ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
EDWARD L. MURPHY, JR. JOHN C. GRIMM
HEIDI K. ELLISON Grimm & Grimm
Miller, Carson, Boxberger & Murphy, LLP Auburn, Indiana
Fort Wayne, Indiana
COURT OF APPEALS OF INDIANA
KENNETH R. CHAFFEE, M.D., )
vs. ) No. 17A03-0011-CV-418
HEATHER L. SESLAR, )
APPEAL FROM THE DEKALB CIRCUIT COURT
The Honorable Paul R. Cherry, Judge
Cause No. 17C01-0006-CT-00015
July 13, 2001
OPINION - FOR PUBLICATION
Kenneth R. Chaffee, M.D., appeals the trial court's preliminary determination in favor of
Heather L. Seslar. We affirm.
Dr. Chaffee raises the following consolidated and restated issue for our review: whether
the costs involved in raising a normal, healthy child conceived subsequent to an
allegedly negligent sterilization procedure are recoverable.
Facts and Procedural History
The facts reveal that on March 26, 1998, Dr. Chaffee performed an abdominal
bilateral partial salpingectomy upon Seslar's request for the purpose of rendering her sterile.
Thereafter, Seslar became pregnant and gave birth to a healthy child on
August 5, 1999. On March 15, 2000, Seslar filed a proposed complaint
for medical malpractice with the Indiana Department of Insurance as prescribed by the
Medical Malpractice Act
See footnote alleging negligence and breach of contract on the part of
Dr. Chaffee as a result of his performance of the unsuccessful sterilization procedure.
Prior to the review panel issuing its written opinion, Dr. Chaffee on June
16, 2000, filed with the Dekalb Circuit Court a Motion for Preliminary Determination
pursuant to Indiana Code section 34-18-11-1. Dr. Chaffee requested that the trial
court as a matter of law determine that a plaintiff could not recover
in a medical malpractice suit child-rearing expenses from a healthcare provider on the
basis of negligent performance of a sterilization procedure.See footnote Following a hearing, the
trial court on October 24, 2000, entered an order which provides in pertinent
This Court, . . . hereby rules that [Seslar] may properly seek recovery
of monetary damages for future costs of rearing her child including, but not
limited to, medical costs and educational costs.
R. 60. This interlocutory appeal ensued.
Discussion and Decision
Dr. Chaffee contends that child-rearing damages are not recoverable for the subsequent birth
of a normal, healthy child as a result of the negligent performance of
a sterilization procedure. We disagree.
I. Standard of Review
Here, Dr. Chaffee filed a Motion for Preliminary Determination with the trial court.
This is a procedure unique to Medical Malpractice Act claims that permits
the trial court to assume jurisdiction over threshold issues before the Medical Review
Panel has acted. See Ind. Code § 34-18-11-1. When an issue
presented on appeal is a pure question of law, we review the matter
de novo. State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind. 1997).
"A pure question of law is one that requires neither reference to extrinsic
evidence, the drawing of inferences therefrom, nor the consideration of credibility questions for
its resolution by a court." Bader v. Johnson, 732 N.E.2d 1212, 1216
(Ind. 2000). Because we are confronted with a pure question of law,
our standard of review is de novo.
II. Right Not to Procreate
We note initially that the United States Constitution protects the right of privacy
including one's rights to family planning and birth control. The United States
Supreme Court has provided that the right to choose not to have a
child is at the "very heart" of a group of constitutionally protected choices,
including the decisions relating to marriage, family relationships, child rearing and education.
Carey v. Population Servs. Int'l, 431 U.S. 678, 685 (1977). The choice
whether to bear or begat a child is central to these Fourteenth Amendment
privacy rights. Id. The Court has stated that "if the right
of privacy means anything, it is the right of the individual, married or
single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting
a person as the decision of whether to bear or begat a child."
Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
The United States Supreme Court has reversed convictions based upon state
statutes making it a crime to use any device to prevent contraception.
See Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965) (reversing conviction of executive
director and medical director of Planned Parenthood League as accessories for providing family
planning information to married persons). The court has also held that restrictions
which impede access to contraceptives unacceptably impair the right to privacy because such
access is "essential to the exercise" of constitutionally protected reproductive rights. Carey,
431 U.S. at 685, 688-89. In addition, the Court has provided that
the right of privacy "is broad enough to encompass a woman's decision whether
or not to terminate her pregnancy." Roe v. Wade, 410 U.S. 113,
153 (1973). Therefore, individuals have a constitutional right to limit the size
of their family, regardless of whether that decision is based upon a lifestyle
choice, financial, health, or social concern.
III. Claim of "Wrongful Pregnancy"
A. Cause of Action
See footnote is a label attached to a cause of action alleging that
but for a third party's negligence, the plaintiff-parents would not have conceived or
given birth to an unplanned yet healthy child. "An action for 'wrongful
conception or pregnancy' refers to a claim for damages sustained by the parents
of an unexpected child alleging that the conception of the child resulted from
negligent sterilization procedures or a defective contraceptive product."
Cowe by Cowe v.
Forum Group, Inc., 575 N.E.2d 630, 633 (Ind. 1991). The claim itself
appears to be the offspring of earlier existing claims of "wrongful birth" and
See footnote Claims for "wrongful pregnancy" typically are predicated on the unsuccessful
tubal ligation or cauterization, unsuccessful vasectomy, the failure to properly diagnose a pregnancy
or perform an abortion, negligence in the insertion or removal of an IUD
or dispensing contraception prescriptions, or the failure of a contraceptive pill or condom.
