Cowe Ex Rel. Cowe v. Forum Group, Inc.

*970RATLIFF, Chief Judge,

dissenting.

It is important to keep in mind that in this case we are not considering any claim which Melanie Meredith might have against Forum Group, Inc., for any negligent breach of its duty to her and for any injuries she received as a proximate result of such breach. Rather, here we are concerned only with Jacob Cowe’s claim in Count IV of the complaint wherein recovery is sought for his “medical attention, care, support, maintenance and education until he attains the age of twenty-one (21).” Record at 7. The majority would allow recovery for support from the date of his birth until his adoption by Ann Cowe, and for damages resulting from injuries proximately caused by Forum’s failure to provide proper prenatal care. In addition, the concurring opinion would allow recovery by Jacob for his mental pain, suffering and anguish based upon any diminished quality of life he may suffer as the offspring of mentally deficient parents, and for extraordinary medical expenses attributable to any injury or deformity resulting from Forum’s negligence. For reasons hereinafter stated, I must dissent from each of all of these positions.

The majority finds bases for recovery in this case upon theories of (1) wrongful life, (2) negligence, and (3) prenatal tort. In my opinion, none of these theories supports the majority decision.

I. WRONGFUL LIFE

The majority recognizes that wrongful life claims have not yet been recognized in Indiana, but notes that cases from California,1 Washington, and New Jersey have recognized such claims. Harbeson v. Parke-Davis, Inc. (1983), 98 Wash.2d 406, 656 P.2d 483; Procanik v. Cillo (1984), 97 N.J. 339, 478 A.2d 755. Neither Harbeson nor Procanik is factually similar to this case, and, therefore, neither supports the majority decision as will be demonstrated by a later discussion of these cases.

In fact, it is difficult to discern the majority’s wrongful life analysis. Citing Harbeson, the majority says “[wjrongful life refers to a cause of action brought by or on behalf of a child where the child does not allege that a physician’s negligence caused the child’s deformity. Rather, the claim is that but for the negligent conduct of the physician, the child would not have been born to experience the pain and suffering attributable to the deformity.” At 965. The majority then expands the wrongful life cause of action to include a situation where, as here, “both parents are so severely mentally or physically impaired as to render them incapable of affirmatively deciding to have a child or to care for a child and where but for the custodian negligent care of both parents, the child would not have been conceived.” At 966. This is but another way of saying but for the negligence of Forum, Jacob would not have been born, and the fact of his birth constitutes an injury to him. I cannot subscribe to such a view.

The Supreme Court of Illinois in Siemienic v. Lutheran General Hospital (1987), 117 Ill.2d 230, 111 Ill.Dec. 302, 512 N.E.2d 691, rejected a claim for wrongful life by a genetically impaired child (hemophilia) against medical professionals whose negligent failure to predict or diagnose the defect was the proximate cause of his birth and having to live in an impaired condition, and noted that the overwhelming majority of jurisdictions have rejected such claims. Id. 111 Ill.Dec. at 307, 512 N.E.2d at 696. In Azzolino v. Dingfelder (1985), 315 N.C. 103, 337 S.E.2d 528, cert. denied, 479 U.S. 835, 107 S.Ct. 131, 93 L.Ed.2d 75, the Supreme Court of North Carolina reached the same result.2

*971Both the Illinois and North Carolina courts recognize that traditional tort liability concepts break down in the wrongful life cases. Assuming arguendo, Forum owed a duty in útero to Jacob, traditional tort concepts require an injury to him as a necessary predicate to liability. Thus, unless his very being is an injury, there is no basis for recovery.

Courts generally have been unwilling to hold that a child can recover damages for achieving life. “Resting on the belief that human life, no matter how burdened, is, as a matter of law, always preferable to non-life, the courts have been reluctant to find that the infant has suffered a legally cognizable injury by being born with a congenital or genetic impairment as opposed to not being born at all.” (Citations omitted). Siemienic, 111 Ill.Dec. at 308, 512 N.E.2d at 697. Stated differently, in the words of Azzolino, “life, even life with severe defects, cannot be an injury in the legal sense.” 337 S.E.2d at 532.

Indeed the essence of Jacob’s claim, as asserted in paragraph 6 of Count IV of the complaint, is that he “is owed a duty of support by [Forum] because its negligence proximately caused his birth into a world in which there was no natural parent capable of caring for and supporting him.” Record at 7. This is the very essence of the concurring opinion’s view that Jacob had an unqualified right not to be born under such circumstances. Such a view not only finds no support in case law but is contrary to the public policy of this state as declared by our legislature in Indiana Code section 34-1-1-11 which provides that “[n]o person shall maintain a cause of action or receive an award of damages on his behalf based on the claim that but for the negligent conduct of another he would have been aborted.”

