs case upon statute of limitations grounds.6
ANALYSIS
We agree with the Court of Appeals that the specific issues presented
here were not before the Court in Schork , and thus that its conclusions denying
wrongful birth and wrongful life claims are not controlling . Rather, we must decide
whether the claims now before this Court upon the facts presented can be decided
upon existing tort principles or whether deference to legislative initiative would be more
appropriate . From the pleadings, the claims sound in traditional medical negligence.
Thus, the claims should be analyzed under traditional negligence principles.
We shall first consider the parents' claims against the defendants
according to the primary elements of negligence : duty, breach, and consequent injury.'
As to the first element, in Kentucky a physician has the duty to use the degree of care
and skill expected of a competent practitioner of the same class and under similar
circumstances .$ Moreover, there is a duty of fidelity imposed upon the physician that
6 As this case is being resolved on the merits, it will not be necessary to further review
the Court of Appeals statute of limitations analysis .
Mullins v. Commonwealth Life Ins. Co. , Ky., 839 S .W .2d 245 (1992) ; M & T
Chemicals, Inc. v. Westrick , Ky., 525 S.W.2d 740 (1974); Howard v. Fowler, 306 Ky .
567, 207 S .W.2d 559 (1947); City of Louisville v. Bailey's Guardian , 262 Ky. 486, 90
S .W .2d 712 (1936) .
8 Mitchell v. Hadl , Ky., 816 S.W .2d 183, 185 (1991)(citing Blair v. Eblen , Ky., 461
S .W .2d 370, 373 (1970)) .
arises from the special relationship between a physician and patient, which has been
described as follows:
The relationship of a patient to his physician is by its nature
one of the most intimate . Its foundation is the theory that
the physician is learned, skilled, and experienced in the
afflictions of the body about which the patient ordinarily
knows little or nothing but which are of the most vital
importance to him. Therefore, the patient must necessarily
place great reliance, faith and confidence in the professional
word, advice and acts of his doctor. It is the physicians' duty
to act with the utmost good faith and to speak fairly and
truthfully at the peril of being held liable for damages for
fraud and deceit .9
This duty mandates that a physician "fully disclose his findings on
examination and the opinions he holds ."' ° Accordingly, a physician is obligated to
inform a patient of the diagnosis and the known risks or dangers inherent therein so
that the patient can make an intelligent decision regarding the course of treatment." if
the patient's ailment is beyond the physician's knowledge, ability or capacity to treat
with reasonable success, the physician has a duty to disclose the situation to the
patient and to advise the patient to consult a specialist. 12 If a physician discovers that
an ailment is incurable and fails so to advise the patient, the practitioner is guilty of
negligence .
13
In applying the law to the instant cases, viewing all allegations in the light
most favorable to the plaintiffs as required for review of summary judgment
dispositions, the elements of duty and breach feasibly could be satisfied by adequate
9 Mitchell v . Hadl at 185 (quoting Adam v. Ison , Ky., 249 S .W.2d 791, 793 (1952)); see
also, 61 Am . Jur. 2d, Physicians, Surgeons, and Other Healers § 142, at 256-57 (2002).
1° Mitchell at 185 .
11
61 Am. Jur. 2d, Physicians, Surgeons, and Other Healers §§ 211-212, 318-19
2002) .
2 Id . a t §§213-214 .
13
Id.
proof. Pregnancy is a medical condition for which treatment by physicians had been
sought to ensure the health of the mother and fetus, implicating the physician's duty of
care that mandates full disclosure . A misdiagnosis or withholding of medical
information regarding the pregnancy, therefore, could be considered a breach of the
duty of care . To establish this deviation from the standard of care, the plaintiffs would
need to prove that a reasonably competent obstetrician would have observed the
defects from the ultrasounds and would have reported the results to the patients . This
scenario is analogous to a physician's failure to diagnose and inform a patient of a
cancer or broken bone, etc.
Establishing the other element of negligence, consequent injury, appears
more complex. In Kentucky, if the physician's service falls below the expected level of
care and skill and this negligence proximately caused injury or death, then all elements
of a malpractice action have been met . 14 The parents here contend that by being
negligently deprived of pertinent medical information, they were prevented from making
an informed decision regarding continuation of the pregnancy. The Bogans specifically
maintain that had they known at the time of the ultrasound that their child would be born
without a brain, they would have sought an abortion while doing so was still a legally
and medically available option . The Grubbses maintain that they would have done
likewise had they been informed of the hydrocephalus and spina bifida . Thus, the
plaintiffs contend, injury was in their taking an unwanted pregnancy to term, which was
caused by the allegedly negligent misdiagnoses provided by the defendants . These
14
Reams v. Stutler, Ky., 642 S.W.2d 586 (1982); Wheeler v. Baptist Healthcare
System, Inc. , 14 Fed .Appx. 559 (6th Cir. 2001).
9
arguments are consistent with various views appearing to be a majority which
recognizes causes of action for wrongful birth ."
We have been directed to Azzolino v. Dingfelder, 16 a case from the
Supreme Court of North Carolina in which the court refused to allow a parent's claim for
wrongful birth under a traditional tort analysis . In its consideration of the elements of
negligence, the court first assumed arguendo that the physician defendants owed the
plaintiffs a duty and that the duty had been breached . Although the court considered
the causation element more problematic because the defendants did not cause the
child's genetic defect, the court nevertheless assumed that the birth of the child was the
proximate result of the physician's negligence. 17 The court then stated that a
'traditional' negligence analysis could not proceed beyond this point because it would
have to reach the `untraditional' conclusion "that the existence of a human life can
constitute an injury cognizable at law. "18 With regard to the child's claim, the court was
also unwilling to equate the occurrence of a human life with injury under a traditional tort
analysis and consequently refused to recognize that cause of action.