The damages sought in a "wrongful pregnancy" action are those owing to
the parents, not the unplanned healthy child, due to the unsuccessful medical procedures
and the resulting birth of a child.
Garrison v. Foy, 486 N.E.2d
5, 7 (Ind. Ct. App. 1985).
Historically, courts denied recovery for claims of "wrongful pregnancy" based upon the "blessings
doctrine," which provides that the birth of a human being is not a
harm but rather a blessing. See Sherlock v. Stillwater Clinic, 260 N.W.2d
169, 173 (Minn. 1977); see also Christensen v. Thornby, 255 N.W. 620, 621
(Minn. 1934). However, the principle slowly emerged "that the birth of a
child may be something less than [a] 'blessed event.'" Custodio v. Bauer,
251 Cal. App.2d 303, 59 Cal. Rptr. 463, 475 (Cal. Ct. App. 1967).
The current extensive use of birth control and sterilization procedures indicated that
many individuals do not consider parenthood a "net positive circumstance." See Burke
v. Rivo, 551 N.E.2d 1, 4 (Mass. 1990). More than a decade ago,
this court in Garrison v. Foy recognized that the cause of action labeled
"wrongful pregnancy" existed in Indiana. Although this cause of action still exists
in Indiana, we will no longer utilize the label "wrongful pregnancy" and will
treat such a claim as any other medical malpractice action, as instructed by
Bader v. Johnson.
Recently, the Indiana Supreme Court in Bader v. Johnson was confronted with the
issue of whether a cause of action labeled "wrongful birth" existed in Indiana.
In Bader, father and mother's first child was born with congenital birth
defects. 732 N.E.2d at 1215. When mother became pregnant for a
second time, the parents sought consultation with healthcare providers in order to ensure
that the child was healthy. Id. Testing showed that the pregnancy
was normal and the parent's second child was born healthy. Id.
When mother became pregnant for the third time, the parents again sought consultation
with the healthcare providers. Id. The healthcare providers administered an untrasound
which revealed that the fetus had a larger than expected cavity within the
brain and an unusual head shape. Id. Due to office error,
follow-up testing was not performed in a timely manner and the child was
born with multiple birth defects and as a result died four months later.
Consequently, the parents filed a proposed complaint with the Indiana Department of Insurance
which later determined that the healthcare providers failed to meet the applicable standard
of care. Id. Thereafter, parents filed suit against the healthcare providers
alleging that the healthcare providers' failure to inform deprived them of the opportunity
to terminate the pregnancy. Id. Subsequently, the healthcare providers filed a
motion for summary judgment, which the trial court denied. We affirmed the
judgment of the trial court. Bader v. Johnson, 675 N.E.2d 1119 (Ind.
Ct. App. 1997).
The Indiana Supreme Court stated that the injury to the parents was one
of lost opportunity and ability to terminate the pregnancy and that such a
cause of action existed in Indiana. Bader, 732 N.E.2d at 1219-20.
However, the court refused to characterize the action as "wrongful birth," explaining that
"[l]abeling the [parents'] cause of action as 'wrongful birth' adds nothing to the
analysis, inspires confusion, and implies that the court has adopted a new tort."
Id. at 1216. Thus, our supreme court treated a "wrongful birth"
action like any other medical malpractice case, refusing to give it special status
or imply it was recognizing a new tort. See Id. We
will follow our supreme court's lead with regard to a cause of action
labeled "wrongful pregnancy." Although many jurisdictions have found this label useful,
we believe that the phrase "wrongful pregnancy," like the phrase "wrongful birth," does
nothing but creates confusion and implies that Indiana recognizes a prenatal tort which
is separate and distinct from other medical malpractice causes of action. Therefore,
we will treat Seslar's claim as any other medical malpractice case and will
disregard the label or term "wrongful pregnancy."
Medical malpractice actions are no different from other kinds of negligence actions regarding
the elements which must be proven by a plaintiff.
Id. at 1216-17.
The plaintiff must prove: (1) duty owed to plaintiff by defendant; (2)
breach of duty by allowing conduct to fall below the applicable standard of
care; and (3) compensable injury proximately caused by defendant's breach of duty.
Oelling v. Rao, 593 N.E.2d 189, 190 (Ind. 1992). If the plaintiff
proves the elements of negligence, she is entitled to all damages naturally flowing
from the healthcare provider's breach of duty. Bader, 732 N.E.2d at 1221.
Although Dr. Chaffee concedes that Seslar is entitled to a cause of
action for the negligent performance of a sterilization procedure, he challenges Seslar's assertion
that a successful plaintiff may recover child-rearing expenses for such medical malpractice.
B. Damages Available
It is well established that damages are awarded to fairly and adequately compensate
an injured party for his or her loss, and the proper measure of
damages must be flexible enough to fit the circumstances. Decatur County AG-Servs.,
Inc. v. Young, 426 N.E.2d 644, 646 (Ind. 1981). In tort actions,
typically all damages directly related to the wrong arising without an intervening agency
are recoverable. Erie Ins. Co. v. Hickman by Smith, 622 N.E.2d 515,
519 (Ind. 1993). In negligence actions, the injured party is entitled to
damages proximately caused by the tortfeasor's breach of duty. Peak v. Campbell,
578 N.E.2d 360, 361 (Ind. 1991). In order for a negligent act
to be a proximate cause of injury, the injury need only be a
natural and probable result thereof, and the consequence be one which in light
of the circumstances should reasonably have been foreseen or anticipated. Garrison, 486
N.E.2d at 10.
