ATTORNEYS FOR APPELLANTS: ATTORNEY FOR APPELLEES:
JOHN M. CLIFTON JACK E. MORRIS
SUPREME COURT OF INDIANA
CATHLEEN M. SHRADER Benson, Pantello, Morris, James
Barrett & McNagny & Logan
Fort Wayne, Indiana Fort Wayne, Indiana
Bingham Summers Welsh & Spilman
PATRICIA BADER, M.D., and )
NORTHEAST INDIANA GENETIC )
COUNSELING, INC., )
) Supreme Court Cause Number
Appellants-Defendants, ) 02S05-9709-CV-493
RONALD JOHNSON and ) Court of Appeals Cause Number
CONNIE JOHNSON, ) 02A05-9510-CV-396
INTERLOCUTORY APPEAL FROM THE ALLEN CIRCUIT COURT
The Honorable Nancy Eschoff Boyer, Special Judge
Cause No. 02C01-9311-CT-92
ON PETITION TO TRANSFER
July 25, 2000
Seeking damages for injuries they suffered when their child was born with severe
birth defects, Ronald and Connie Johnson filed a complaint for medical malpractice against
Dr. Patricia Bader and Northwest Indiana Genetic Counseling, Inc. (referred to collectively as
Healthcare Providers). Healthcare Providers responded with a motion for summary judgment arguing
that Indiana does not recognize the tort of wrongful birth. The trial
court denied the motion and Healthcare Providers appealed. Concluding that the Johnsons
could pursue a wrongful birth cause of action, the Court of Appeals affirmed
the trial courts denial of summary judgment. In its plurality opinion the
Court of Appeals also determined that the Johnsons were not entitled to damages
for emotional distress. Bader v. Johnson, 675 N.E.2d 1119 (Ind. Ct. App.
1997). We grant Healthcare Providers petition for transfer and hold that the
Johnsons have stated a cognizable claim for medical malpractice that can be analyzed
using traditional principles of tort liability.
Facts and Procedural History
The facts most favorable to the Johnsons as nonmoving parties show they gave
birth to their first child in 1979. Born with hydrocephalus
See footnote and severe
mental and motor retardation, the child required extensive medical care until her death
at four months of age. When Connie became pregnant again in 1982,
the Johnsons were fearful of bearing another child with congenital defects so they
sought consultation with Dr. Bader. Testing showed the pregnancy was normal.
Apparently the birth proceeded without complication. The Johnsons again sought counseling with
Dr. Bader when Connie became pregnant in 1991. An amniocentesis performed at
19½ weeks gestation revealed no abnormalities. However, Dr. Bader performed an ultrasound
test the same day that revealed a fetus with a larger than expected
cavity within the brain and an unusual head shape. Dr. Bader requested
her staff to schedule Connie for follow-up testing. Due to an office
error however Connie was not scheduled and the ultrasound report was not forwarded
to Connies treating physician.
At 33 weeks gestation Connies treating physician performed his own ultrasound test and
discovered that the unborn child had hydrocephalus. It was too late to
terminate the pregnancy and Connie gave birth on September 4, 1991. In
addition to hydrocephalus, the child had multiple birth defects and died as a
result four months later.
The Johnsons filed against Healthcare Providers a proposed complaint with the Indiana Department
of Insurance. The complaint alleged negligence in Healthcare Providers failure to inform
the Johnsons of the result of the ultrasound test conducted at 19½ weeks
gestation. In due course a medical review panel rendered an opinion concluding
that Healthcare Providers failed to meet the applicable standard of care. Thereafter, the
Johnsons filed a complaint in the Allen Circuit Court alleging that
Healthcare Providers failure to inform deprived the Johnsons of the opportunity to terminate
the pregnancy. As a result the Johnsons sought a variety of damages.
Healthcare Providers responded with a motion for summary judgment contending Indiana does not
recognize a claim for wrongful birth, and even if it does recognize such
a claim, the trial court needed to determine what if any damages were
recoverable. The trial court denied the summary judgment motion and concluded the
Johnsons could recover damages for the following: (1) the extraordinary costs necessary to
treat the birth defect, (2) any additional medical or educational costs attributable to
the birth defect during the childs minority, (3) medical and hospital expenses incurred
as a result of the physicians negligence, (4) the physical pain suffered by
the mother, (5) loss of consortium, and (6) the mental and emotional anguish
suffered by the parents. Healthcare Providers appealed the decision. Except for
emotional distress damages, the Court of Appeals affirmed the judgment of the trial
court. We grant transfer.