The Supreme Court of Georgia likewise refused to recognize wrongful
birth actions under a traditional tort analysis in Atlanta Obstetrics and Gynecology
15
See, e.g., Lininger v. Eisenbaum , 764 P .2d 1202 (Colo . 1988)(viable malpractice
claim by parents whose second child was born blind, that physicians were negligent in
failing to diagnose first child's blindness as hereditary and that parents would not have
had second child but for such negligence) ; Phillips v. United States, 508 F.Supp. 544
(D.S .C . 1981) (actionable wrongful birth claim under South Carolina law by parents of
child with Down's syndrome) ; Schroeder v. Perkel , 432 A.2d 834 (N .J . 1981 )(actionable
claim by parents whose second child was born with cystic fibrosis against physicians for
failing to diagnose first child's cystic fibrosis earlier thereby denying parents informed
decision about second pregnancy) .
1 6 337 S .E.2d 528 (N.C. 1985) .
_Id. at 533.
18
Id . at 534.
10
Group v. Abelson .' 9 As in Azzolino , the court believed the duty and breach elements
could be satisfied, stating that a physician has a generalized duty to impart relevant
information to a patient concerning his or her medical condition ,2° and that a woman
has a constitutional right to make an informed decision regarding her procreative
options .21 The Georgia court held, however, that the traditional tort analysis broke
down on the elements of injury and causation . As to the injury, the Georgia court
agreed with the Azzolino majority in its unwillingness to say that an impaired human life
amounted to a legal injury . The Georgia court concluded that the matter was more
suited to the legislature . 22
We agree with this analysis of the injury element. Although the parents in
the instant cases allege that their injury was in being deprived of accurate medical
information that would have led them to seek an abortion, we are unwilling to equate
the loss of an abortion opportunity resulting in a genetically or congenitally impaired
human life, even severely impaired, with a cognizable legal injury . This issue was
addressed by Judge Wachtler of the Court of Appeals of New York in his dissenting
opinion from the majority view that claims for wrongful birth should be recognized . He
explained that to hold the prenatal care physician liable for the product of such a defect
is a distortion of fundamental legal principles .
The heart of the problem in these cases is that the physician
cannot be said to have caused the defect . The disorder is
genetic and not the result of any injury negligently inflicted
by the doctor. In addition it is incurable and was incurable
from the moment of conception . Thus the doctor's alleged
398 S .E.2d 557 (Ga. 1990) .
Zo _Id . at 560 (citing, inter alia, 61 Am . Jur. 2d 358, Physicians,
Surgeons, and Other
Healers § 229 (1981)) .
21
_Id . at 561 (citing Roe v. Wade, 410 U .S . 113 (1973) ; Smith v. Cote , 513 A.2d 341,
346 (N .H . 1986)).
22
Id . at 563 .
negligent failure to detect it during prenatal examination
cannot be considered a cause of the condition by analogy to
those cases in which the doctor has failed to make a timely
diagnosis of a curable disease. The child's handicap is an
inexorable result of conception and birth .
It is a tort without precedent, and at variance with existing
precedents both old and new. Indeed the members of the
majority are divided among themselves as to what principle
of law requires the doctor to pay damages in this case . The
limits of this new liability cannot be predicated . But if it is to
be limited at all it would appear that it can only be confined
by drawing arbitrary and artificial boundaries which a
majority of the court consider popular or desirable . This
alone should be sufficient to indicate that these cases pose
a problem which can only be properly resolved by a
legislative body, and not by courts of law. 23
The foregoing analysis is equally applicable to the wrongful life claims and they, too,
must fail for lack of a cognizable injury .
Returning to Azzolino , the court pointed out the uncertainty and lack of
uniformity in jurisdictions recognizing wrongful birth regarding the proper measure of
damages and the duty to mitigate damages arises from a failure to recognize that the
"injury" they seek to compensate is not an injury under a strictly traditional application of
tort theory. Although under traditional tort law defendants are liable for all the
reasonably foreseeable results of their negligence, successful plaintiffs in wrongful birth
actions have received various types of damages ranging from the expenses resulting
from the impairment but not the normal costs of raising the child, to the entire cost of
raising the child with no reduction for the cost of raising a healthy child, to only the
parents' own suffering and mental anguish resulting from the child's birth but not the
expense of raising the child . There has also been no consensus as to whether the
23
Becker v. Schwartz , 386 N .E .2d 807, 816, 819 (N .Y. 1978) .
12
damages should be reduced or offset by any emotional or other benefit to the parents
through the child's life, or whether there is a duty on the parents to mitigate damages by
placing the child for adoption .24 The divergence of views on damages reveals the flaws
in the conclusion that a life may be considered a legally cognizable injury .
If we held otherwise, there would be questions regarding which incurable
birth defects, left negligently undiagnosed from prenatal diagnostic procedures, should
warrant recovery :
When will parents be allowed to decide that their child is so
"defective" that given a chance they would have aborted it
while still a fetus and, as a result, then be allowed to hold
their physician civilly liable? [is it] [w]hen the fetus is only
the carrier of a deleterious gene and not itself impaired . . .
[or] [w]hen the fetus is of one sex rather than the other? 25
In Taylor v. Kurapati ,26 the court held that the use of the benefits rule in determining
offset of damages in wrongful birth cases could slide quickly into applied eugenics .27
After a brief history of the American eugenics movement of the early twentieth century,
which espoused reproduction of the "fit" and discouraged the birth of the "unfit," the
court noted:
To our ears, at the close of the twentieth century, this talk of
the "unfit" and of "defectives" has a decidedly jarring ring ; we
are, after all, above such lethal nonsense . But are we? We
know now that we all have at least five recessive genes but
. . . when scientists map the human genome, they will unveil
many more potentially harmful genes in each of us . . .
[p]sychoses, hypertension, diabetes, early- and lateappearing cancers, degenerative disorders, susceptibility
genes for communicable diseases, genes for various mental
deficiencies, aging genes, and other variations and disorders
will be ascertained . Will we then see the tort of wrongful
birth extended to physicians who neglect or misinterpret
24
Azzolino at 534-535 .