Three views have emerged regarding whether and to what extent a plaintiff may
recover the costs associated with rearing an unplanned child, these being: (1) the
full recovery rule
See footnote -the parent may recover all costs of rearing the child; (2)
the benefit ruleSee footnote -the parent may recover the cost of rearing the child offset
by the benefits the parent will incur as a result of having the
child; and (3) the no recovery ruleSee footnote -the parent may not recover the costs
of rearing the child.See footnote
Id. at 8. Sixteen years ago, this
court subscribed to the no recovery rule in Garrison v. Foy, 486 N.E.2d
5 (Ind. Ct. App. 1985).
1. Prior Indiana Decisions
In Garrison, a healthcare provider performed a vasectomy on father per his wishes
to prevent him from impregnating his wife. 486 N.E.2d at 7.
Two weeks later, the healthcare provider performed a test on father's sperm sample
and informed him that he was sterile. Id. Thereafter, mother gave
birth to a child with birth defects. Id. Consequently, mother and
father brought suit on their own behalf alleging negligence on behalf of the
healthcare provider in performance of the vasectomy, failure to perform adequate and available
testing to verify sterility, and failure to adequately explain the risks and benefits
of surgery. Id. Mother and father sought damages for: (1) medical
expenses incurred from the birth; (2) future medical expenses for care of the
infant; (3) costs of raising the child to majority; (4) damages for mental
and physical suffering and mental and physical anguish suffered as a result of
the deformity of the child. Id.
In response, the healthcare provider filed with the trial court an Indiana Trial
Rule 12(B)(6) motion to dismiss for failure to state a cause of action
in Indiana, a motion which the trial court later granted. Id.
On appeal, we held that a cause of action for "wrongful pregnancy" exists
in Indiana but that "the costs of rearing a child after an unsuccessful
sterilization procedure may not be recovered from the healthcare provider." Id. at
8-9. Our refusal to allow a plaintiff to recover child-rearing costs was
based upon Indiana public policy grounded in the limitation of damages of the
Medical Malpractice Act, wrongful death actions for the death of a child, and
the comparative fault statute. Id. at 9. We concluded that in
a claim of "wrongful pregnancy:"
The possible damages which may be recovered are limited to those directly caused
by the unsuccessful sterilization and resultant pregnancy and do not include costs of
raising the child nor exceptional expenses associated with the child's defect.
Id. at 10. Although, we note this holding, we believe that the
Indiana Supreme Court's recent decision in Bader impliedly overruled the portion of Garrison
which prohibits a plaintiff after an unsuccessful sterilization procedure from recovering child-rearing damages
from a healthcare provider.
The parents in Bader brought a claim against the healthcare providers labeled "wrongful
birth" seeking the following damages: (1) hospital and related medical expenses associated with
the pregnancy and delivery; (2) costs associated with providing the infant with care
and treatment; (3) lost income; (4) emotional distress; and (5) loss of consortium.
732 N.E.2d at 1220. As discussed previously, the Indiana Supreme Court
in Bader decided that the parent's injury was the lost opportunity to terminate
a pregnancy, and refused to extend the practice of labeling such a claim
as "wrongful birth." Id. at 1216. After determining that the parents
had brought a cognizable claim in Indiana, the court addressed the issue of
. . . we have determined that this case should be treated no
differently than any other medical malpractice case. Consequently, we need not evaluate
the type of damages that may be allowed in a claimed "wrongful birth"
action. Rather, we look at the damages the [parents] contend they suffered
and determine whether, if proven, they can be said to have been proximately
caused by the Healthcare Providers' breach of duty . . . .
Indiana subscribes to the general principle of tort law that all damages directly
attributable to the wrong done are recoverable. As we have indicated, the
[parents'] claimed injury in this case is the lost opportunity and ability to
terminate the pregnancy. In turn, the loss may be measured by the
medical and other costs directly attributable to [mother] carrying the child to term.
In addition to emotional distress damages, which we discuss below, the damages
[the parents] seek are consistent with those naturally flowing from Healthcare Providers' breach
Id. at 1220-21 (citations omitted).
See footnote Essentially, the Indiana Supreme Court determined that
the normal rule of recovery in medical malpractice cases should be followed and
that there exists no special class of damages applicable to prenatal torts.
Bader to the present case, we will utilize traditional notions of causation
to determine whether child-rearing damages naturally flow from a healthcare provider's negligent performance
of a sterilization procedure that results in the birth of a normal, healthy
child. Assuming Seslar has proven duty and breach, in order to obtain
damages from the healthcare provider, she must satisfy the third element of a
medical malpractice action: compensable injury proximately caused by the breach. See id.
at 1218. Seslar argues that as a result of the healthcare provider's
negligent performance of the abdominal bilateral partial salpingectomy, she became pregnant and conceived
a normal, healthy child. According to Seslar, she underwent the sterilization procedure
to specifically avoid the conception of any child, not just a child with
birth defects or abnormalities.
An indispensable element of a negligence claim is that the act complained of
be the proximate cause of the plaintiff's injuries. Oelling, 593 N.E.2d at
190. A negligent act is the proximate cause of the injury if
the injury is a natural and probable consequence, which in light of the
circumstances, should have been foreseen or anticipated. Havert v. Caldwell, 452 N.E.2d
154, 158 (Ind. 1983). The policy underlying proximate cause is that we,
as a society, only assign legal responsibility to those actors whose acts are
closely connected to the resulting injuries, such that imposition of liability is justified.
Adams Township of Hamilton County. v. Sturdevant, 570 N.E.2d 87, 90 (Ind.
Ct. App. 1991), trans. denied. Stated another way, proximate cause sets
the parameters in which an actor "can expect the law to provide .