I. Standard of Review
On appeal from the denial of a motion for summary judgment, we apply
the same standard applicable to the trial court. Doe v. Shults-Lewis Child
and Family Services, Inc., 718 N.E.2d 738, 745 (Ind. 1999). We must
determine whether the record reveals a genuine issue of material fact and whether
the trial court correctly applied the law. Shaumber v. Henderson, 579 N.E.2d 452,
454 (Ind. 1991). Any doubt as to a fact or an inference
to be drawn, is resolved in favor of the non-moving party. Malachowski
v. Bank One, Indianapolis, 590 N.E.2d 559, 562 (Ind. 1992). In addition,
where the 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). Appellate courts independently, and without the slightest deference to trial
court determinations, evaluate those issues they deem to be questions of law.
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. 4A KENNETH M. STROUD, INDIANA PRACTICE § 12.3 at 134
(2d ed. 1990).
II. Cause of Action
Although not disputing the operative facts in this case, Healthcare Providers contend the
trial court erred in denying its motion for summary judgment because as a
matter of law Indiana does not recognize a claim in tort for wrongful
birth. Although a popular characterization among some commentators and a number of
See footnote the term wrongful birthSee footnote seems to have its genesis as a play
upon the statutory tort of wrongful death.
See Alexander M. Capron, Tort
Liability in Genetic Counseling, 79 Colum. L. Rev. 618, 634 n.62 (1979).
However, as the Nevada Supreme Court observed, we see no reason for compounding
or complicating our medical malpractice jurisprudence by according this particular form of professional
negligence action some special status apart from presently recognized medical malpractice or by
giving it the new name of wrongful birth. Greco v. United States,
893 P.2d 345, 348 (Nev. 1995). We agree. It is unnecessary
to characterize the cause of action here as wrongful birth because the facts
alleged in the Johnsons complaint either state a claim for medical malpractice or
they do not. Labeling the Johnsons cause of action as wrongful birth
adds nothing to the analysis, inspires confusion, and implies the court has adopted
a new tort.
Medical malpractice cases are no different from other kinds of negligence actions regarding
that which must be proven. The plaintiff must show: (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
defendants breach of duty. Oelling v. Rao, 593 N.E.2d 189, 190 (Ind.
1992). This jurisdiction has long recognized a physicians duty to disclose to
her patient material facts relevant to the patients decision about treatment. Boruff
v. Jesseph, 576 N.E.2d 1297, 1299 (Ind. Ct. App. 1991). Although a
discussion of this duty has generally arisen in cases involving informed consent
See footnote and
the doctrine of fraudulent concealment,See footnote neither of which is alleged here, the underlying
premise is still the same. In order for a patient to make
an informed decision about her health, she must have the relevant facts at
her disposal. If the physician has possession of those facts, then the
physician has a duty to disclose them. Th[is] duty arises from the
relationship between the doctor and patient, and is imposed as a matter of
law as are most legal duties.
Culbertson v. Mernitz, 602 N.E.2d 98,
101 (Ind. 1992) (quoting Joy v. Chau, 177 Ind. App. 29, 39, 377
N.E.2d 670, 676-77 (1978)).
In this case, the Johnsons allege they consulted Healthcare Providers to obtain information
having a direct bearing on Connies health, namely: a decision to terminate the
pregnancy. According to the Johnsons the ultrasound test conducted by Healthcare Providers,
revealing pre-natal abnormalities, was precisely the kind of information the couple needed to
make an informed decision. For purposes of this summary judgment action we
accept the Johnsons assertions as true. National City Bank, Indiana v. Shortridge,
689 N.E.2d 1248, 1250-51 (Ind. 1997). As a matter of law Healthcare
Providers owed a duty to the Johnsons to disclose the result of the
As for a breach of duty, expert medical testimony is usually required to
determine whether a physicians conduct fell below the applicable standard of care.