_Id . at 535 .
26 600 N.W .2d 670 (Mich . Ct. App . 1999).
Id . at 688 .
25
13
genetic evidence and thereby fail to extend the option of a
eugenic abortion to the unsuspecting parents of a
genetically "unfit" or "defective" child? 8
These questions reinforce our view that courts should exercise great restraint in
recognizing such new and complex causes of action .
The Bogans present an interesting issue unrelated to the tort aspects of
the claims, yet which merits attention . The Bogans believe that patients should have a
breach of contract action against the physicians who offered and charged for diagnostic
prenatal testing, yet who allegedly did not perform those services correctly. Despite our
holding denying the tort claim as a matter of law, a physician who contracts and
charges for a service, such as a prenatal ultrasound and consequent opinion as to the
results of the ultrasound, is liable for any breach of contract in this regard . We do not
believe physicians should be relieved of any proven contractual responsibility to report
to patients the accurate results of diagnostic procedures, even if the condition is
"incurable ." In the absence of such a conclusion, we would be forced to hold that
physicians could perform and charge for diagnostic procedures and report whatever
they want if the diagnosis is of an incurable condition, and physicians could legally
charge and be paid for services they did not perform.
In the Grubbs case, the final judgment of the Knox Circuit court dismissing
all claims is reinstated . In the Bogan case, the final judgment dismissing the wrongful
birth and wrongful life claims is reinstated, but the case is remanded to the Pike Circuit
Court for adjudication of the claims for pain and suffering and permanent scarring
suffered in connection with the caesarean section delivery.
Cooper, Graves, and Johnstone, JJ., concur. Wintersheimer, J ., concurs
by separate opinion. Keller, J ., files a separate opinion concurring in part and
dissenting in part in which Stumbo, J., joins .
COUNSEL FOR MOVANTS/CROSS RESPONDENTS,
CARLIE NACOLE GRUBBS, BY AND THROUGH HER NEXT
FRIEND, KIMBERLY SUZANE GRUBBS ; SUZANE GRUBBS ;
and KENNETH CHARLES GRUBBS :
Barbara Elliott Yeager, P.S .C .
P . O . Box 601
Barbourville, KY 40906
COUNSEL FOR RESPONDENTS/CROSS MOVANTS,
BARBOURVILLE FAMILY HEALTH CENTER, P.S.C.; and B .R
JUNG, M .D . :
Mark E. Nichols
Melanie S . Marris
LYNN, FULKERSON, NICHOLS & KINKEL, PLLC
267 West Short Street
Lexington, KY 40507
COUNSEL FOR MOVANTS/ CROSS RESPONDENTS,
NATHAN ROBERT BOGAN BY AND THROUGH HIS NEXT
FRIENDS, GRETCHEN BOGAN AND DANIEL BOGAN ; NATHAN
ROBERT BOGAN; GRETCHEN BOGAN, and DANIEL BOGAN :
Wayne F. Collier
KINKEAD & STILZ, P .S .C .
3120 Wall Street, Suite 350
Lexington, KY 40513
COUNSEL FOR RESPONDENTS/CROSS MOVANTS, ALTMAN,
MCGUIRE & PIGG, P.S .C . ; ALTMAN, MCGUIRE & MCCLELLAN,
P .S .C . ; ALTMAN, MCGUIRE, PIGG & MCCLELLAN, P .S .C . ;
HARRY E. ALTMAN ; JAMES R . PIGG ; RICK A. MCCLELLAN,
AND TOM O. MCGUIRE :
Margaret M. Pisacano
Lynn Rikhoff Kolokowsky
JENKINS PISACANO ROBINSON & BAILEY
Court Square Building, Suite 100
269 West Main Street
Lexington, KY 40507
16
COUNSEL FOR KENTUCKY CABINET HEALTH SERVICES,
DEPT. FOR MEDICAID SERVICES :
George Edward Overbey, Jr.
Monica Mary McFarlin
Kentucky Cabinet for Health Services
Department for Medicaid Services
275 East Main Street, 4 West
Frankfort, KY 40601
COUNSEL FOR AMICI CURIAE, CATHOLICS UNITED FOR
LIFE, NORTHERN KENTUCKY RIGHT TO LIFE, KENTUCKY
COALITION FOR LIFE, AND AMERICAN CENTER FOR LAW
JUSTICE-MIDWEST :
Geoffrey R. Surtees
Francis J . Manion
Center for Law & Justice
6375 New Hope Road
New Hope, KY 40052
Robert C. Cetrulo
President, Northern Kentucky Right to Life
620 Washington Street
Covington, KY 41011
RENDERED : AUGUST 21, 2003
TO BE PUBLISHED
$ttprems Could of 'fimftcky
o
2001-SC-0563-DG
AND
2001-SC-0961-DG
CARLEI NACOLE GRUBBS BY AND
THROUGH HER NEXT FRIEND,
KIMBERLY SUZANE GRUBBS, ET AL .
V
MOVANTS/CROSS RESPONDENTS
ON APPEAL FROM THE COURT OF APPEALS
1999-CA-0468 AND 1999-CA-0563
KNOX CIRCUIT COURT NO . 97-CI-00277
BARBOURVILLE FAMILY HEALTH CARE
CENTER, P .S .C., ET AL.
RESPONDENTS/CROSS MOVANTS
AND
2001-SC-0571-DG
AND
2001-SC-0959-DG
NATHAN ROBERT BOGAN BY AND
THROUGH HIS NEXT FRIENDS,
GRETCHEN BOGAN AND DANIEL
BOGAN, ET AL.
V.
MOVANTS/CROSS RESPONDENTS
ON APPEAL FROM THE COURT OF APPEALS
1999-CA-0212
PIKE CIRCUIT COURT NO . 94-CI-00434
ALTMAN, MCGUIRE & PIGG, P.S.C., ET
AL .