. . protection to his activity." Galbreath v. Engineering Constr. Corp., 149
Ind. App. 347, 273 N.E.2d 121, 127 (1971).
In the present case, we are faced with a preliminary determination by a
trial court that child-rearing expenses are available in a claimed "wrongful pregnancy" suit;
the medical review panel has not rendered a decision nor has there been
a trial on the merits. We believe that child-rearing expenses are available
to Seslar if she carries her burden of proof at trial that these
damages are a natural and probable consequence of the healthcare provider's breach.
At a minimum, proximate cause requires that the injury would not have occurred
but for the defendant's conduct. Cowe, 575 N.E.2d at 635. The
"but for" test presupposes that absent the defendant's conduct, a plaintiff would have
been spared suffering the claimed injury. Id. Seslar's claimed injury is
that but for the healthcare provider's negligent performance of the sterilization procedure, she
would not have conceived the unplanned child and incur the attendant child-rearing expenses.
Seslar is faced with the cost of raising the unplanned child. Child-rearing
expenses are the costs Seslar was attempting to avoid by undergoing the sterilization
procedure. Seslar sought to prevent conception and the birth of the normal,
healthy child resulted from the healthcare provider's breach. The healthcare provider's sole
purpose in performing the procedure was to comply with Seslar's wishes to prevent
conception. Certainly the costs associated with raising a child are foreseeable and
unavoidable. The proximate cause doctrine utilized by our supreme court in Bader
allows recovery of all damages which flow from the healthcare provider's breach.
We believe that child-rearing expenses are a natural and probable consequence of the
healthcare provider's breach.
3. Other Considerations for Limiting Damages
However, it has been asserted that child-rearing damages should be prohibited because these
expenses are too speculative. See, e.g., Boone v. Mullendore, 416 So.2d 718,
721-22 (Ala. 1982); Coleman v. Garrison, 349 A.2d 8, 12 (Del. 1975).
We reject this argument. Juries are often called upon to make
more complex damage assessments in other medical malpractice actions such as those involving
pain and suffering and mental anguish. Furthermore, damages are often awarded for
future care and medical treatment in the personal injury context but are not
considered speculative despite the fact that the money may not be needed or
utilized for such care and treatment in the future.
See footnote Moreover, there are
means by which child-rearing expenses may be calculated, such as economic demographers, government
studies,See footnote actuarial and insurance company statistics,See footnote and population studies.See footnote Such costs are
easily understandable and appreciated by the average citizen through their own experience of
raising children. Although the damage awards cannot be based upon mere speculation
or guesswork, no degree of mathematical certainty is required in the damage calculation.
Weston v. Buckley, 677 N.E.2d 1089, 1093 (Ind. Ct. App. 1997), trans.
denied. Generally, a jury has liberal discretion in assessing damages where they
cannot be calculated with mathematical certainty. See Dee v. Becker, 636 N.E.2d
176, 178 (Ind. Ct. App. 1994).
See footnote Thus, we reject the argument that
child-rearing damages are too speculative. See footnote
Moreover, several policy argumentsSee footnote have been asserted regarding why this court should draw
a line limiting the damages available to a parent in a claim of
"wrongful pregnancy" to those directly incident to the pregnancy. It has been
argued that the birth of a healthy, normal child cannot constitute a legal
harm for which damages are recoverable.See footnote
See Taylor v. Kurapati, 600 N.W.2d
670, 681 (Mich. Ct. App. 1999)("Simply stated, a child should not be considered
a harm to its parents so as to allow recovery for the customary
cost of raising the child to majority."); see also Jackson v. Bumgardner, 347
S.E.2d 743, 749 (N.C. 1986). This is based on the concept that
there exists no injury because the benefits of a healthy child substantially outweigh
any child-rearing expenses. One jurisdiction has explained that the "bond and 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." Beardsley v. Wierdsma, 650 P.2d 288, 293 (Wyo. 1982); see
Nake v. Napier, 346 N.W.2d 520, 522-23 (Iowa 1984).
Moreover, it has been expounded that child-rearing damages should not be recoverable because
society places such high value on human life that the birth of a
normal, healthy child cannot be a legal wrong for which damages may be
recovered. See, e.g., Schork v. Huber, 648 S.W.2d 861, 862 (Ky. 1983).
This concept embodies the belief that the sanctity of human life would
be undermined if child-rearing damages are recoverable against a healthcare provider for the
negligent performance of a sterilization procedure. One jurisdiction has provided that:
As a matter of public policy, the birth of a normal and healthy
child does not constitute a legal harm for which damages are recoverable.
We recognize wrongful death actions because of the great value we place on
human life . . . . The birth of a normal, healthy child
may be one of the consequences of a negligently performed sterilization, but we
hold that it is not a legal wrong for which damages should or
may be awarded.
Byrd v. Wesley Med. Ctr., 699 P.2d 459, 468 (Kan. 1985). We
believe that a parent's injury is not the birth of her child, but
rather is the invasion of her interest in the financial security of her
family and the attendant desire to limit her family size, and the deprivation
of her right to limit procreation. Also, the sanctity of life is
more undermined by a parent being financially unable to provide the basic necessities
of life than allowing the recovery of child-rearing expenses. Therefore, we reject
these policy arguments for denying child-rearing expenses.