The second break-down on the application of traditional tort liability concepts is the impossibility of measuring appropriate damages. Siemienic, 111 Ill.Dec. at 308, 512 N.E.2d at 697; Azzolino, 337 S.E.2d at 533. Traditional tort remedy is compensatory. “Thus, the cause of action involves a calculation of damages dependent upon the relative benefits of an impaired life ds opposed to no life at all, ‘[a] comparison the law is not equipped to make’ ” (citations omitted). Siemienic, 111 Ill.Dec. at 302, 512 N.E.2d at 691. Indeed, as the Court of Appeals of New York observed in Becker v. Schwartz (1978), 46 N.Y.2d 401, 411-12, 413 N.Y.S.2d 895, 900-01, 386 N.E.2d 807, 812, in a passage quoted in both Siemienic and Azzolino:

“Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philo-sphers and the theologians. Surely the law can assert no competence to resolve the issue, particularly in view of the very nearly uniform high value which the law and mankind has placed on human life, rather than its absence. Not only is there to be found no predicate at common law or in statutory enactment for judicial recognition of the birth of a defective child as an injury to the child; the implications of any such proposition are staggering. Would claims be honored, assuming the breach of an identifiable duty, for less than a perfect birth? And by what standard or by whom would perfection be defined?
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“Simply put, a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependent upon a comparison between the Hobson’s choice of life in an impaired state and nonexistence. This comparison the law is not equipped to make.... Recognition of so novel a cause of action requiring, as it must, creation of a hypothetical formula for the measurement of an infant’s damages is best reserved for legislative, rather than judicial, attention.”

In Siemienic, the Illinois Supreme Court observed that “no right not to be born, even into a life of hardship, has ever been recognized in our judicial system.” 111 Ill.Dec. at 311, 512 N.E.2d at 700. The concurring opinion would have us recognize a right not to be born which no other court has done, and which our legislature has *972rejected. The Siemienic court rejected the reasoning of the California, Washington, and New Jersey courts in Turpin, Harbe-son, and Procanik.3 I am persuaded by the reasoning of the Illinois court in Siem-ienic and by the North Carolina court in Azzolino.

Even if we were to accept the reasoning of Harbeson and Procanik, upon which the majority relies, Jacob Cowe would have no cause of action. In Harbeson, the mother of the children involved was an epileptic taking Dilantin. Her husband inquired of the physicians if taking such medication presented any risks during pregnancy and was advised that Dilantin could cause cleft palate an temporary hirsutism. Had the doctors searched the medical literature, they would have learned that many other serious birth defects could result. Harbe-sons had two additional children who were diagnosed as suffering from fetal hydan-toin syndrome. These children suffer a number of serious birth defects including growth deficiencies, mental retardation, drooping eyelids, and other physical and developmental defects. The Washington court recognized both a “wrongful life” action for the children and a “wrongful birth” action for the parents, but limited recovery to the extraordinary medical expenses which would be incurred, and further providing there could be but one recovery.

In Procanik, the physicians were informed by the mother that she had had measles, but failed to conduct such tests as would have revealed recent rubella during the first trimester of her pregnancy. Ignorant of what an accurate diagnosis would have revealed, the mother allowed her pregnancy to continue and gave birth to a child born with multiple birth defects including eye lesions, heart disease, and hearing defects. The New Jersey court considered both the “wrongful life” and “wrongful birth” aspects of the case, and concluded the child could recover as special damages extraordinary medical expenses connected with his birth defects but could not recover general damages. The parents’ claim for damages for emotional distress was rejected.4

In rejecting the child’s claim for general damages, the New Jersey Supreme Court in Procanik said:

“Sound reasons exist not to recognize a claim for general damages. Our analysis begins with the unfortunate fact that the infant plaintiff never had a chance of being born as a normal, healthy child. Tragically, his only choice was a life burdened with his handicaps or no life at all. The congenital rubella syndrome that plagues him was not caused by the negligence of the defendant doctors; the only proximate result of their negligence was the child’s birth.
“The crux of the problem is that there is no rational way to measure non-existence or to compare non-existence with the pain and suffering of his impaired existence. Whatever theoretical appeal one might find in recognizing a claim for pain and suffering is outweighed by the essentially irrational and unpredictable nature of that claim. Although damages in a personal injury action need not be calculated with mathematical precision, they require at their base some modicum of rationality.
“Underlying our conclusion is an evaluation of the capability of the judicial system, often proceeding in these cases through trial by jury, to appraise such a claim. Also at work is an appraisal of the role of tort law in compensating injured parties, involving as that role does, not only reason, but also fairness, predi-cability, and even deterrence of future wrongful acts. In brief, the ultimate decision is a policy choice summoning the most sensitive and careful judgment.
“From that perspective it is simply too speculative to permit an infant plaintiff to recover for emotional distress attendant on birth defects when that plaintiff *973claims he would be better off if he had not been born. Such a claim would stir the passions of jurors about the nature and value of life, the fear of non-existence, and about abortion. That mix is more than the judicial system can digest....”

