Fulton-DeKalb Hospital Authority v. Graves

Gregory, Justice,

dissenting.

I agree with the majority that a cause of action for wrongful birth or wrongful conception should be recognized in Georgia. However, I cannot agree with the proposition that the costs of rearing a child are not recoverable in such an action. I would not distinguish wrongful birth actions from other medical malpractice actions: that is, traditional principles of negligence law making physicians liable for the foreseeable consequences of negligently performed operations should apply to actions for wrongful birth. Bowman v. Davis, 48 Ohio St. 2d 41 (356 NE2d 496) (1976); “Judicial Limitations on Damages Recoverable for the Wrongful Birth of a Healthy Infant,” 68 Va. L. Rev. 1311 (1982); Milsteen, Jeff L., “Recovery of Childrearing Expenses in Wrongful Birth Cases: A Motivational Analysis,” 32 Emory L. J. 1167 (1983). Clearly the foreseeable consequences of a wrongful birth include the expenses of raising the child to the age of majority. See, Annotation, 83 ALR3d 15.

It cannot be said that these damages are too speculative to assess, as the costs of raising a child are routinely calculated by juries. See, e.g., Troppi v. Scarf, 31 Mich. App. 240 (187 NW2d 511) (1971). These damages are at least as concrete as the measure of damages for the wrongful death of a child who has no established earning capacity. In such a case “the value of the child’s life must be established by the enlightened conscience of an impartial jury as applied to the evidence in the case . . . [T]he question of determining the amount to be awarded is almost entirely within the discretion of the jury.” Collins v. McPherson, 91 Ga. App. 347, 349 (85 SE2d 552) (1954). Further, the duty to support does not extend beyond the child’s eighteenth birthday, thus limiting the damages which may be recovered as the *446costs of rearing the child. See OCGA § 39-1-1 (Code Ann. § 71-101); Ritchea v. Ritchea, 244 Ga. 476 (260 SE2d 871) (1979).

Because I cannot agree with the majority view that public policy dictates the exclusion of these damages, I respectfully dissent. I am authorized to state Justice Smith joins in this dissent.