The "emotional bastard" argument has also been asserted as a reason to
deny child-rearing expenses. It has been argued the award of child-rearing damages
will harm the emotional health of the unplanned child. See, e.g., Boone,
416 So.2d at 722; Cockrum v. Baumgartner, 447 N.E.2d 385, 390 (Ill.
1983), cert. denied, 464 U.S. 846 (1983); Miller v. Johnson, 343 S.E.2d
301, 307 (Va. 1986). Parents who attempt to prove that the
burdens of the unplanned child outweigh his "worth" will be encouraged to deny
the child's "value" to them. See, e.g., Wilbur v. Kerr, 628 S.W.2d
568, 571 (Ark. 1982). Upon learning that another is providing his upbringing,
the child may feel unwanted, an "emotional bastard." Wilbur, 628 S.W.2d at
We refuse to subscribe to this argument for limiting damages. A parent
does not seek damages because he or she does not love or want
to keep the unplanned child, rather because the healthcare provider's negligence has resulted
in the imposition of financial burdens which the parent desired to avoid.
See Jones v. Malinowski, 473 A.2d 429, 436 (Md. 1984). Essentially, a
parent seeks child-rearing damages to stabilize the family's finances, not to disparage the
worth of the child. Moreover, child-rearing damages are not for the unplanned
child or so-called "emotional bastard," "but to replenish the family exchequer so that
the new arrival will not deprive the other members of the family of
what was planned as their just share of the family income." Custodio,
59 Cal. Rptr. at 477. The award of child-rearing expenses acknowledges the
costliness of raising a child, as well as the possible disruptive effect of
the unplanned child on the finances of the family.
Furthermore, a parent's claim against a healthcare provider may be viewed as an
indication of their emotional bond to the newborn; having initially chosen not to
have a child the parents now desire the means to properly raise the
child. See Marciniak v. Lundborg, 450 N.W.2d 243, 246 (Wis. 1990).
Many children are unplanned but secure in their family's love; the parent's litigation
does not indicate rejection of or hostility to the unplanned child, but instead
an effort to finance his well-being. See Flowers v. District of Columbia,
478 A.2d 1073, 1078 (D.C. 1984) (Ferren, J., dissenting). Besides, any psychological
harm the child may suffer will surely be less harmful than growing up
underfed, ill-clothed, and ill-educated. Therefore, we hold that child-rearing damages enhance the
unplanned child's life, not disparage it, and we refuse to prohibit the recovery
of such expenses based upon the "emotional bastard" policy argument.
Another policy argument for prohibiting the recovery of child-rearing damages is that such
awards tend to be very large and out of proportion to the culpability
of the healthcare provider. See, e.g., Fassoulas v. Ramey, 450 So.2d 822,
824 (Fla. 1984); Beardsley v. Wierdsma, 650 P.2d 288, 292 (Wyo. 1982)
This court somewhat adopted this proposition as a reason for prohibiting child-rearing
damages in Garrison. 486 N.E.2d at 8. In Garrison, we stated
that the potential enormity of an award of child-rearing expenses would offend the
public policy limiting liability imposed under the Medical Malpractice Act (the "Act").
Id. We no longer agree with this argument. Indiana Code section
34-18-14-3 places a limit on the amount of damages a plaintiff may recover
for injury due to negligent conduct of healthcare providers in rendering their services.
The prohibition of child-rearing damages would place an addition limitation of liability
in medical malpractice actions not contemplated by the Indiana General Assembly. Our
legislature has not expressly limited child-rearing damages and we see no reason to
further hamper the recovery of a plaintiff in a medical malpractice action.
We do not dispute the contention that the cost of raising a child
is significant. However, we do not believe that the potential size of
the damage award is a reasonable basis on which to immunize a healthcare
provider from the foreseeable results of his or her negligence. The amount
of money needed to raise a child to majority emphasizes the economic impact
an unplanned child has upon a family, and this cost should be shifted
to the entity more able to bear the cost, the healthcare provider whose
negligence resulted in the birth of the unplanned child. Furthermore, concepts of
fairness and equity dictate to this court that we not shift the burden
of raising the unplanned child to the parent who underwent the medical procedure
to avoid conception. In addition, the Act expressly limits the amount of
money recovered in a medical malpractice action, regardless of the nature of the
damages. Therefore, we refuse to adhere to the policy argument that child-rearing
expenses are disproportionate to the healthcare provider's negligence and that the public policy
of limiting the liability of healthcare providers embedded in the Act directs this
court to prohibit the recovery of child-rearing damages.
Another policy argument against awarding child-rearing damages is that the healthcare
provider would be responsible for all of the financial costs of raising the
child, while the parents would reap all of the benefits of a lifetime
with the child. See, e.g., Wilbur, 628 S.W.2d at 571. Essentially,
the allowance of child-rearing damages would shift the entire cost of raising the
child to the healthcare provider, creating a new category of "surrogate parent."
See Rieck v. Medical Protective Co., 219 N.W.2d 242, 244-45 (1974)(child-rearing damage award
would make healthcare provider a "surrogate parent"); see also Marciniak, 450 N.W.2d
at 246. We do not believe that these damages shift the burden
of parenting to the healthcare provider. The child remains the parent's responsibility
and it is the parent, not the healthcare provider, who has the responsibility
for providing time, energy, discipline, love, and guidance to the unplanned child.
In addition, it is the parent, not the healthcare provider, who will incur
the stress and heartache which typically accompanies the raising of a child into
adulthood. Consequently, we do not find the "surrogate parent" policy argument as
a sound basis for prohibiting the recovery of child-rearing damages.
Following our supreme court's guidance in Bader, we hold that the costs involved
in raising a normal, healthy child conceived subsequent to an allegedly negligent sterilization
procedure are recoverable if the parent satisfies all of the elements of negligence.