Simms v. Schweikher, 651 N.E.2d 348, 350 (Ind. Ct. App. 1995). This
is generally so because the technical and complicated nature of medical treatment makes
it impossible for a trier of fact to apply the standard of care
without the benefit of expert opinion on the ultimate question of breach of
duty. Id. Here, however, we doubt whether expert testimony is required
to determine whether Healthcare providers breached its duty. See Harris v. Raymond,
715 N.E.2d 338, 394 (Ind. 1999) (stating that not all medical malpractice cases
are so technical that they require expert testimony.), rehg. denied. If Healthcare
Providers did not provide the Johnsons with the result of the ultrasound, then
Healthcare Providers breached its duty. It does not appear to us that
expert testimony is required on this point. In any event, the medical
review panel in this case rendered an opinion concluding that Healthcare Providers failed
to meet the applicable standard care. In addition, the Johnsons alleged a
breach of duty and thus far in this litigation Healthcare Providers have not
challenged the allegation. We accept them as true for purposes of this
action. National City Bank, Indiana, 689 N.E.2d at 1250-51.
Assuming duty and breach of duty, we next address the third element of
a medical malpractice cause of action: compensable injury proximately caused by the
breach. According to the Johnsons, as a result of Healthcare Providers conduct
they were not informed of the fetus condition until it was too late
to terminate the pregnancy, resulting in Connie carrying to term and giving birth
to a severely deformed child.
An indispensable element of a negligence claim is that the act complained of
must be the proximate cause of the plaintiffs injuries. Oelling, 593 N.E.2d
at 190; Havert v. Caldwell, 452 N.E.2d 154, 158 (Ind. 1983). A
negligent act is the proximate cause of an injury if the injury is
a natural and probable consequence, which in the light of the circumstances, should
have been foreseen or anticipated. Havert, 452 N.E.2d at 158; Bridges v.
Kentucky Stone, 425 N.E.2d 125, 127 (Ind. 1981).
On the question of causation, Healthcare Providers make two claims: (1) there
is an insufficient nexus between the Johnsons claimed injury and the alleged act
of negligence, and (2) Healthcare Providers did not cause the Johnsons injury.
At a minimum, proximate cause requires that the injury would not have occurred
but for the defendants conduct.
Cowe, 575 N.E.2d at 635; Johnson v.
Owens, 639 N.E.2d 1016, 1023 (Ind. Ct. App. 1994). The but for
test presupposes that absent the defendants conduct, a plaintiff would have been spared
suffering the claimed injury. Cowe, 575 N.E.2d at 635. The Johnsons
claimed injury is that but for Healthcare Providers failure to provide them with
the result of the ultrasound test, the pregnancy would have been terminated.
Whether the Johnsons can carry their burden of proof on this point at
trial remains to be seen. However, at this stage of the proceedings
the question is whether the Johnsons carrying to term and giving birth to
a severely deformed child can be the natural and probable consequence of Healthcare
Providers breach of duty, which Healthcare Providers should have foreseen or anticipated.
This question must be answered affirmatively. Again, for purposes of this summary
judgment action only, we accept as true the allegations contained in the Johnsons
complaint and the reasonable inferences to be drawn therefrom. The record shows
the Johnsons consulted Healthcare Providers in 1982 when Connie was pregnant with her
second child and again in 1991 when she became pregnant with her third
child. The consultations were inspired by experiences the Johnsons encountered with their
first child who was born with severe defects. The facts most favorable
to the Johnsons suggest that Healthcare Providers knew or reasonably should have known
that depending on the results of the ultrasound test, the Johnsons would not
carry the pregnancy to term. We conclude, therefore that the Johnsons have
made a prima facie claim of legal causation.
Advancing several public policy arguments, Healthcare Providers contend that even assuming duty, breach,
and proximate cause the Johnsons still should not be allowed to pursue their
claim. Chief among its arguments is that the court is being called
upon to weigh life (however imperfect) against the non-existence of life as that
directly impacts the parents of the child. Brief of Appellant at 20.