RESPONDENTS/CROSS MOVANTS
CONCURRING OPINION BY JUSTICE WINTERSHEIMER
I concur with the majority opinion, but wish to state additional reasons for my
concurrence . Obviously, the claims in this action involve a macabre twist of logic which
sets them apart from the ordinary medical negligence action. Simply stated, the life of a
child cannot constitute an injury and thus there can be no recognition of either a
wrongful life or a wrongful birth claim .
As stated almost twenty years ago in Schork v. Huber, Ky., 648 S.W.2d 861
(1983):
Wrongful life is a contradiction in terms . It is contrary to the
public policy of this state as expressed by the legislature and
interpreted by the courts.
Schork , supra , sends a clear and unmistakable message . The interpretation of
Schork by the Court of Appeals is erroneous and unacceptable. A claim for wrongful life
is contrary to the intrinsic value and sanctity of human life. It would place the courts in
the position of affirming that death, or nonexistence, is preferable to life.
Because of the "nearly universal" reluctance, Williams v. Univ . of Chicago Hosp. ,
688 N.E .2d 130, 133 (III. 1997), to adopt a premise that devalues human life so
completely, the overwhelming majority of courts, which have considered the issue, have
rejected claims for wrongful life . See etc . Elliott v. Brown, 361 So .2d 546 (Ala . 1978) ;
Goldberg v. Ruskin , 499 N .E .2d 406 (III . 1986) ; Brugqeman v. Schimke , 718 P.2d 635
(Kan . 1986); Taylor v. Kurapati , 600 N .W .2d 670 (Mich . Ct. App . 1999); Azzolino v.
Din, feq ider, 337 S.E.2d 528 (N .C . 1985) ; Hester v. Dwivedi , 733 N.E .2d 1161 (Ohio
2000).
The reason for rejecting a wrongful life claim does not simply involve the difficulty
in applying traditional tort concepts such as duty, breach, injury, proximate cause and
damages . Instead, the paramount reason for rejecting a wrongful life claim involves the
very dignity of the human person and the very sanctity of human life itself . It is basic to
our culture that human life is precious . To recognize wrongful life as a tort would do
violence to that purpose and is completely contradictory to the belief that life is precious .
Medically, the separate existence of the unborn child has been recognized by the
highly respected and widely used medical textbook, Williams Obstetrics (16th Edition,
Appleton-Century-Crofts 1980) . The text observes that "we have entered an era in
which the fetus can be rightfully considered as a second patient . . . fetal diagnosis and
therapy have now emerged as legitimate tools the obstetrician must possess."
The argument that there is a kind of "quality of life" ethic is without any merit.
This Court has rejected the quality of life philosophy in DeGrella by and through Parrent
v. Elston , Ky., 858 S.W.2d 698 (1993), which recognized that an individual has an
inalienable right to life as declared by the United States Declaration of Independence
and protected by Section One of the Kentucky Constitution. Any quality of life ethic
favors the life of the healthy over the infirm, the able-bodied over the disabled and the
intelligent over the mentally challenged . If logically extended, it could produce a culture
that condones the extermination of the weak by the strong or the more powerful .
The Nazi regime under Adolph Hitler is a not too distant reminder of this kind of
eugenic approach . Unfortunately, such thoughts are not limited to foreign nations but
can also be found in the writings of Justice Oliver Wendell Holmes in Buck v. Bell , 274
U .S . 200, 47 S .Ct. 584, 71 L .Ed. 1000 (1927), which approved of sterilization of the
mentally incompetent . Taylor , supra, calls to our attention the influence that Hitler's
experiments with sterilization had on the American eugenics movement . Eugenics
espouses the reproduction of the fit over the unfit and discourages the birth of the unfit.
Bowman, The Road to Eugenics, 3 U. Chic . L. Sch. Roundtable 491 (1996).
It is significant to observe that even in three of the jurisdictions which have
recognized a claim for wrongful life, all have refused to permit an award of
general damages . See Turpin v. Sortini , 643 P.2d 954 (Cal. 1982) ; Procanik v.
Cillo , 478 A.2d 755 (N .J . 1984) ; Harbeson v. Parke-Davis, Inc . , 656 P.2d 483
(Wash . 1983) . The reason for this is the same reason that a majority of
jurisdictions have rejected wrongful life claims completely, namely, that
measuring the value of an impaired life as compared to nonexistence is a task
that is beyond mere mortals, whether judges or jurors . Harbeson, supra .
A claim for wrongful life must be rejected because it would definitely discriminate
against disabled persons and could lead to a eugenic culture where the "unfit" are made
disposable . In effect, doctors and other healthcare professionals would be punished for
not identifying and eliminating any disabled children in the womb. See Bernadette
Kennedy, Comment, The Trend toward Judicial Recognition of Wrongful Life: A
Dissenting View, 31 U .C .L .A. L. Rev. 473 (1983). Such an approach is inherently
dangerous . What "defect" will the law recognize as compensable? Who will draw the
line as to what is severe and what is not severe? Will physical as well as mental
impairments be involved?
It is obvious that many of the so-called disabled can and do have lives of
immense value to themselves and to others . Such a concept is clearly envisioned in the
adoption of the "Americans with Disabilities Act" by the United States Congress several
years ago .
It is also clear that any claim for wrongful birth should not be recognized because
it requires that life itself constitute some kind of legal injury . The court in Taylor clearly
expressed a view that I would adopt regarding wrongful birth cases:
The very phrase "wrongful birth" suggests that the birth of a
disabled child was wrong and should have been prevented .
If one accepts the premise that the birth of one "defective"
child should have been prevented, then it is but a short step
to accepting the premise that the births of classes of
"defective" children should similarly be prevented, not just for
the benefit of the parents but also for the benefit of society
as a whole through the protection of the "public welfare ."
This is the operating principle of eugenics .
