Jones v. Malinowski

MURPHY, Chief Judge. We granted certiorari to consider a single issue of first impression in this State raised in the joint petition of the parties, namely: “Where a negligently performed sterilization resulted in the birth of a healthy child, did the trial court err in its charge that the jury could award damages for the expenses of raising the unplanned child during minority reduced by the value of the benefits conferred upon the parents by having the child?” 1 ²⁶⁰ I. . The record discloses that Leon and Juanita Malinowski were married in 1971 and had three children, born in 1973, 1975 and 1978. Mrs. Malinowski’s first pregnancy resulted in a breech birth; the second child was born with a brain disease and the third child nearly died at birth and suffers from heart disease.

The Malinowskis are of limited financial means. He is employed as a drafting technician. Mrs. Malinowski, prior to the birth of her first child, was employed as a cryptology assistant by the federal government. She worked only sporadically after the birth of her first child, but planned to work full time after her third child reached school age.

Her potential earnings would have increased the Malinowskis’ annual income by approximately sixty percent. After the birth of their third child, the Malinowskis decided not to have any more children. Economic factors motivated their decision; they determined that they could not afford to support another child. In addition, Mrs. Malinowski wished to avoid the possible recurrence of her prior traumatic experiences with pregnancy and child birth.

Consequently, she sought to be sterilized by Dr. Thomas W. Jones. The Malinowskis advised Dr. Jones of their reasons for wanting to prevent future pregnancies. On June 2, 1978, Dr. Jones performed a sterilization operation upon Mrs. Malinowski, who was then twenty-five years old. The operation, known medically as a bipolar tubal laparoscopy, consisted of blocking both Fallopian tubes by cauterization.

Dr. Jones misidentified the left tube and cauterized the wrong structure, leaving the left tube intact. As a result, the sterilization operation proved ineffective. Subsequently, Mrs. Malinowski again became pregnant and on August 16, 1979, gave birth to the couple’s fourth child, Juanita. The child was born normal, is healthy and is loved by her parents.

Juanita’s birth, however, placed a greater financial burden on the Malinowskis in the rearing of another child, i.e., added expenses associated with the costs of ²⁶¹ housing, food, transportation, clothing, medical care and education. The Malinowskis sued Dr. Jones in the Circuit Court for Baltimore County in tort for negligent sterilization. At the trial, Dr. Thomas Espenshade, an economist demographer appearing on behalf of the Malinowskis, testified that based on Mr. Malinowski’s earning history, the family’s standard of living, and other factors, it would cost the couple an estimated $53,702 in 1981 dollars to raise Juanita from birth to majority. The witness estimated that it would cost $85,053 to rear Juanita if Mrs. Malinowski were employed.

In instructing the jury on damages, the court (Sfekas, J.) said that “persons have the right to limit the size of their family for whatever reason, be it for health or socio-economic reasons, and limiting the size of the family may be done by various means which include sterilization.” The court charged the jury that it could consider, as an element of damages for negligent sterilization, “the costs of raising the unplanned child from birth to the age of majority, which is eighteen.” 2 It also instructed the jury to consider in mitigation of damages “the value conferred upon [the Malinowskis] in having a healthy child, such as the child’s aid, comfort and society during the parents’ life expectancy.” The jury was further instructed that in computing damages, if any, it was not to consider that the Malinowskis “might have aborted the child or placed the child out for adoption [since] ... as a matter of personal conscience and choice parents may wish to keep an unplanned child.” ²⁶² After finding that Dr. Jones was negligent, the jury awarded $70,000 in damages to the Malinowskis. It cannot be ascertained from the jury’s general lump sum damage award whether it included any money for rearing costs, or, if it did, the extent to which, if any, it took into account the benefits conferred upon the Malinowskis by having a healthy and normal child.

II

Before us Dr. Jones argues that the trial court erred in instructing the jury that it could consider rearing costs as an element of damages. He contends that the creation of a healthy normal child does not constitute a legally cognizable injury giving rise to damages for child rearing costs under the law of Maryland. This is so, Dr. Jones maintains, because the benefits of having a normal child outweigh the costs of rearing the child to majority, both as a matter of law and of the public policy of the State, as expressed in the Wrongful Death Act, Maryland Code (1980 Repl.Vol.), § 3-901 — 904 of the Courts and Judicial Proceedings Article. This statute, according to Dr. Jones, is premised on the notion that the deprivation of life due to another’s negligence is a compensable wrong; that in light of this established policy, the creation of life cannot constitute a compensable wrong; and that, consequently, the Wrongful Death Act precludes the recognition of child rearing costs as damages, absent a legislative act authorizing their recovery.

Dr. Jones further argues that rearing costs are too speculative and unascertainable in any event to constitute the basis of an award for damages. He claims that the overwhelming majority of courts which have considered whether rearing costs are recoverable in a negligent sterilization case support his position. He urges that damages must be limited to the costs of the second sterilization procedure, which Mrs. Malinowski subsequently underwent, together with pain and suffering associated with that operation. ²⁶³ III. That there is a cause of action in tort based upon traditional medical malpractice principles for negligence in the performance of a sterilization procedure is well accepted.