In addition, we hold that no public policy warrants the preclusion of
child-rearing expenses from the list of available damages to a successful plaintiff in
a medical malpractice action based upon a healthcare provider's negligent performance of a
sterilization procedure which ultimately results in the birth of a normal, healthy child.
III. Mitigation of Damages
"The issue of mitigation of damages is a matter of defense with the
burden on the party held liable to respond in damages." Colonial Disc.
Corp. v. Berkhardt, 435 N.E.2d 65, 67 (Ind. Ct. App. 1982). Generally,
the non-liable party must mitigate its damages, but the burden lies with the
liable party to prove that the non-liable party has not used reasonable diligence
to mitigate its damages. Id. "[T]he principle of mitigation of damages
addresses conduct by an injured party that aggravates or increases the party's injuries.
The principle does not address the measure of damages resulting from injuries
occasioned by the tortfeasor's conduct." Wiese-GMC, Inc. v. Wells, 626 N.E.2d 595,
599 (Ind. Ct. App. 1993), trans. denied. It has been explained that:
Failure to minimize damages does not bar the remedy, but goes only to
the amount of damages recoverable. Otherwise stated, if the act of the
injured party does not operate in causing the injury from which all damages
ensued, but merely adds to the resulting damages, its only effect is to
prevent the recovery of those damages which reasonable care would have prevented.
22 AM.JUR.2D Damages § 497 (1988) (footnotes omitted).
The "avoidable consequence" doctrine has been utilized by several jurisdictions to prohibit a
parent's claim for child-rearing damages. See, e.g., Schork, 648 S.W.2d at 862;
Sorkin v. Lee, 434 N.Y.S.2d 300, 301 (App. Div. 1980).
This doctrine is rooted in section 918 of the Restatement (Second) of Torts
which provides in that:
(1) Except as stated in Subsection (2), no one injured by the tort
of another is not entitled to recover damages for any harm that he
could have avoided by the use of reasonable effort or expenditure after the
commission of the tort.
(2) One is not prevented from recovering damages for a particular harm resulting
from a tort if the tortfeasor intended the harm or was aware of
it and was recklessly disregardful of it, unless the injured person with knowledge
of the danger of the harm intentionally or heedlessly failed to protect his
Restatement (Second) of Torts § 918 (1979). The doctrine of "avoidable consequences"
only requires that "reasonable" efforts be made by the plaintiff. Id.
The only forms of mitigation available to a parent in a claim of
"wrongful pregnancy" are abortion and adoption. It has been asserted that by
a parent failing to mitigate, he or she admits that they are accepting
all the obligations of raising the child, including the costs such as child-rearing
expenses. See Flowers, 478 A.2d 1077 (parents have to make reasonable efforts
to mitigate before court considers child-rearing expenses); see also Kingsbury v. Smith, 122
N.H. 237, 442 A.2d 1003, 1006 (1982)(limit damages to medical expenses, otherwise place
burden of mitigation via abortion or adoption on parents). We believe that
the requirement of considering an abortion or placing the child up for adoption
See footnote We see no reason why a parent who is
threatened by future harm by a tortious act should subject herself to emotional
or physical pain of a different kind in order to prevent future harm.
Furthermore, the choice of abortion or adoption is a personal and private choice
involving deeply religious and moral convictions.
See Marciniak, 450 N.W.2d at 247.
Moreover, requiring mitigation of damages in a claim of "wrongful pregnancy" would
affront the United States Supreme Court's protection of procreation decisions under the Constitutional
right of privacy.
See footnote Furthermore, the public policy of this State favors life
See Garrison, 486 N.E.2d at 9; Ind. Code §
16-34-1-1 ("[c]hildbirth is preferred, encouraged, and supported over abortion"). Therefore, we hold
that neither abortion nor adoption is an ordinary or reasonable measure in the
law relating to mitigation of damages.
However, we believe that healthcare provider is entitled to present evidence to limit
the amount of the recovery of child-rearing damages by the benefits resulting from
the child's birth. According to the Restatement (Second) of Torts:
When the defendant's tortious conduct has caused harm to the plaintiff or to
his property and in so doing has conferred a special benefit to the
interest of the plaintiff that was harmed, the value of the benefit conferred
is considered in mitigation of damages, to the extent that this is equitable.
Restatement (Second) of Torts § 920 (1979). In simplest terms, the value
of any specific benefit conferred on the plaintiff by the defendant's tort must
be considered for purposes of mitigation of damages when equitable. Damages are
to be reduced only to the extent that the benefit received by the
plaintiff is the "same interest" that was harmed by the defendant's tort.
In addition, benefit can offset the damage only to the extent that it
is equitable. Also, a tortfeasor should not be permitted to force a
benefit on the plaintiff against the plaintiff's will.See footnote See footnote
Garrison, we refused to adopt the rule articulated in section
920 of the Restatement (Second) of Torts whereupon child-rearing costs would be offset
by the benefit conferred upon the parent. Garrison, 486 N.E.2d at 9.
We based our decision on the law relating to a wrongful death
action stating that:
Under Indiana Law, when parents bring a wrongful death action for the death
of a child, the jury may not consider the deprivation of happiness, comfort
and society of a child or the occurrence of physical or mental suffering
or pain by reason of loss of the child. Therefore consideration of
these factors would not be permissible in a wrongful pregnancy action to offset
the costs of rearing and the balancing would be rendered impossible.