Taylor rejected a wrongful birth claim based on its close relationship with
wrongful life . That court recognized that the two claims have some differences
but more similarities . An extremely significant element underlying both wrongful
life and wrongful birth claims is a subjective determination about disability,
retardation and other impairments of the unborn child . If there is to be
consistency in the law, both wrongful life and wrongful birth actions must be
rejected . To permit a claim for wrongful life or wrongful birth would undermine
the proposition that all human persons, no matter their race, religion, or ability,
are precious and worthy of respect .
Graves, J., joins this concurring opinion .
RENDERED : AUGUST 21, 2003
TO BE PUBLISHED
,,Suprm$ !chart u£ 'firttfxchg
2001-SC-0563-DG
AND
2001-SC-0961-DG
CARLEI NACOLE GRUBBS BY AND
THROUGH HER NEXT FRIEND,
KIMBERLY SUZANE GRUBBS, ET AL.
V
ON APPEAL FROM THE COURT OF APPEALS
1999-CA-0468 and 1999-CA-0563
KNOX CIRCUIT COURT NO. 97-CI-00277
BARBOURVILLE FAMILY HEALTH
CENTER, P.S.C., ET AL.
AND
RESPONDENTS/
CROSS MOVANTS
2001-SC-0571-DG
AND
2001-SC-0959-DG
NATHAN ROBERT BOGAN BY AND
THROUGH HIS NEXT FRIENDS,
GRETCHEN BOGAN AND DANIEL
BOGAN, ET AL .
V.
MOVANTS/
CROSS RESPONDENTS
MOVANTS/
CROSS RESPONDENTS
ON APPEAL FROM THE COURT OF APPEALS
1999-CA-0212
PIKE CIRCUIT COURT NO . 94-CI-00434
ALTMAN & MCGUIRE, P.S .C ., ET AL .
RESPONDENTS/
CROSS MOVANTS
OPINION BY JUSTICE KELLER
CONCURRING IN PART AND DISSENTING IN PART
[T]he termination of pregnancy involves controversial and
divisive social issues . Nonetheless, the Supreme Court of
the United States has held that a woman has a
constitutionally secured right to terminate a pregnancy . It
follows from Roe that the plaintiff [mother] may seek, and the
defendants may provide, information and advice that may
affect the exercise of that right. The basic social and
constitutional issue underlying this case has been resolved;
we need not cover ground already traveled by a court whose
interpretation of the National Constitution binds us . Today
we decide only whether, given the existence of the right of
choice recognized in Roe, our common law should allow the
development of a duty to exercise care in providing
information that bears on that choice .'
In Kentucky, a medical malpractice action is merely a "branch of [the] well
traveled road [of common law negligence]," 2 and a medical malpractice plaintiff must
demonstrate the same prima facie case - consisting of duty, breach, causation, and
injury - required in any negligence case. Thus, a medical malpractice plaintiff must
"prove that the treatment given was below the degree of care and skill expected of a
reasonably competent practitioner and that the negligence proximately caused injury[ .] ,,3
The Court of Appeals below concluded that, of the various tort claims presented in
these combined appeals, the only timely-filed tort claim for which a prima facie case
was supported by the evidence - and thus the only tort claim appropriate for jury
resolution - was Gretchen and Daniel Bogan's ("the Bogan parents"') allegation that
their physicians negligently interfered with their reproductive rights when they deprived
them of information necessary to make an informed decision whether to carry the fetus
to term by incorrectly interpreting an ultrasound examination and failing to perform
' Smith v. Cote, 513 A.2d 341 (N .H. 1986) (citation omitted) .
2 Farmers Bank & Trust Co . v. Rice, Ky., 674 S .W.2d 510, 511 (1984) .
3 Reams v. Stutler, Ky., 642 S .W .2d 586, 588 (1982) . See also Mitchell v. Hadl ,
Ky., 816 S .W .2d 183, 185 (1991) .
additional prenatal testing. A majority of this Court concedes that "the claims should be
analyzed under traditional negligence principles ,,4 and concludes that a jury could
reasonably determine that the Bogans' physicians breached a duty of care by
11misdiagnosi[ng] or withholding . . . medical information regarding the pregnancy[.]" 5 A
majority of this Court concludes, however, that none of the plaintiffs in these combined
appeals can demonstrate a cognizable legal injury and therefore holds that the trial
courts should have granted summary judgment for the defendants as to all of the tort
claims against them . Although I agree with the majority's conclusion that the claims
brought on behalf of Carlei Grubbs and Nathan Bogan do not demonstrate an injury for
which a recovery is available in tort, I would hold that a viable jury issue exists as to the
Bogan parents' claim in their complaint that the defendants' negligence "deprived [them]
of the opportunity to make informed decisions as to whether to seek treatment or
terminate the pregnancy ." Accordingly, I agree with the Court of Appeals's holding in its
entirety, and I thus dissent from the majority opinion to the extent that I would reverse
the trial court's partial summary judgment against the Bogan parents and remand the
Bogan parents' negligence action for trial in the Pike Circuit Court . In my opinion, if a
jury finds one or more of the defendants liable to the Bogan parents, the trial court
4 Grubbs v . Barbourville Family Health Center, P.S.C. , Ky.,
(200_) (Slip Op . at 7)
S.W .3d
5 _Id . at
(Slip Op. at 8) . Later, however, the majority opinion expresses
reservations about the scope of potential liability . Id at
(Slip Op. at 13) ("If we held
otherwise, there would be questions regarding which incurable birth defects, left
negligently undiagnosed from prenatal diagnostic procedures, should warrant
recovery ."). In response, I would observe that such concerns should be allayed by
defining the physician's duty in terms of the reasonably prudent patient's expectations .
See Canesi v. Wilson , 730 A.2d 805, 816 (N .J . 1999) .
should permit the Bogan parents to recover for any of the elements of damages listed in
the complaint that are supported by the evidence at trial .