478 A.2d at 763.

This analysis by the Procanik court was accepted by the Washington court in Harbeson. Thus, both of the cases relied upon by Jacob deny recovery for general damages, for diminished quality of life, for support, but strictly limit recovery to extraordinary damages incurred by reason of the birth defects. More important, in both Procanik and Harbeson, the birth defects were known, specific, articulable defects which clearly resulted from the medical conditions of which the doctors negligently failed to apprise the parents.

In contrast, here there is no evidence that Jacob suffers from any known, specific birth defect. It was conceded at oral argument that the only evidence before the court in ruling on the summary judgment was Ann Cowe’s statement that her pediatrician told her that perhaps he could tell if Jacob had any problems by the time he was five years old. Such hearsay statement could not be considered by the court in the summary judgment proceeding. Ind. Rules of Procedure, Trial Rule 56; Interstate Auction Inc. v. Central National Ins. Group (1983), Ind.App., 448 N.E.2d 1094. Further, the hearsay statement is speculative and insufficient to raise any factual issue.

The majority points to a medical report itemized in the request for admissions and included in the supplemental record stating that “the fetus is at a 10% risk for Fetal Hydantoin Syndrome.” Record at 276. This is unavailing for two reasons. First, this evidence was not presented to the court at the summary judgment hearing. Materials not presented to the trial court in considering a motion for summary judgment may not be considered by an appellate court reviewing that decision. Liberles v. County of Cook (7th Cir.1983), 709 F.2d 1122; Frank C. Bailey Enterprises, Inc. v. Cargill, Inc. (5th Cir.1978), 582 F.2d 333; Munoz v. International Alliance of Thea. Stage Comp. Etc. (1977), 563 F.2d 205. Second, the report was made prior to Jacob’s birth and indicated a ten percent (10%) chance of Fetal Hydantoin Syndrome. Significantly, however, there is no medical evidence that Jacob suffers from any birth defect, disease, or disability. Therefore, no injury has been shown to exist and there can be no tort liability.

II. NEGLIGENCE

As the majority recognizes, in order to succeed on a negligence theory, Jacob must establish three elements: (1) a duty owing on the part of Forum, (2) a breach of that duty, and (3) injuries to Jacob proximately caused by that breach. Brown v. Conrad (1988), Ind.App., 531 N.E.2d 1190. The majority, however, confused the issue of duty by discussing the duty owed to Melanie to protect her from rape and pregnancy. The majority never identified the duty owed to Jacob. Further, in discussing breach of duty, the majority again refers to the breach of the duty owed to Melanie. Even if one accepts the Harbeson court’s holding that a duty can exist prior to conception, or that the duty owed to Melanie also can constitute a duty owed to Jacob, Jacob’s action insofar as predicated upon negligence still must fail because of the failure to present any evidence of injury.

The majority cites our decision in Garrison v. Foy (1985), Ind.App., 486 N.E.2d 5, as supportive of its negligence analysis. How that is true escapes me. Garrison is a wrongful pregnancy case predicated upon a negligently performed vasectomy. However, it is indeed significant that Garrison rejected any recovery for the expenses of rearing the child, but limited recovery to the expenses of the pregnancy. Thus, Garrison points to no damages which could be recovered by Jacob.

III. PRENATAL TORT

As the majority recognizes in its discussion of the prenatal tort aspect of Jacob’s claim, this is a claim founded upon negligence. As such, the elements of duty, *974breach of duty, and injury must be found to exist in order to support the claim. The problem here is that there is no evidence of any injury to Jacob, consequently he cannot succeed upon this theory. Therefore, it is unnecessary to consider whether such a tort should be recognized in Indiana. Rather, that determination should be left for another day when a case containing all of the required elements of a negligence action is presented. There is no medical evidence in this case that Jacob has suffered any injury. Thus, his prenatal tort action also must fail.

IV. CONCLUSION

This case does not deal with any breach of duty to Melanie or with any questions of any liability to her. The question of the duty owed to Melanie and whether Forum met that duty likewise is not before us. Those are issues yet to be determined, and it would be inappropriate to make any statements concerning those issues. The sole question before us is whether Jacob has shown the existence of any genuine issue which would or could form the basis of any recovery by him on Count IV of the complaint. He has not. Therefore, I must dissent.

. No California case is cited by the majority. It is assumed that the majority has reference to Turpin v. Sortini (1982), 31 Cal.3d 220, 643 P.2d 954, 182 Cal.Rptr. 337.

. In Siemienic, although rejecting the child’s wrongful life claim, the Illinois court recognized a "wrongful birth” claim by the parents, but limited recovery to the extraordinary medical expenses incurred or to be incurred on behalf of the child because of his defective condition. North Carolina in Azzolino, rejected the wrongful birth claim also. Here, we are not concerned with any wrongful birth claim brought by Melanie and need not address.

. Siemienic contains a thorough discussion of the cases and commentaries regarding the so-called cause of action for wrongful life, and rejects such cause of action.

. The parents "wrongful birth" action was denied because of the statute of limitations.