Characterizing the Johnsons injury as the birth of a child with congenital
defects, Healthcare Providers argue life, even life with severe defects, cannot be an
injury in the legal sense. Brief of Appellant at 24 (quoting Cowe,
575 N.E.2d at 635).
We first observe that the injury claimed in this case is not the
childs defects themselves. The Johnsons do not claim that the negligence of
Healthcare Providers caused their childs defects. Instead, they contend that Healthcare Providers
negligence caused them to lose the ability to terminate the pregnancy and thereby
avoid the costs associated with carrying and giving birth to a child with
severe defects. In the context of this medical malpractice action, the distinction
between causing the Johnsons to forego termination of the troubled pregnancy and causing
a defective birth is significant. The former is a matter of causation
while the latter goes to the question of damages, which we discuss in
more detail in the next section of this opinion. This distinction was
amplified in Cowe where we were confronted with a claim by a child
born to a mentally retarded mother. While in the custody of a
nursing home the mother was raped, resulting in the childs birth. The child
sued the nursing home contending, among other things, that because of the nursing
homes negligence in failing to protect the mother from rape, the child was
wrongly born into a world in which there was no natural parent capable
of caring for and supporting him. 575 N.E.2d at 632. We
rejected the childs claim on two interrelated grounds: (1) a general conceptual unwillingness
to recognize any cognizable damages for a child born with a genetic impairment
as opposed to not being born at all, and (2) the impossibility of
calculating compensatory damages to restore a birth defective child to the position he
would have occupied were it not for the defendants negligence. Id. at
634. Both interrelated grounds go to the issue of damages. It
was in that context we declared life, even life with severe defects, cannot
be an injury in the legal sense. Id. at 635.
Thus, in Cowe, the injury was life itself. And as with numerous
other jurisdictions 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. Id. at 634 (internal citations omitted). Here, however, the
injury is the lost opportunity and ability to terminate the pregnancy. Failure
to allow the Johnsons to proceed with their claim would immunize those in
the medical field from liability for their performance in one particular area of
medical practice. Garrison v. Foy, 486 N.E.2d 5, 8 (Ind. Ct. App.
1985) (recognizing the existence of a cause of action for wrongful pregnancy).
We decline to carve out an exception in this case, and see no
reason to prohibit the Johnsons from pursuing their claim.
It is a well-established principle that damages are awarded to fairly and adequately
compensate an injured party for her loss, and the proper measure of damages
must be flexible enough to fit the circumstances. Decatur County AG-Services, Inc.
v. Young, 426 N.E.2d 644, 646 (Ind. 1981); Terra-Products, Inc. v. Kraft General
Foods, Inc., 653 N.E.2d 89, 93 (Ind. Ct. App. 1995); Weise-GMC, Inc. v.
Wells, 626 N.E.2d 595, 597 (Ind. Ct. App 1993). In tort actions
generally, all damages directly related to the wrong and arising without an intervening
agency are recoverable. Erie Insurance Co. v. Hickman by Smith, 622 N.E.2d
515, 519 (Ind. 1993). In negligence actions specifically, the injured party is
entitled to damages proximately caused by the tortfeasors 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.
Viewing this case as asserting a tort of wrongful birth the trial court
determined that the Johnsons could recover the following damages: (1) the extraordinary costs
necessary to treat the birth defect, (2) any additional medical or educational costs
attributable to the birth defect during the childs minority, (3) medical and hospital
expenses incurred as a result of the physician's negligence, (4) the physical pain
suffered by the mother, (5) loss of consortium, and (6) the mental and
emotional anguish suffered by the parents. The Court of Appeals also viewed
this case as one for wrongful birth. Thus, following the lead from
other jurisdictions, with the exception of mental and emotional distress, the Court of
Appeals agreed the Johnsons were entitled to recover the foregoing damages. However,
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 Johnsons contend they suffered and determine whether,
if proven, they be can said to have been proximately caused by Healthcare
Providers breach of duty. See Peak, 578 N.E.2d at 361.
Consolidated and rephrased the Johnsons complaint essentially sets forth 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.
See footnote Indiana subscribes to the general
principle of tort law that all damages directly attributable to the wrong done
Burris v. Reister, 506 N.E.2d 484, 485 (Ind. Ct. App.
1987). As we have indicated, the Johnsons claimed injury in this case
is the lost opportunity and ability to terminate the pregnancy. In turn,
the loss can be measured by the medical and other costs directly attributable
to Connie carrying the child to term. In addition to emotional distress
damages, which we discuss below, the damages the Johnsons seek are consistent with
those naturally flowing from Healthcare Providers breach of duty.