In my view, the majority and concurring opinions suffer from a common analytical
flaw. Perhaps misled by the confusing "wrongful birth" labels that is often attached to
such claims, the justices who today deny the Bogan parents' claim do so under a
skewed analysis that improperly conflates the claimants' injury allegation with their
ultimate claims for damages. The majority and concurring opinions mischaracterize the
Bogan parents' legal injury as Nathan Bogan's very existence 7 when, in fact, the
plaintiffs allege that they suffered legal injury from the physicians' "negligent invasion of
the parental right to decide whether to avoid the birth of a child with congenital
s See Viccaro v. Milunsky, 551
N .E.2d 8, 9 (Mass. 1990) :
These labels [wrongful life/birth/conception/pregnancy] are
not instructive . Any "wrongfulness" lies not in the life, the
birth, the conception, or the pregnancy, but in the negligence
of the physician . The harm, if any, is not the birth itself, but
the effect of the defendant's negligence on the parents'
physical, emotional, and financial well-being resulting from
the denial of the parents of their right . . . to decide whether
to bear a child or whether to bear a child with a genetic or
other defect .
See also Greco v. United States , 893 P .2d 345, 348 n .5 (Nev. 1995) (explaining that
"wrongful life" was originally a play on the statutory wrongful death action and
recognizing the observation that "the net effect of these terms has been to `spawn
confusion' and distort or impair judicial vision ."); Lininger v. Eisenbaum, 764 P .2d 1202,
1204 (Colo . 1988) ("The use of the term[ ] . . . "wrongful birth" more often serves to
obscure the issues than to elucidate them .").
Grubbs v. Barbourville Familv Health Center, P S C , supra note 4 at
(Slip
Op . at 11) ("[W]e are unwilling to equate the loss of an abortion opportunity resulting in
a genetically or congenitally impaired human life, even severely impaired with a
cognizable legal injury ." (emphasis added)); Id. at
(Wintersheimer, J., concurring)
(Slip Op. at 4) ("It is also clear that any claim for wrongful birth should not be recognized
because it requires that life itself constitute some kind of legal injury.") .
defects." 8 Stated otherwise, while both the majority and concurring opinions attempt to
frame the relevant issue before us as whether Nathan Bogan's life can constitute a legal
injury in the context of a prima facie case for medical malpractice, "we need not find that
`life, even life with severe defects,' constitutes a legal injury in order to recognize the . .
claim for relief'9 because "[t]he resulting injury to the plaintiff parents lies in their being
deprived of the opportunity to make an informed decision to terminate the
pregnancy[ .]"' ° The Supreme Court of New Jersey recently discussed the theoretical
basis for a medical malpractice claim in this context and explained that, although one
facet of a plaintiffs compensable damages in such cases may consist of extraordinary
costs associated with the care and education of a child with birth-defect-related
disabilities, those damages are available only because they are the result of a
physician's violation of the patient's right to make an informed procreative decision :
A wrongful birth cause of action is predicated on a
woman's right to determine for herself whether or not to
continue or terminate her pregnancy . Persons "have a right
of their own either to accept or reject a parental relationship,
and the deprivation of that right by the negligent misconduct
of another creates a cause of action in the parents ." The
right protects a distinctly personal interest .
The violation of the interest in self-determination that
undergirds a wrongful birth cause of action consists of the
parents' lost opportunity to make the personal decision of
whether or not to give birth to a child who might have birth
defects . The claim in a wrongful birth action can arise when
a physician fails to provide adequate genetic counseling,
fails to detect a discoverable fetal defect or to inform the
parents thereof, fails to interpret test results properly, or fails
to warn of a child being born with a defect .
8 Smith v. Cote , supra note 1 at 348.
9 Lininger v. Eisenbaum , supra note 6 at 1206 .
10 Garrison v. Medical Center of Delaware, Inc. , 581 A.2d 288, 289 (Del . 1990) .
Because the patient's protectable interest is the personal
right of self-determination, the doctor's duty of disclosure
must be sufficient to enable her to make an informed and
meaningful decision concerning whether or not to continue
the pregnancy .
Compensable damages in a wrongful birth case include
the emotional injury of the parents caused by the deprivation
of "the option to accept or reject a parental relationship with
the child . . . . " These damages also include the special
medical expenses attributable to raising a child with a
congenital impairment . Damages, however, do not
encompass the birth defect or congenital impairment itself."
Once the plaintiffs' injury is properly conceptualized as an invasion of their
reproductive autonomy, the majority's conclusion that "a life cannot be an injury" is not
relevant to an evaluation of the merits of their cause of action . There is "no reason to
hold that as a matter of law those who act negligently in providing [prenatal] care cannot
cause harm"13 because "[s]uch a holding would `leave[ ] a void in the area of recovery
for medical malpractice and dilute[ ] the standard of professional conduct' in a growing
11
Canesi v. Wilson, supra note 5 at 810-811 (citations omitted) . See also Smith
v. Cote , supra note 1 at 348 ("Although it involves an allegation of medical malpractice,
it is not a claim arising from physical injury . It is instead based on a negligent invasion
of the parental right to decide whether to avoid the birth of a child with congenital
defects .").
12
See Bader v. Johnson , 732 N .E .2d 1212 (Ind . 2000):
[In Cowe v. Forum Group, Inc. , 575 N .E.2d 630, 633 (Ind .
1991)] we were unwilling to allow a child plaintiff to proceed
with this cause of action, in part because it involved "a
calculation of damages dependant upon the relevant
benefits of an impaired life as opposed to no life at all . . . a
comparison the law is not equipped to make." Here,
however, the injury is the lost opportunity and ability to
terminate the pregnancy. Failure to allow the [plaintiffs] to
proceed with their claim would "immunize those in the
medical field from liability for their performance in one
particular area of medical practice." (citations omitted) .
