Carol Burke v. Elliot Rivo, 406 Mass. 764 (1990)
CASE: Woman sues doctor for wrongful birth.
FACTS: Defendant doctor performed a specific type of sterilization on plaintiff patient, guaranteeing that she would be sterile. The woman related to the doctor that she wanted to go back to work to pursue her career and that the family was experiencing financial difficulties. The sterilization procedure failed, and the Burkes had a healthy baby. Immediately after the baby's birth, Carol Burke had a more reliable sterilization performed. In the action for negligence, the woman sued to recover: the patient's lost earning capacity, medical expenses of the delivery and care following the borth, the cost of care for the other children while the wife was incapacitated, the cost of the second sterilization procedure and any expenses flowing from that operation, and the husband's loss of consortium. Also, for emotion distress as a result of the unwanted pregnancy and for the economic costs of raising the child. The lower court reported to the appellate court the question of damages.
QUESTION: Whether the parents of a healthy child born following a sterilization procedure in which the physician performing the procedure guaranteed sterility can recover from the doctor in a negligence action (assuming liability) or an action for breach of guarantee the economic costs of raising the child.
BURKES ARGUE: If the defendant had told them of the risk of failure of the first sterilization procedure performed on the woman, they would have elected to have the more reliable procedure performed in the first instance; that the defendant had a duty of care to the plaintiff which he breached, the foreseeable consequence of which was the conception and birth of an unwanted child.
ARGUMENTS AGAINST: - The joy and pride in raising a child always outweigh the economic loss the parents may suffer, thus precluding recovery for the cost of raising the child.
- Child-rearing expenses should not be allowed because some day the child could be adversely affected by learning that he or she was unwanted and that someone else had paid for the expense of rearing the child.
- The costs of child-rearing are too speculative or are unreasonably disproportionate to the doctor's negligence.
COURT SAYS: Plaintiff can collect for the economic costs of raising an unwanted child that she would not have had but for the negligence of the doctor.
HOLDING: Measure of damages against a doctor in an action in negligence or breach of guarantee can include the economic costs of raising an unwanted child where the unwanted child was conceived following a sterilization procedure in which the doctor guaranteed success and where the parents elected sterilization for economic reasons; fact-finder should offset damage award against the benefits conferred, if any, on the parents as a result of the birth of the child.
RATIONALE:
- Birth is not always a net benefit to all parents at all times, as evidenced by the use of abortion and contraception to prevent. The availability of abortion, however, is not a basis for limiting damages payable by a physician but for whose negligence the child would not have been conceived.
- It is for the parents, not the courts, to decide whether a lawsuit would adversely affect the child and should not be maintained.
- The determination of the anticipated costs of child-rearing is no more complicated or fanciful than many calculations of future losses made every day in tort cases (if the child were to have died because of the doctor's negligence, for instance, damage calculations might be made concerning the newborn's earning capacity and expected medical expenses over a lifetime.
- Offset should be made for the benefits, if any, conferred upon the parents from the birth of the child.
DISSENT: I disagree.
T O P
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