See Annot., Tort Liability For Wrongfully Causing One To Be Born, 83 A.L.R.3d 15 (1978). Maryland law is in accord. See Sard v. Hardy, 281 Md. 432 , 379 A.2d 1014 (1977). The cases are divided, however, as to whether the cause of action encompasses damages for the costs of rearing the unplanned but healthy child to majority.

Most jurisdictions deny recovery for these costs. See Boone v. Mullendore, 416 So.2d 718 (Ala.1982); Wilbur v. Kerr, 275 Ark. 239 , 628 S.W.2d 568 (1982); Coleman v. Garrison, 327 A.2d 757 (Del.Super.Ct. 1974), aff’d 349 A.2d 8 (Del.1975); Fassoulas v. Ramey,-So.2d-(Fla.), decided February 18, 1984; Public Health Trust v. Brown, 388 So.2d 1084 (Fla.Dist.Ct.App.1980); Cockrum v. Baumgartner, 95 Ill.2d 193 , 69 Ill.Dec. 168 , 447 N.E.2d 385 , cert. denied, - U.S. -, 104 S.Ct. 149 , 78 L.Ed.2d 139 (1983); Schork v. Huber, 648 S.W.2d 861 (Ky. 1983); Kingsbury v. Smith, 122 N.H. 237 , 442 A.2d 1003 (1982); P. v. Portadin, 179 N.J.Super. 465 , 432 A.2d 556 (1981); Sala v. Tomlinson, 73 A.D.2d 724 , 422 N.Y.S.2d 506 (1979) ; Sorkin v. Lee, 78 A.D.2d 180 , 434 N.Y.S.2d 300 (1980) ; Mason v. Western Pennsylvania Hospital, 499 Pa. 484 , 453 A.2d 974 (1982); Hickman v. Myers, 632 S.W.2d 869 (Tex.App.1982); Terrell v. Garcia, 496 S.W.2d 124 (Tex.Civ. App.1973); Beardsley v. Wierdsma, 650 P.2d 288 (Wyo.1982); McNeal v. United States, 689 F.2d 1200 (4th Cir.1982) (dicta applying Virginia law); White v. United States, 510 F.Supp. 146 (D.Kan.1981) (applying Georgia law). These cases, recognizing the paramount importance of the family to society, and the need to develop and preserve the family relationship, conclude in one form or another that public policy considerations dictate that the birth of a healthy child is always a benefit to the parents which, as a matter of law, outweighs concomitant financial child rearing burdens imposed upon the parents by the unplanned child’s birth.

This view was recently expressed by the Supreme ²⁶⁴ Court of Illinois in Cockrum v. Baumgartner, 95 Ill.2d 193 , 69 Ill.Dec. 168 , . 447 N.E.2d 385 (1983). In declining to apply the traditional tort concept that a tortfeasor is liable for all costs resulting from the tortious misconduct, the court there observed, as to rearing costs in negligent sterilization cases, that “[r]easonableness is an indispensable quality in the administration of justice.” 69 Ill.Dec. at 173 , 447 N.E.2d at 390 . It said that to consider the birth of a healthy child as an injury to the parents “offends fundamental values attached to human life.” Id. at 171, 447 N.E.2d at 388 . It adopted the view that a parent cannot be said to have been damaged by the birth and rearing of a normal, healthy child.

It subscribed to the position articulated by the Supreme Court of Wyoming in Beardsley v. Wierdsma, supra, 650 P.2d at 293 , that “[t]he bond of affection between child and parent, the pride in a child’s achievement, and the comfort, counsel and society of a child are incalculable benefits, which should not be measured by some misplaced attempt to put a specific dollar value on a child’s life.” The Illinois court concluded: “In a proper hierarchy of values the benefit of life should not be outweighed by the expense of supporting it. Respect for life and the rights proceeding from it are at the heart of our legal system and, broader still, our civilization.” 69 Ill.Dec. at 172 , 447 N.E.2d at 389 . Other courts which deny recovery for child rearing costs in negligent sterilization cases have declined to require the negligent physician to pay such costs, concluding that to do so would impose an unreasonable burden upon the physician, as it would permit the parents to enjoy all the benefits of parenthood while shifting the entire financial burden to the tortfeasor — a burden out of proportion to the physician’s culpability. See, eg., Public Health Trust v. Brown; Kingsbury v. Smith; Beardsley v. Wierdsma; White v. United States, all supra.

See also Berman v. Allan, 80 N.J. 421 , 404 A.2d 8 (1979). Some courts,'in denying recovery for rearing costs, have expressed concern over psychological harm done to the child upon learning that her existence was unwanted ²⁶⁵ and that her parents sued to have the physician provide for her support. E.g., Boone v. Mullendore and Wilbur v. Kerr, both supra. Still other courts have held that child rearing costs in negligent sterilization cases are too speculative and contingent to constitute the basis of an award for damages.

