Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


August 31, 1990.


The opinion of the court was delivered by

This is a medical malpractice wrongful birth action brought in the United States District Court for the District of Kansas by John and Nicole Arche against the United States of America, Department of the Army. Chief Judge Earl E. O'Connor of the United States District Court has certified the following questions for resolution by this court pursuant to the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq.: 1. Does Kansas law recognize a cause of action for the wrongful birth of a permanently handicapped child?

2. If Kansas does recognize such a cause of action, what is the extent of damages which may be recovered upon proper proof?

[247 Kan. 277]


  Chief Judge O'Connor rejected defendant's request that the issue of the appropriate standard of care be certified to this court. The facts of the case are thus irrelevant and will not be noted here. We limit our opinion to a determination of the two questions certified, neither of which has been resolved in our prior cases. We emphasize that in answering these questions we express no opinion as to whether plaintiffs should ultimately prevail in this action.

  A discussion of three types of related malpractice torts is helpful in our analysis of the certified questions. These torts — wrongful pregnancy, wrongful life, and wrongful birth — have evolved because of advances in technology and the recognition of a woman's right to prevent conception or to terminate a pregnancy. See generally Speck v. Finegold, 497 Pa. 77, 439 A.2d 110 (1981); Comment, "Wrongful Life": The Right Not to be Born, 54 Tul. L. Rev. 480 (1980).

  In the tort of wrongful pregnancy, parents who have taken medical steps to prevent pregnancy bring suit for damages caused by a child nevertheless being born, even if that child is born healthy. See Bruggeman v. Schimke, 239 Kan. 245, 248, 718 P.2d 635 (1986). The majority of states addressing the question, including Kansas, have recognized a cause of action for limited damages for wrongful pregnancy. See Johnston v. Elkins, 241 Kan. 407, 412, 736 P.2d 935 (1987), in which we recognized a cause of action for an unsuccessful vasectomy resulting in the conception and birth of a healthy child. However, we have consistently refused to allow damages beyond those suffered prior to and at the birth of the child. Johnston, 241 Kan. at 413. In refusing to allow damages for the costs of rearing a normal and healthy child in Byrd v. Wesley Med. Center, 237 Kan. 215, 699 P.2d 459 (1985), we noted:
"[W]e are not concerned here with an unsuccessful sterilization proceeding followed by the birth of a mentally retarded or physically handicapped child. Our concern here is only with items of damages claimed when it is alleged that a sterilization procedure was negligently performed, and thereafter, a normal, healthy child was born to the `sterilized' parent."
  The tort of wrongful life constitutes an action brought by an impaired child, whereby the child alleges that, but for the defendant's negligent advice or treatment, the child would not have

[247 Kan. 278]

      been born. The impairment is not caused by the defendant; the only negligence is in not determining or informing the parents of the defect before birth. Bruggeman v. Schimke, 239 Kan. at 248. We have refused to recognize a tort of wrongful life. Bruggeman, 239 Kan. at 254. The majority of states addressing the question have refused to recognize the cause of action. See Bruggeman, 239 Kan. at 249. There is no legal right not to be born, and allowing an action for being born would create a new tort, rather than applying established tort principles to technological advances.

  The tort of wrongful birth differs from the tort of wrongful life in that the suit is brought by the parents, who claim they would have avoided conception or terminated the pregnancy had they been properly advised of the risks or existence of birth defects to the potential child. See Bruggeman, 239 Kan. at 248. See generally Annot., Tort Liability for Wrongfully Causing One to be Born, 83 A.L.R.3d 15. Whether a cause of action for wrongful birth will be recognized in the case of a child born with defects is a question of first impression in Kansas.

  Twenty courts> in other jurisdictions have recognized the action. State court opinions recognizing the action include: Lininger v. Eisenbaum, 764 P.2d 1202 (Colo. 1988); Haymon v. Wilkerson, 535 A.2d 880 (D.C. 1987); Garrison by Garrison v. Medical Center of Delaware, Inc., 571 A.2d 786 (Del. 1989) (unpublished order of the court, text of order in Westlaw); Fassoulas v. Ramey, 450 So.2d 822 (Fla. 1984); Blake v. Cruz, 108 Idaho 253, 698 P.2d 315 (1984) (superseded by Idaho Code §§ 5-310 and 5-311 [1990]); Goldberg by and through Goldberg v. Ruskin, 128 Ill. App.3d 1029, 471 N.E.2d 530 (1984), aff'd 113 Ill.2d 482, 499 N.E.2d 406 (1986); Pitre v. Opelousas General Hosp., 530 So.2d 1151 (La. 1988); Viccara v. Milunsky, 406 Mass. 777, 551 N.E.2d 8 (1990); Proffitt v. Bartolo, 162 Mich. App. 35, 412 N.W.2d 232 (1987); Smith v. Cote, 128 N.H. 231, 515 A.2d 341 (1986); Schroeder v. Perkel, 87 N.J. 53, 432 A.2d 834 (1981); Bani-Esraili v. Lerman, 69 N.Y.2d 807, 513 N.Y.S.2d 382, 505 N.E.2d 947 (1987); Speck v. Finegold, 497 Pa. 77 (superseded by 42 Pa. Cons. Stat. Ann. § 8305 [Purdon 1990 Supp.]); Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975); Naccash v. Burger, 223 Va. 406, 290 S.E.2d 825 (1982); Harbeson v. Parke-Davis, Inc.,

[247 Kan. 279]

      98 Wn.2d 460, 656 P.2d 483 (1983); James G. v. Caserta, ___ W. Va. ___, 332 S.E.2d 872 (1985); Dumer v. St. Michael's Hospital, 69 Wis.2d 766, 233 N.W.2d 372 (1975). Federal court opinions recognizing the action include: Phillips v. U.S., 575 F. Supp. 1309 (D.S.C. 1983) (applying South Carolina law); Robak v. U.S., 658 F.2d 471 (7th Cir. 1981) (applying Alabama law).