Id. (citations ommited). Because we have determined that a claim of "wrongful
pregnancy" should be treated no differently than any other medical malpractice action and
that traditional principles of negligence apply, we see no reason not to allow
a healthcare provider to submit evidence of mitigation to the fact finder pursuant
to section 920 of the Restatement (Second) of Torts. However, we refuse
to articulate the benefits, if there are in fact any, that may be
offset against child-rearing damages recovered as a result of a healthcare provider's negligent
performance of a sterilization procedure which ultimately results in the birth of a
normal, healthy child. We merely provide that a healthcare provider should not
be precluded from presenting this type of mitigation evidence to the fact finder
as in any other negligence claim.
Based on the foregoing, we hold that the trial court properly determined that
the costs involved in raising a normal, healthy child conceived subsequent to an
allegedly negligent sterilization procedure are recoverable. In addition, we hold that a
healthcare provider faced with the award of child-rearing damages should be permitted to
produce evidence of mitigation as in any other damage award in a negligence
DARDEN, J., and RILEY, J., concur
We heard oral argument at Methodist Hospital in Indianapolis, Indiana on
May 23, 2001, and we commend counsel for their capable advocacy and thank
Dr. Peter Marcus and the hospital.
Footnote: Ind. Code §§ 34-18-1-1
Indiana Code section 34-18-11-1(a)(1) provides in pertinent part that "[a] court
having jurisdiction over the subject matter and the parties to a proposed complaint
filed with the commissioner under this article may, upon the filing of a
copy of the proposed complaint and a written motion under this chapter, do
one (1) or both of the following: preliminarily determine an affirmative defense or
issue of law or fact that may be preliminary determined under the Indiana
Rules of Procedure . . . ."
Footnote: The label "wrongful pregnancy" has been strictly limited to circumstances where
the child is conceived and born after a negligent sterilization. "Wrongful conception"
has been applied to circumstances where the negligent sterilization operation results in the
conception of a fetus, but the fetus is never born because the mother
either miscarries or has an abortion. The two labels have been used
See Hutton Brown et al., Legal Rights and Issues Surrounding Conception, Pregnancy,
and Birth, 39 VAND. L. REV. 597 (1986). For our purposes, the
label "wrongful pregnancy" will refer to those causes of action where a negligent
sterilization results in an unplanned conception, regardless whether the child was carried to
term. See, e.g., Cowe by Cowe v. Forum Group, Inc., 575
N.E.2d 630, 633 (Ind. 1991).
The medical malpractice action labeled "wrongful birth" refers to claims generally
described as causes of action brought by the parents of a child born
with birth defects alleging that due to the negligent medical advice or testing
they were precluded from making an informed decision about whether to conceive a
potentially handicapped child, or in the event of a pregnancy, to terminate it.
Cowe, 575 N.E.2d at 633. A cause of action based upon
the same type of negligent conduct that seeks damages on behalf of the
child rather than the parents is often referred to as "wrongful life."
Id. A claim of "wrongful pregnancy" has been noted as differing from
a claim of "wrongful birth" or "wrongful life" in two important respects.
First, "wrongful pregnancy" does not rest on the claim that the mother had
a right to terminate the pregnancy. Second, the "wrongful pregnancy" claim differs
because it does not necessarily involve an unhealthy or genetically damaged child.
See Dan B. Dobbs, The Law of Torts, 795-96 (2001).
We note that throughout this opinion we have referred to Seslar's
medical malpractice action as a claim of "wrongful pregnancy." We have done
so solely for the sake of economy and descriptive purposes and should in
no way be deemed as an indication that the label "wrongful pregnancy" should
survive after the rendition of this opinion.
Footnote: Four jurisdictions adhere to the full recovery rule.
Custodio v. Bauer, 251 Cal. App.2d 303, 59 Cal. Rptr. 463 (Cal. Ct.
App. 1967); Lovelace Med. Ctr. v. Mendez, 805 P.2d 603 (N.M. 1991);
Zehr v. Haugen, 871 P.2d 1006 (Or. 1994); Marciniak v. Lundborg,
450 N.W.2d 243 (Wis. 1990).
Five jurisdictions subscribe to the benefits rule.
See generally University
of Arizona Health Scis. Ctr. v. Superior Court, 667 P.2d 1294 (Ariz. 1983);
Ochs v. Borrelli, 445 A.2d 883(Conn. 1982); Jones v. Malinowski, 473
A.2d 429 (Md. 1984); Burke v. Rivo, 551 N.E.2d 1 (Mass. 1990);
Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn. 1977).
Footnote: Thirty-one jurisdictions subscribe to the no recovery rule regarding child-rearing expenses,
limiting recovery to pregnancy and child-bearing expenses. See generally Boone v. Mullendore,
416 So.2d 718 (Ala. 1982); M.A. v. United States, 951 P.2d 851
(Alaska 1998); Wilbur v. Kerr, 628 S.W.2d 568 (Ark. 1982); Coleman
v. Garrison, 349 A.2d 8 (Del. 1975); Flowers v. District of Columbia,
478 A.2d 1073 (D.C. 1984); Fassoulas v. Ramey, 450 So.2d 822 (Fla.
1984); Fulton-Dekalb Hosp. Auth. v. Graves, 314 S.E.2d 653 (Ga. 1984);
Cockrum v. Baumgartner, 447 N.E.2d 385 (Ill. 1983), cert. denied. 464 U.S. 846
(1983); Nanke v. Napier, 346 N.W.2d 520 (Iowa 1984); Byrd v.