Shuamber v. Henderson, 579 N.E.2d 452 (Ind. 1991), a mother and daughter
sought recovery for the emotional distress they suffered when their son/brother was killed.
The death occurred when the car in which the three were traveling
was struck by a drunk driver. Indianas traditional impact rule precluded mother
and daughter from obtaining relief. The rule required that damages for mental
distress or emotional trauma could be recovered only where the distress was accompanied
by and resulted from a physical injury caused by an impact to the
person seeking recovery. Mother and daughter could not recover because their emotional
trauma was not triggered by their own injuries, but rather by witnessing the
injuries of their son/brother. Although not abolishing the rule, this court modified
it as follows:
When, as here, a plaintiff sustains a direct impact by the negligence of
another and, by virtue of that direct involvement sustains an emotional trauma which
is serious in nature and of a kind and extent normally expected to
occur in a reasonable person, . . . such plaintiff is entitled to
maintain an action to recover for that emotional trauma without regard to whether
the emotional trauma arises out of or accompanies any physical injury to the
Shuamber, 579 N.E.2d at 456.
The underlying rationale for Indianas traditional impact rule was that absent physical injury,
mental anguish is speculative, subject to exaggeration, likely to lead to fictitious claims,
and often so unforeseeable that there is no rational basis for awarding damages.
Cullison v. Medley, 570 N.E.2d 27, 29 (Ind. 1991). As modified,
the rule still requires physical impact as distinguished from physical injury. However,
the rationale for requiring some type of physical impact is still the same.
Stated somewhat differently, as the United States Supreme Court observed [b]ecause the
etiology of emotional disturbance is usually not as readily apparent as that of
a broken bone following an automobile accident, courts have been concerned . .
. that recognition of a cause of action for [emotional] injury when not
related to any physical trauma may inundate judicial resources with a flood of
relatively trivial claims, many of which may be imagined or falsified, and that
liability may be imposed for highly remote consequences of a negligent act.
Consolidated Rail Corporation v. Gottshall, 512 U.S. 532, 545 (1994) (quoting Maloney v.
Conroy, 545 A. 2d 1059, 1061 (Conn. 1988).
Indianas physical impact requirement embraces these concerns. Thus, when the courts have
been satisfied that the facts of a particular case are such that the
alleged mental anguish was not likely speculative, exaggerated, fictitious, or unforeseeable, then the
claimant has been allowed to proceed with an emotional distress claim for damages
even though the physical impact was slight, or the evidence of physical impact
seemed to have been rather tenuous. See, e.g., Alexander v. Scheid, 726
N.E.2d 272, 283-84 (Ind. 2000) (holding that patient suffering from the destruction of
healthy lung tissue due to physicians failure to diagnose cancer was sufficient for
negligent infliction of emotional distress); Holloway v. Bob Evans Farms, Inc., 695 N.E.2d
991, 996 (Ind. Ct. App. 1998) (concluding that restaurant patrons ingestion of a
portion of vegetables cooked with a worm was a direct physical impact under
the modified impact rule); Dollar Inn, Inc., v. Slone, 695 N.E.2d 185, 189
(Ind. Ct. App. 1998) (finding that hotel guest stabbing herself in the thumb
with a hypodermic needle concealed in a roll of toilet paper was sufficient
for claim of emotional distress associated with guests fear of contracting AIDS), trans.
denied. Further, this court has determined that the modified impact rule does
not require that the impact be initiated by the tortfeasor. Conder v.
Wood, 716 N.E.2d 432, 435 n.3 (Ind. 1999). Rather, the impact need
only arise from the plaintiffs direct involvement in the tortfeasors negligent conduct.
Id. (finding that a pedestrian suffered a direct impact by pounding on the
panels of a truck that was running over her co-worker).
In this case we find that Connies continued pregnancy and the physical transformation
her body underwent as a result, satisfy the direct impact requirement of our
modified impact rule. Provided she can prevail on her negligence claim, we
see no reason why Connie should not be able to claim damages for
emotional distress. By contrast, Ronald did not suffer a direct impact as
a result of Healthcare Providers alleged negligence. We disagree with his
argument to the contrary. Rather, at most Ronald is a relative bystander,
a classification of potential victims this court has recently adopted in Groves v.