13
Smith v. Cote, supra note 1 at 347 .
and increasingly important professional field . "14 In addition, a correct understanding of
the plaintiff's legal injury: (1) exposes as non sequitur any concern about the inability to
demonstrate a causal link between a physician's negligence and the child's
abnormalities; 15
(2)
helps to illustrate the types of damages that are available in such
cases; 16 and (3) demonstrates that the trial court correctly dismissed the Grubbs
parents' claim under KRS 413.140(1)(e) because it was filed more than one year after
the plaintiffs discovered, prior to Carlei's birth, that their physicians had failed to inform
14
Id . (citation omitted) .
15
See Greco v. United States , supra note 6 at 349:
We also reject the . . . argument that [plaintiff mother's]
physicians did not cause any of the injuries that [she] might
have suffered . We note that the mother is not claiming that
her child's defects were caused by her physician's
negligence ; rather, she claims that her physician's
negligence kept her ignorant of those defects and that it was
this negligence which caused her to lose her right to choose
whether to carry the child to term .
See also Canesi v. Wilson , supra note 5 at 818 ("The appropriate proximate cause
question, therefore, is not whether the doctor's negligence caused the fetal defect ; the
congenital harm suffered by the child is expressly not compensable. Rather, the
determination to be made is whether the doctors' inadequate disclosure deprived the
parents of their deeply personal right to decide for themselves whether to give birth to a
child who could possibly be afflicted with a physical abnormality ."); Keel v. Banach, 624
So.2d 1022, 1029 (Ala . 1993) ("The nature of the tort of wrongful birth has nothing to do
with whether a defendant caused the injury or harm to the child, but, rather, with
whether the defendant's negligence was the proximate cause of the parents' being
deprived of the option of . . . making an informed and meaningful decision either to
terminate the pregnancy or to give birth to a potentially defective child .").
16
See Smith v . Cote , supra note 1 at 348 ("When parents are denied the
opportunity to make this decision, important personal interests may be impaired,
including an interest in avoiding the special expenses necessitated by the condition of a
child born with defects . . . .") .
them of Carlei's disabilities in time for them to make an election whether to terminate
the pregnancy . 17
"The law of Kentucky permits '[o]ne injured by the negligence of another . . . to
recover of him full compensation for all damages proximately caused from the
negligence .",8 In their complaint, the Bogan parents sought compensation for : (1) pain
and suffering and permanent scarring that Gretchen Bogan suffered as a result of the
emergency caesarian section required to effect Nathan's delivery ;19 (2) "[p]resent and
future damages relating to the cost of reasonable and necessary medical expenses,
special care, and treatment for Nathan ; (3) emotional suffering "caused by the afflictions
of Nathan" ; and (4) "[I]ost wages and expenses due to the need for one or both of
Gretchen Bogan or Daniel Bogan to help care for Nathan[.]" Today, by misconstruing
the nature of the Bogan parents' claim and holding, in effect, that no parent in the
,7
Although the Grubbs parents did not know the full extent of their damages at
this time, they were aware of their legal injury at the hands of their physicians, and the
statute of limitations began running upon that discovery . KRS 413.140(2) ("[T]he cause
of action shall be deemed to accrue at the time the injury is first discovered or in the
exercise of reasonable care should have been discovered[.]"); Wiseman v. Alliant
Hospitals, Inc . , Ky. 37 S .W.3d 709, 712 (2001) ("'Injury,' . . . is defined as 'the invasion
of any legally protected interest of another.' Thus, injury in the medical malpractice
context refers to the actual wrongdoing, or the malpractice itself. . . . Under the
discovery rule, it is the date if the actual or constructive knowledge of the injury which
triggers the running of the statute of limitations .") .
Smith v. McMillan , Ky., 841 S .W.2d 172, 175 (1992) (quoting Field Packing Co .
v. Denham , 342 S.W.2d 524, 526 (1961)) .
18
19
Although the majority's ultimate holding is that the Bogan parents cannot prove
a prima facie negligence case because they cannot demonstrate a cognizable legal
injury, the majority acknowledges the law of the case implications present in the case at
bar, which arose from the Bogan plaintiffs' appeal from the trial court's final order that
had granted partial summary judgment to the defendants, but denied summary
judgment as to this particular claim for damages. Accordingly, the majority remands the
Bogan appeal to the trial court for "adjudication of their claim for pain and suffering and
permanent scars suffered in connection with the caesarean section delivery," Grubbs v.
Barbourville Family Health Center, P S C , supra note 4 at
(Slip Op. at 15).
Bogans' position can demonstrate an injury necessary to prove a prima facie case for
medical negligence, this Court's holding will prevent future parents in this position from
recovering any tort damages for their physicians' negligence.
I question the relevance of the majority's observation that a divergence of opinion
exists as to the proper measure of damages in such cases. I can find no warrant for the
implicit suggestion that this Court must await nationwide "consensus" before we
evaluate the compensation due to an injured Kentucky plaintiff. In any event, however, I
would observe that in cases such as the one at bar "almost all courts have allowed the
parents to recover against a negligent physician the extraordinary medical, educational,
and other expenses that are associated with and are consequences of the disorder.
,2°
Allowing the recovery of extraordinary expenses associated with the defect avoids the
philosophical objections to weighing quality of life and is consistent with public policy:
The economic burden related solely to the physical defects
of the child is a different matter which is free from the above
objection [that courts cannot "measure life with defects
against no life at all] . These expenses lie within the methods
of proof by which courts are accustomed to determine
awards in personal injury cases. No public policy obstacle
should be interposed to that recovery . It is impossible for us
to justify a policy which at once deprives the parents of
information by which they could elect to terminate the
pregnancy likely to produce a child with a defective body, a
policy which in effect requires that the deficient embryo be
carried to full gestation until the deficient child is born, and
which policy then denies recovery from the tort-feasor of
costs of treating and caring for the defects of the child.
2°
Viccaro v. Milunsky , supra note 6 at 10 (collecting cases). See also James G .
v. Caserta, 332 S .E.2d 872, 882 (W .Va . 1985) (collecting cases and observing that "[i]t
is generally recognized that in a wrongful birth action, parents may recover the
extraordinary costs necessary to treat the birth defect and any additional medical or
educational costs attributable to the birth defect[.]" (emphasis added)) .