Wesley Med. Ctr., 699 P.2d 459 (Kan. 1985); Schork v. Huber, 648
S.W.2d 861 (Ky. 1983); Pitre v. Opelousas Gen. Hosp., 530 So.2d 1151
(La. 1988); Macomber v. Dillman, 505 A.2d 810 (Me. 1986); Rouse
v. Wesley, 494 N.W.2d 7 (Mich. Ct. App. 1993); Girdley v. Coats,
825 S.W.2d 295 (Mo. 1992); Hitzemann v. Adams, 518 N.W.2d 102 (Neb.
1994); Kingsbury v. Smith, 442 A.2d 1003 (N.H. 1982); P.
v. Portadin, 432 A.2d 556 (N.J. Super. Ct. App. Div. 1981); O'Toole
v. Greenberg, 488 N.Y.S.2d 143 (N.Y. 1985); Jackson v. Bumgardner, 347 S.E.2d 743
(N.C. 1986); Johnson v. University Hosps. of Cleveland, 540 N.E.2d 1370 (Ohio
1989); Morris v. Sanchez, 746 P.2d 184 (Okla. 1987); Mason v.
Western Pa. Hosp., 453 A.2d 974 (Pa. 1982); Emerson v. Magendantz, 689
A.2d 409 (R.I. 1997); Smith v. Gore, 728 S.W.2d 738 (Tenn. 1987);
Terrell v. Garcia, 496 S.W.2d 124 (Tex. Ct. App. 1973); C.S.
v. Nielson, 767 P.2d 504 (Utah 1988); Miller v. Johnson, 343 S.E.2d
301 (Va. 1986); McKernan v. Aasheim, 687 P.2d 850 (1984); James
G. v. Caerta, 332 S.E.2d 872 (W. Va. 1985); Beardsly v. Wierdsma,
650 P.2d 288 (Wyo. 1982).
Two jurisdictions recognize the cause of action of "wrongful pregnancy," but
do not address child-rearing damages.
See Carr v. Strode, 904 P.2d 489
(Haw. 1995); Begin v. Richmond, 555 A.2d 363 (Vt. 1988).
We note that our supreme court held that the father had
not sustained a direct impact from the healthcare providers' negligence, and thus, "[w]hether
[father] can prevail on his claim for emotional distress damages depends on the
evidence adduced at trial."
Bader, 732 N.E.2d at 1222.
For example, when the patient has an early death, is cured,
or elects not to undergo such treatment.
Footnote: For example, USDA studies.
See, e.g., Jones, 473 A.2d at 436.
See, e.g., Marciniak, 450 N.W.2d at 246.
Regarding the fear of "runaway jury" verdicts, a trial court has
various checks on irrational jury awards such as jury instructions, remittur, and the
grant of a new trial.
Footnote: We note that comment a to the Restatement (Second) of Torts
§ 912 (1979) provides in pertinent part that:
It is desirable also, that there be definiteness of proof of the amount
of damages as far as is reasonably possible. It is even more
desirable, however, that an injured person not be deprived of substantial compensation merely
because he cannot prove with complete certainty the extent of harm he has
Footnote: Although not contained in his brief, Dr. Chaffee asserted several policy
arguments during oral argument.
It has been suggested that this view is rooted in a
time when society was largely agricultural, and children were actively involved in those
activities that ultimately generated an economic benefit for their parents.
Med. Ctr. v. Mendez, 111 N.M. 805 P.2d 603, 619 (1991). However,
"[i]n a post-industrial society, the cost of raising a child usually exceeds the
economic benefit, if any, the family derives from the child." Id.
We agree with the belief expounded by another jurisdiction that in the modern
age, a child brings little economic benefit to his parents.
It has been stated that :
Both the interest of the child, and the natural instincts of the parent,
make it unreasonable to require parents to submit the child in the womb
to abortion, or the child in the crib to adoption. The defendant
has no right to insist that the victims of his negligence have the
emotional and mental makeup to abort or place the child for adoption.
Schork v. Huber, 648 S.W.2d 861, 866-67 (Ky. 1983) (Leibson, J., dissenting).
See Roe v. Wade, 410 U.S. at 153(discussing women's right of
privacy and the protection of the right to choose an abortion); Eisenstadt
v. Baird, 405 U.S. at 453-54 (the choice to prevent conception is a
protected by the constitutional right of privacy); Griswold v. Connecticut, 381 U.S.
485-86 (1965) (right to privacy in making conception decisions).
We note that comment a of section 920 provides in pertinent part
that "damages allowable for an interference with a particular interest of the plaintiff
may be diminished by the amount to which the same interest has been
benefited by the defendant's tortious conduct." Restatement (Second) of Torts § 920
comment a (1979). In addition, comment b provides in pertinent part that
"[d]amages resulting from an invasion of one interest of the plaintiff are not
diminished by showing that another interest has been benefited." Restatement (Second) of
Torts § 920 comment b (1979).
Footnote: "The rule stated in this Section is limited by the general principle
underlying the assessment of damages in tort cases, which is that an injured
person is entitled to be placed as nearly as possible in the position
he would have occupied had it not been for the plaintiff's tort.
This principle is intended primarily to restrict the injured person's recovery to the
harm he actually incurred and not permit the tortfeasor to force a benefit
on him against his will." Restatement (Second) of Torts § 920 comment
Footnote: We note that this rule should not conflict with the general
principle that traditional damage measures in tort causes of action are designed to
compensate the injured person for the damage sustained by him due to the
tort-feasor's actions, and to place the plaintiff in the same financial position in
which he would have been had the tort not occurred.
As noted earlier, several jurisdictions which have allowed the full recovery
of child-rearing damages offset by the benefit have been referred by commentators and
courts as to have subscribed to the benefit rule. We do
not wholeheartedly embrace the benefit rule; rather we merely provide that a healthcare
provider should be allowed to present evidence of mitigation to the trial court
as any other negligence case when confronted with the imposition of child-rearing damages.