Taylor, 729 N.E.2d 569, 572-73 (Ind. 2000).
See footnote Whether Ronald can prevail on
his claim for emotional distress damages depends on the evidence adduced at trial.
We grant transfer, vacate the opinion of the Court of Appeals, affirm in
part the trial courts denial of summary judgment, and remand to the trial
court for further proceedings consistent with this opinion.
SHEPARD, C.J., and BOEHM, J., concur.
SULLIVAN, J., concurs in part and concurs in result with separate opinion.
DICKSON, J., dissents with separate opinion.
Attorneys for Appellant
John M. Clifton
Cathleen M. Shrader
Barrett & McNagny
Fort Wayne, Indiana
Attorney for Appellee
Jack E. Morris
Benson Pantello Morris James & Logan
Fort Wayne, Indiana
INDIANA SUPREME COURT
PATRICIA BADER, M.D., and
NORTHEAST INDIANA GENETIC COUNSELING, INC.,
Appellants (Defendants below)
RONALD JOHNSON and
Appellees (Plaintiffs below).
) Supreme Court No.
) Court of Appeals No.
INTERLOCUTORY APPEAL FROM THE ALLEN CIRCUIT COURT
The Honorable Nancy Eschoff Boyer, Special Judge
Cause No. 02C01-9311-CT-92
ON PETITION TO TRANSFER
July 25, 2000
SULLIVAN, Justice., concurring in part and concurring in result.
I agree with the majority that the trial court properly denied defendants motion
for summary judgment on plaintiffs claim seeking damages for injuries they allege they
suffered when their child was born with profound, life-threatening disabilities. However, I
disagree with its analysis in several respects. As to both liability and
to damages other than damages for emotional distress, I would adopt the reasoning
of the Court of Appeals in this case. See Bader v. Johnson,
675 N.E.2d 1119, 1122-1125, 1125 (Ind. Ct. App. 1997). As to damages
for emotional distress, I concur in the majoritys analysis.
INDIANA SUPREME COURT
PATRICIA BADER, M.D., and )
NORTHEAST INDIANA GENETIC )
COUNSELING, INC., )
v. ) 02S05-9709-CV-493
RONALD JOHNSON and )
CONNIE JOHNSON, )
APPEAL FROM THE ALLEN CIRCUIT COURT
The Honorable Nancy Eshcoff Boyer, Special Judge
Cause No. 02C01-9311-CT-92
On Petition To Transfer
July 25, 2000
DICKSON, Justice, dissenting
The plaintiff-parents in this case seek damages claiming that the defendant health care
providers' breach of medical duty prevented them from having the opportunity to decide
whether to terminate a pregnancy because of pre-natal abnormalities. I believe this
Court should not expand the common law to permit parents to seek damages
in such a case. In Cowe v. Forum Group, Inc., 575 N.E.2d
630 (Ind. 1991), we explained that "wrongful life" and "wrongful birth" actions are
distinguished solely by whether the actions seek damages on behalf of the child
or the parent:
The phrase "wrongful birth" applies to claims brought by the parents of a
child born with birth defects alleging that due to negligent medical advice or
testing they were precluded from an informed decision about whether to conceive a
potentially handicapped child or, in the event of a pregnancy, to terminate it.
When such action seeks damages on behalf of the child rather than
the parents, the phrase "wrongful life" instead of "wrongful birth" is employed.
Id. at 633 (citations omitted). Actions for "wrongful life" and "wrongful birth"
are different from other kinds of negligence actions. In Cowe, we held
that "[d]amages for wrongful life are not cognizable under Indiana law," id. at
635, for two principal reasons: (1) "[a] general conceptual unwillingness to recognize any
cognizable damages for a child born with a genetic impairment as opposed to
not being born at all," and (2) the impossibility of calculating compensatory damages
to restore a child born with a birth defect to the position he
would have occupied were it not for the defendant's negligence, id. at 634.
But it was primarily the former concern upon which we focused, concluding
that "'life, even life with severe defects, cannot be an injury in the
legal sense.'" Id. at 635 (quoting Azzolino v. Dingfelder, 337 S.E.2d 528,
531 (N.C. 1985)). Although this case presents a claim for wrongful birth,
the same concerns permeate it as well.
