Bader v. Johnson

ATTORNEYS FOR APPELLANTS: ATTORNEY FOR APPELLEES:

JOHN M. CLIFTON JACK E. MORRIS
CATHLEEN M. SHRADER Benson, Pantello, Morris, James
Barrett & McNagny & Logan
Fort Wayne, Indiana Fort Wayne, Indiana

KARL MULVANEY

Bingham Summers Welsh & Spilman
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

PATRICIA BADER, M.D., and )
NORTHEAST INDIANA GENETIC )
COUNSELING, INC., )
) Supreme Court Cause Number
Appellants-Defendants, ) 02S05-9709-CV-493
)
v. )
)
RONALD JOHNSON and ) Court of Appeals Cause Number
CONNIE JOHNSON, ) 02A05-9510-CV-396
)
Appellees-Plaintiffs. )

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

RUCKER, Justice

Case Summary

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 court’s 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[1]
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 Connie’s treating physician.
At 33 weeks gestation Connie’s 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 child’s 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. Healthcare Providers appealed
the decision. Except for emotional distress damages, the Court of Appeals
affirmed the judgment of the trial court. We grant transfer.

Discussion

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 jurisdictions[2] the term “wrongful birth”[3]
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 defendant’s breach of duty.
Oelling v. Rao, 593 N.E.2d 189, 190 (Ind. 1992). This jurisdiction has
long recognized a physician’s duty to disclose to her patient material
facts relevant to the patient’s 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[4]
and the doctrine of fraudulent concealment,[5] 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 Connie’s 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 test.
As for a breach of duty, expert medical testimony is usually required
to determine whether a physician’s 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.”), reh’g. 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 plaintiff’s 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).[6]
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 defendant’s 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 defendant’s 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
child’s defects themselves. The Johnsons do not claim that the negligence
of Healthcare Providers “caused” their child’s 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 child’s birth. The child sued the nursing home
contending, among other things, that because of the nursing home’s
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
child’s 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
defendant’s 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.
III. Damages
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 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.
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 child’s 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.[7] Indiana subscribes to
the general principle of tort law that all damages directly attributable to
the wrong done are recoverable. 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.[8]
In 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. Indiana’s 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 plaintiff.

Shuamber, 579 N.E.2d at 456.
The underlying rationale for Indiana’s 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).
Indiana’s 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 physician’s 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 patron’s 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 guest’s 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 plaintiff’s direct involvement in the
tortfeasor’s 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 Connie’s 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 Provider’s 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).[9] Whether Ronald can prevail on his claim for emotional distress
damages depends on the evidence adduced at trial.

Conclusion

We grant transfer, vacate the opinion of the Court of Appeals, affirm
in part the trial court’s 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

IN THE

INDIANA SUPREME COURT

PATRICIA BADER, M.D., and
NORTHEAST INDIANA GENETIC COUNSELING, INC.,
Appellants (Defendants below)

v.

RONALD JOHNSON and
CONNIE JOHNSON,
Appellees (Plaintiffs below).

)
) Supreme Court No.
) 02S05-9709-CV-493
)
)
)
) Court of Appeals No.
) 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

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 majority’s analysis.

In The
INDIANA SUPREME COURT

PATRICIA BADER, M.D., and )
NORTHEAST INDIANA GENETIC )
COUNSELING, INC., )
Defendant-Appellant, )
)
v. ) 02S05-9709-CV-493
)
RONALD JOHNSON and )
CONNIE JOHNSON, )
Plaintiff-Appellee. )

________________________________________________

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.

-----------------------
[1] 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.

2 J. E. Schmidt, M.D., Attorney’s Dictionary of Medicine and Word Finder H-
132 (Matthew Bender 1990).

[2] 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).

[3] “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. Id.
[4] 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.”).

[5] 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.”).

[6] 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 defendant’s negligence proximately caused the plaintiff’s injury.”),
reh’g. 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 Connie’s
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
Provider’s failure to provide the result of the ultrasound. Thus, expert
testimony on this point is unnecessary.
[7] 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. Id.

[8] 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. See, e.g., Wine-Settergren v. Lamey, 716 N.E.2d 381, 383 (Ind.
1999); Cahoon, 715 N.E.2d at 10.
[9] “[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
defendant’s negligent or otherwise tortuous conduct.” Groves, 729 N.E.2d at
573.