  Arizona, California, and Utah have sometimes been cited as states recognizing the action, but the issue has not been clearly presented and determined in those states. See Walker by Pizano v. Mart, 164 Ariz. 37, 790 P.2d 735 (1990); Andalon v. Superior Court, 162 Cal.App.3d 600, 208 Cal.Rptr. 899 (1984); Payne by and through Payne v. Myers, 743 P.2d 186 (Utah 1987) (see Utah Code Ann. § 78-11-23 et seq. [1987]).

  Defendants cite three decisions in which courts> have refused to recognize wrongful birth actions: Wilson v. Kuenzi, 751 S.W.2d 741 (Mo.), cert. denied 109 S.Ct. 229 (1988); Azzolino v. Dingfelder, 315 N.C. 103, 337 S.E.2d 528 (1985), cert. denied 479 U.S. 835 (1986), reh. denied 319 N.C. 227, 353 S.E.2d 401 (1987); and Spencer by and through Spencer v. Seikel, 742 P.2d 1126 (Okla. 1987).

  Wilson, 751 S.W.2d 741, has been recently distinguished by the Missouri Supreme Court in Shelton v. St. Anthony's Medical Center, 781 S.W.2d 48, 50 (Mo. 1989). In Shelton the court allowed a cause of action because the plaintiff did not merely state that she would have terminated the pregnancy (a claim barred by statute), but that she suffered emotional distress from the defendants' failure to properly interpret ultrasound tests and advise her that her fetus was not developing normally.

  Azzolino, 315 N.C. 103, was distinguished in Gallagher v. Duke University, 852 F.2d 773, 776-78 (4th Cir. 1988), where the federal court, applying North Carolina law, allowed a cause of action to a woman who conceived and gave birth to a genetically impaired child after being incorrectly informed by defendants that her first child's impairments were not genetically caused. In Gallagher, the court distinguished the plaintiff's decision to conceive based on negligent advice from the plaintiff's claim in Azzolino that, after conception, she should have been advised of the availability of amniocentesis.

[247 Kan. 280]


  Spencer, 742 P.2d 1126, is distinguishable from other wrongful birth cases in that the physician in that case fully informed the mother that tests showed the fetus was suffering from hydrocephalus and fully informed the mother of the effects of that impairment. The mother's only claim was that the physician did not inform her of the option of abortion. None of the cited cases recognizing the action of wrongful birth rely on this omission; rather, the negligence is in not discovering the impairment.

  We note that the Minnesota Supreme Court has upheld the constitutionality of a statute prohibiting wrongful birth claims. Hickman v. Group Health Plan, Inc., 396 N.W.2d 10 (Minn. 1986). A bill prohibiting wrongful birth or wrongful life actions was introduced in Kansas in 1983, but was not passed out of the Senate Judiciary Commitee. 1983 Senate Bill 258. Note Damages: Recovery of Damages in Actions for Wrongful Birth, Wrongful Life and Wrongful Conception, 23 Washburn L.J. 309 (1984).

  Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967), was the first case in the United States to address the question of whether a cause of action for wrongful birth would be judicially recognized. The New Jersey Supreme Court refused to recognize such a cause of action, partly because of its finding that abortion violated public policy and partly because abortion was then illegal under state statute except to save the mother's life.

  During the next twelve years, two major changes occurred: The ability to detect birth defects in utero greatly increased, and the United States Supreme Court recognized a woman's right to obtain an abortion. Roe v. Wade, 410 U.S. 113, 35 L.Ed.2d 147, 93 S.Ct. 705, reh. denied 410 U.S. 959 (1973).

  These changes caused the New Jersey Supreme Court to reject its former reasoning and recognize a cause of action for wrongful birth in Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979). The court held that Roe v. Wade, 410 U.S. 113, and Doe v. Bolton, 410 U.S. 179, 35 L.Ed.2d 201, 93 S.Ct. 739 (1973), had established that public policy now supported, rather than controverted, the proposition that a woman could not be denied a meaningful opportunity to make the decision to have an abortion. 80 N.J. at 431-32. In Berman, the defendant physicians did not inform the plaintiffs of available prenatal testing procedures which would have shown that Mrs. Berman was carrying a fetus with

[247 Kan. 281]

      Down's syndrome. The court disallowed a cause of action for wrongful life, but allowed the cause of action for wrongful birth, acknowledging that causation of damages might be found between the defendants' failure to inform and the denial of a woman's constitutional right to choose whether to terminate her pregnancy.

  A plaintiff must prove three elements to prevail in a medical malpractice action in this state: "(1) that a duty was owed by the physician to the patient; (2) that the duty was breached; and (3) that a causal connection existed between the breached duty and the injury sustained ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.