The majority opinion, treating the claim as a routine negligence claim, establishes troubling
precedent, particularly as to the nature and extent of damages. If such
claimants may recover all damages naturally flowing from a medical provider's breach of
duty, would this not also include the costs of raising and educating such
"unwanted" children? Will the birth of a child with even slight congenital
anomalies entitle the parents to claim medical malpractice damages, contending that "if they
had only known" their child would have a birth defect, they would have
terminated the pregnancy? Will our courts face actions by parents seeking child-rearing
costs because the gender of their child was not as expected, when they
had sought genetic counseling for the purpose of terminating the pregnancy in the
event that the child was of the "wrong" gender? Will defendant health-care
providers be entitled to claim a reduction in damages by presenting evidence and
arguing that, if the plaintiff-parents had elected to terminate the pregnancy, they would
likely have suffered substantial and continuing psychological trauma? Will the process of
jury selection (and resulting appeals) become a new battleground for intense disagreements regarding
the issue of abortion? These are but a few of the troubling,
foreseeable consequences of the majority opinion.
I believe that, because of the resulting complex philosophical, moral, and political implications,
this Court should not expand Indiana common law to permit parents to seek
damages resulting from the loss of an opportunity to terminate a pregnancy.
As we noted in Cowe, this involves "a calculation of damages dependent upon
the relative benefits of an impaired life as opposed to no life at
all." Cowe, 575 N.E.2d at 634 (quoting Siemieniec v. Lutheran Gen. Hosp.,
512 N.E.2d 691, 697 (Ill. 1987)). Courts are ill-equipped to provide fair,
reasonable, and intelligent resolutions to these questions.
I therefore dissent and believe that summary judgment should be entered in favor
of the defendants.
Hydrocephalus is defined as:
A condition, occurring usually in infants, marked by an abnormal increase in the
fluid (cerebrospinal fluid) which is normally present in small amounts in and around
the brain. As a result, the small cavities within the brain become
distended, i.e., the ventricles become enlarged. The pressure of the fluid between
the brain and the cranium and within the ventricles of the brain causes
the brain tissue to shrivel up and the skull to become enlarged, especially
in the region of the forehead.
J. E. Schmidt, M.D., Attorneys Dictionary of Medicine and Word Finder H-132
(Matthew Bender 1990).
See, e.g., Keel v. Branch, 624 So.2d 1022 (Ala. 1993); Archie
v. U.S. Dept. of Army, 798 P.2d 477 (Kan. 1990); Blake v. Cruz,
698 P.2d 315 (Idaho 1984); Mark Strasser, Wrongful Life, Wrongful Birth, Wrongful Death,
and the Right to Refuse Treatment: Can Reasonable Jurisdictions Recognize All But
One?, 64 Mo. L. Rev. 29 (1999); Elizabeth F. Collins, An Overview and
Analysis: Prenatal Torts, Preconception Torts, Wrongful Life, Wrongful Death, and Wrongful Birth:
Time for a New Framework, 22 J. Fam. L. 677 (1984); Trotzig,
The Defective Child and the Actions for Wrongful Life and Wrongful Birth, 14
Fam. L.Q. 15 (1980).
Wrongful birth claims are generally described as causes of action brought
by the parents of a child born with birth defects alleging that due
to 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 v. Forum Group, Inc., 575
N.E.2d 630, 633 (Ind. 1991). 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.
The phrases wrongful conception or wrongful pregnancy refer to claims for damages
brought by the parents of an unexpected child alleging that the conception of
the child resulted from negligent sterilization procedures or a defective contraceptive product.
See, e.g., In the Matter of Lawrance, 579 N.E.2d 32, 38
(Ind. 1991) (Indiana's common law doctrine of informed consent recognizes the right of
the patient to intelligently reject or accept treatment.) (citations omitted); Bowman v. Beghin,
713 N.E.2d 913, 916 (Ind. Ct. App. 1999) ([The] standard [of care] requires
that a physician provide information to a patient about a contemplated procedure that
will permit the patient to make a decision whether or not to have
the contemplated procedure.); Boruff, 576 N.E.2d at 1299 ([I]nformed consent actions are based
upon a breach of the physician's duty to make reasonable disclosure of material
facts relevant to the patient's decisions about treatment . . . .) (citation
omitted); Joy v. Chau, 177 Ind. App. 29, 39, 377 N.E.2d 670, 676-77
(1978) (It is clear that Indiana must recognize the duty of a physician
to make a reasonable disclosure of material facts relevant to the decision which
the patient is requested to make.).