E.g., Coleman v. Garrison; Schork v. Huber; Sorkin v. Lee; Terrell v. Garcia, all supra. A substantial minority of jurisdictions have permitted parents to recover damages for rearing costs in negligent sterilization cases, offset, however, by the benefits the parents derive from the parent-child relationship. See University of Ariz. v. Superior Court, 136 Ariz. 579 , 667 P.2d 1294 (1983); Custodio v. Bauer, 251 Cal.App.2d 303 , 59 Cal.Rptr. 463 (1967); Stills v. Gratton, 55 Cal.App.3d 698 , 127 Cal. Rptr. 652 (1976); Ochs v. Borrelli, 187 Conn. 253 , 445 A.2d 883 (1982); Troppi v. Scarf, 31 Mich.App. 240 , 187 N.W.2d 511 (1971); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977); Rivera v. State, 94 Misc.2d 157 , 404 N.Y.S.2d 950 (Ct.Cl.1978); Bowman v. Davis, 48 Ohio St.2d 41 , 356 N.E.2d 496 (1976); Hartke v. McKelway, 707 F.2d 1544 (D.C.Cir.1983), cert. den., - U.S. -, 104 S.Ct. 425 , 78 L.Ed.2d 360 (applying District of Columbia law).

See also Robak v. United States, 658 F.2d 471 (7th Cir.1981) (applying Alabama law) but see Boone v. Mullendore, 416 So.2d 718 (Ala.1982), reaching the opposite result. See also Annot., Medical Malpractice, and Measure And Element of Damages, In Connection With Sterilization Or Birth Control Procedures, 27 A.L.R.3d 906 (1969). These cases have considered but rejected the various reasons given by those courts which deny recovery of child rearing costs. 3 University of Ariz. v. Superior Court, supra, ²⁶⁶ is the most recent case enunciating the minority view. There, the Arizona Supreme Court, applying fundamental tort and damage principles, concluded that the parents of a healthy but unplanned child sustained some damage from the unwanted procreation resulting from the negligence of the operating physician.

The court recognized that in some cases the benefits which the parents will receive from having a normal child will outweigh any loss which the parents might incur in rearing and educating the child. But, the court said, “we think it unrealistic that [that] is true in all cases ... [because there are] many situations in which for either financial or emotional reasons, or both, the parents are simply unable to handle another child and where it would be obvious that from either an economic or emotional perspective — or both — substantial damage has occurred.” 667 P.2d at 1298 . The court said that while it shared the belief that in many cases the intangible and invaluable benefits of parenthood will outweigh the mere monetary burdens imposed upon the parents, it could not decide cases based on that sentiment alone; rather, it said that the court was not at liberty “to impose our views of morality by deciding cases on the basis of personal emotion and sentiment.” Id. The court’s function, it said, was “to leave the emotion and sentiment to others and attempt to examine the problem with logic and by application of the relevant principles of law.” Id. at 1299.

In so doing, the court stated that “in most cases the family can and will adjust to the birth of the child, even though they-had not desired to have it, [but] ... there are cases where the birth of an unplanned child can cause serious emotional or economic problems to the parents.” Id. In rejecting the majority rule that rearing costs can never be a compensable element of damage in a negligent sterilization case, the Arizona court determined that the cost of rearing the child is a foreseeable consequence of the physician’s negligence and a compensable element of the damages formulation. It held that the preferable rule was to permit the trier of fact “to consider both pecuniary and non-pecuniary elements of damage ²⁶⁷ which pertain to the rearing and education of the child . . . [offset by] the pecuniary and non-pecuniary benefits which the parents will receive from the parental relationship with the child.” Id. The court said: “A jury verdict based on knowledge of all relevant circumstances is a better reflection of whether real damage exists in each case than can be obtained from use of any abstract, iron-clad rule which some courts would adopt and apply regardless of the circumstances of the particular case.” In determining the extent of injury suffered by the parents as a result of the negligent sterilization, the court said that the reason given by the parents for seeking the procedure was the most relevant consideration for ascertaining whether they were actually damaged by the subsequent birth, i.e., was the sterilization sought for economic, genetic or therapeutic reasons.

Where, for example, the parents sought sterilization to avoid giving birth to a genetically defective child, and a normal child was born, the court indicated that the jury could determine that the birth was a blessing resulting in no economic injury to the parents. Finally, the court said that its decision was based on uniform rules of damage applicable to all tort cases, viz, that a wrongdoer is accountable for all damages which may have been caused by the tortious misconduct and all costs which the victim may sustain as a result of the tort. The Supreme Court of Connecticut, expressing similar views in Ochs v. Borrelli, 187 Conn. 253 , 445 A.2d 883 (1982), observed that while “raising a child from birth to maturity is a costly enterprise, and hence injurious, ... it is an experience that abundantly recompenses most parents with intangible rewards.” 445 A.2d at 885 . Nevertheless, the court said it did not affront public policy to recognize these costs and there is “no inconsistency in our view that parental pleasure softens but does not eradicate economic reality.” Id. at 885-86.

The court thus rejected the public policy argument that the birth of a normal child is always a blessing to its parents which, as a matter of law, totally ²⁶⁸