21
Jacobs v. Theimer , 519 S.W .2d 846, 849 (Tex . 1975) . See also Smith v. Cote ,
supra note 1 at 349 (explaining that the "extraordinary expenses only" remedy is
premised on expectation damages authorized under contract law and avoids a windfall
-9-
Although different jurisdictions have adopted different approaches to the recovery of
emotional damages in such cases, a reasonable argument can be made that at least
Gretchen Bogan could satisfy Kentucky's physical contact requirement for emotional
damages recovery . Finally, the Bogan parents' lost wages and other damages should
be recoverable even under existing precedent. Thus, I would allow the Bogan
parents' claim to proceed to trial, and would permit them to recover any of the items of
damages named in their complaint .
I will conclude this dissent where I began - by observing that the issue before us
does not "requir[e] our decision of the public policy either for or against abortion . ,24
Regardless of one's personal beliefs concerning the propriety or morality of eugenic
abortion procedures, "[u]nder Roe, prospective parents may have constitutionally
cognizable reasons for avoiding the emotional and pecuniary burdens that attend the
birth of a child suffering from birth defects,"25 and [t]hose who do not wish to undertake
without requiring application of the benefit rule); Lininger v. Eisenbaum , supra note 6 at
1207.
22
Deutsch v. Schein, Ky., 597 S .W.2d 141 (1980). See also Bader v. Johnson ,
supra note 12 at 1222 .
23
See Schork v. Huber, Ky., 648 S.W .2d 861 (1983) (denying recovery for
"damages based on the costs of raising a healthy but unexpected child . . . following an
unsuccessful sterilization procedure," in an appeal from a partial summary judgment
that permitted the plaintiffs to proceed with other damage claims, e.g ., "the mother's
medical expenses, pain and suffering, and loss of earnings in connection with the child's
birth ."); Maggard v. McKelvey, Ky.App., 627 S .W.2d 44, 48 (1982) (holding, in a medical
malpractice case involving an unwanted birth following a negligent vascectomy
procedure, that "the damages are limited to the general and special damages incidental
to the pregnancy and birth, such as, pain and suffering, loss of consortium, medical and
hospital expenses, and loss of wages.").
24
Jacobs v. Theimer , supra note 21 at 848 .
25
Smith v. Cote , supra note 1 at 347.
-10-
the many burdens associated with the birth and continued care of such a child have the
legal right . . . to terminate their pregnancies . ,26 The majority and concurring opinions
do not, of course, dispute the fact that under existing precedent the right of privacy
found in the United States Constitution protects parents' reproductive choices .
Nonetheless, by characterizing a parent's decision to terminate a pregnancy as
elimination of the "unfit" or "defective" and alluding to Nazi-style eugenics programs, the
majority and concurring opinions step outside the judiciary's proper role and
inappropriately volunteer personal opinions regarding the morality of the choices that
the Grubbs and Bogan parents say they would have made if their physicians had fully
informed them. Moreover, the "tyranny of the slippery slope" argument implicitly
referenced in today's concurring opinion 27 is by no means the exclusive province of
those who trumpet the sanctity of life. As a countervailing perspective, I would offer
Margaret Atwood's The Handmaid's Tale 28 as a powerful vision of the dystopia that
could exist in a world where citizens' individual rights of procreative freedom are
completely disregarded . In any event, "[t]he fact that this particular claim involves some
moralistic and social overtones having to do with contraception and childbirth should not
be permitted to become the handmaiden for the destruction of our established notions
of tort law. ,29 Issues like the one at bar are unquestionably difficult, but they demand
26
Greco v. United States , supra note 6 at 349.
27
Grubbs v . Barbourville Family Health Center, P S C , supra note 4 at
(Wintersheimer, J ., concurring) (Slip Op . at 3) ("If logically extended, it could produce a
culture that condones the extermination of the weak by the strong or the more
powerful ." (emphasis added)).
28 M. ATWOOD, THE HANDMAID'S TALE (1986).
29 Beardsley v. Wierdsma , 650 P .2d 288, 293 (Wyo. 1982) (Rose, C .J .,
concurring specially) .
careful analysis within the framework of the law. Personal ideology, which only adds to
the difficulty by breeding additional and unnecessary divisiveness at the expense of the
legal questions before us, simply has no place in this analysis .
Stumbo, J ., joins.
,Sixprme d1ourf of ~nfurkg
2001-SC-0563-DG
AND
2001-SC-0961-DG
CARLEI NACOLE GRUBBS BY AND
THROUGH HER NEXT FRIEND,
KIMBERLY SUZANE GRUBBS, ET AL .
MOVANTS/
CROSS RESPONDENTS
ON APPEAL FROM THE COURT OF APPEALS
1999-CA-0468 and 1999-CA-0563
KNOX CIRCUIT COURT NO . 97-CI-00277
BARBOURVILLE FAMILY HEALTH
CENTER, P .S.C., ET AL .
RESPONDENTS/
CROSS MOVANTS
AND
2001-SC-0571-DG
AND
2001-SC-0959-DG
NATHAN ROBERT BOGAN BY AND
THROUGH HIS NEXT FRIENDS,
GRETCHEN BOGAN AND DANIEL
BOGAN, ET AL .
V.
MOVANTS/
CROSS RESPONDENTS
ON APPEAL FROM THE COURT OF APPEALS
1999-CA-0212
PIKE CIRCUIT COURT NO . 94-CI-00434
ALTMAN & MCGUIRE, P .S .C., ET AL.
RESPONDENTS/
CROSS MOVANTS
ORDER
The opinion by Chief Justice Lambert in the above-styled case, rendered
August 21, 2003, is hereby amended by the substitution of a new page 17. This
amendment does not change the holding of the opinion .
ENTERED: August 27, 2003.
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