See, e.g., Weinberg v. Bess, 717 N.E.2d 584, 590 (Ind. 1999)
(In the medical malpractice context, the doctrine of fraudulent concealment may operate to
toll the statutory period until the termination of the physician-patient relationship, or until
the patient did discover, or in the exercise of reasonable diligence should have
discovered, the doctor's alleged malpractice.); Martin v. Rinck, 501 N.E.2d 1086, 1089 (Ind.
Ct. App. 1986) ([A] physician is under a duty to disclose material information
to his patient; and failure to do so results in fraudulent concealment.); Spoljaric
v. Pangan, 466 N.E.2d 37, 40 (Ind. Ct. App. 1984) (The significance of
the doctrine of fraudulent concealment is that it operates to estop a defendant
from asserting a statute of limitations defense when that person, by deception or
the violation of a duty, has concealed material facts from the plaintiff preventing
discovery of a wrong.); Guy v. Schuldt, 236 Ind. 101, 111-12, 138 N.E.2d
891, 897 (1956) (Under the doctrine of fraudulent concealment, "[p]rinciples of equity always
intervene . . . to prevent a party from gaining an advantage" by
wrongfully concealing an injury from one who does not become aware of the
injury until a time after the statute of limitations has run.).
It has been held that expert opinion is usually required to
establish a causal connection between the acts or omissions of the physician and
the injury to the patient. Bowman, 713 N.E.2d at 917; Daub v.
Daub, 629 N.E.2d 873, 878 (Ind. Ct. App. 1994); see also Cahoon v.
Cummings, 715 N.E.2d 1, 17 (Ind. Ct. App. 1999) (declaring it is well
settled that in a medical negligence claim, the plaintiff must prove by expert
testimony not only that the defendant was negligent, but also that the defendants
negligence proximately caused the plaintiffs injury.), rehg. denied, (quoting Schaffer v. Roberts, 650
N.E.2d 341, 342 (Ind. Ct. App. 1995)). This court has never addressed
the precise issue of whether a causation expert is required in a medical
negligence case. And we decline to do so here because the issue is
not before us. However, we do observe that the injury to the
Johnsons is the lost ability to terminate Connies pregnancy, resulting in Connie carrying
and giving birth to a deformed child. A lay jury is capable
of deciding the truth of the Johnsons claim that Connie would have terminated
the pregnancy but for Healthcare Providers failure to provide the result of the
ultrasound. Thus, expert testimony on this point is unnecessary.
More specifically the Johnsons claimed that due to Healthcare Providers negligence,
Connie Johnson was thereby forced to proceed with the pregnancy and go through
the labor and delivery process; and both Plaintiffs were forced to bear the
emotional pain and anguish of awaiting the birth of a child that would
definitely suffer multiple congenital defects with minimal, if any, chance for any long
term survival; to provide care and treatment for said infant; to incur extensive
medical and related expenses; to suffer lost personal income; and suffer other damages
commensurate with watching that child struggle for life and to ultimately see that
child die. R. at 10. Ronald Johnson also sought a separate
claim for loss of consortium.
Our examination of the Johnsons complaint does not reveal a request
for physical pain and suffering. We note in passing however that such
damages are typically sought and are recoverable in negligence actions.
Wine-Settergren v. Lamey, 716 N.E.2d 381, 383 (Ind. 1999); Cahoon, 715 N.E.2d at
[W]here the direct impact test is not met, a bystander may
nevertheless establish direct involvement by proving that the plaintiff actually witnessed or came
on the scene soon after the death or severe injury of a loved
one with a relationship to the plaintiff analogous to a spouse, parent, child,
grandparent, grandchild, or sibling caused by the defendants negligent or otherwise tortuous conduct.
Groves, 729 N.E.2d at 573.