Azzolino v. Dingfelder

Justice Exum

dissenting.

I dissent from that portion of the majority’s opinion which holds that Michael Azzolino’s parents have no actionable claim against the defendants Dr. Dingfelder and Orange-Chatham Com *118 prehensive Health Services, Inc. Although the cases from our sister jurisdictions do not control us, the majority recognizes that all of them find an actionable claim under circumstances here presented. These cases differ as to the appropriate measure of damages. My view of the claim’s validity and the appropriate measure of damages follows.

First, I would note what this case may seem to be, but is not. Although this case may seem to present many thorny moral, philosophical, and theological questions, not the least of which involves our views concerning the abortion issue, we need not address any of those difficult areas. This case becomes much less problematic when expressed in its simplest terms: whether an obstetrician’s alleged negligent failure to inform or to inform accurately his patient concerning relevant facts, risks, and procedures indicated in light of her condition gives rise to an actionable claim for damages proximately caused by this failure. The simple application of traditional tort concepts compels an affirmative answer.

Although I might personally believe that life in any condition is always preferable to nonexistence, I am not willing to accept the majority’s stance that this philosophy precludes the recognition of a cognizable and compensable legal injury to Michael’s parents under the circumstances of this case.

The legal injury in this case is not Michael’s life, or even his impaired life. Although Michael’s life exists because of defendants’ alleged negligence, his parents were not injured by his existence. They were injured when they were deprived of information they needed to make an informed choice whether to allow their child to come to term. The right of a woman to seek an abortion free from state interference is recognized by the legislature. N.C.G.S. § 14-45.1(a) (1981). It seems to me the upshot of this legislation is to place the right to choose whether to bear or not to bear a conceived child in the hands of its parents. Parents, and in this case Michael’s parents, should be the ones to make the choice and bear the responsibility for it. Defendants by negligently providing wrong information or failing to provide proper information the Azzolinos were entitled to have prevented them from making an informed choice for themselves, and, in effect, substituted defendants’ choice for theirs. For this injury, not *119 Michael’s existence, defendants should be subject to whatever damages may reasonably be attributed to the injury.

The majority worries that prospective plaintiff parents will invent a prior desire to abort to support a claim, and that physicians will be held civilly liable by parents who, perhaps on a whim, decide that their child is “defective” and would have been aborted had the defect been known early in the pregnancy. The majority carries these concerns to the conclusion that physicians will be pressured into taking the “safe” course by recommending abortion and giving advice to that effect.

I do not find these concerns persuasive, or even pertinent. A physician need not, indeed should not, advise a patient on whether or not to abort a child. A physician’s responsibility is simply to exercise due care to provide the information necessary for the patient to make an informed decision. If physicians do this, they need not fear a lawsuit if parents bear a child of one sex rather than the other, or even a child with congenital defects. The physician will not be liable for the patient’s informed decision on the abortion question. To deny, as the majority does, any remedy for a physician’s negligently withholding information or negligently providing misinformation so immunizes the physician as to encourage the physician himself, in effect, to make the abortion decision.

Finally, the majority opinion quotes from the dissent in Becker v. Schwartz, 46 N.Y. 2d 401 , 413 N.Y.S. 2d 895 , 386 N.E. 2d 807 (1978), to the effect that if the physician did not cause the child’s handicap, that condition is an “inexorable result of conception and birth.” Id. at 46 N.Y. 2d at 417-22 , 413 N.Y.S. 2d at 904-07 , 386 N.E. 2d at 816-19 (Wachtler, J., dissenting in part). Birth is not, however, inexorable. As plaintiffs here allege, Mrs. Azzolino would have undergone an abortion had she been informed fully and accurately.

Measuring the damages reasonably attributable to the injury to Michael’s parents does not seem to me to be a difficult problem. I would hold that Michael’s parents are entitled to the extraordinary medical and living expenses attributable to the child’s Down’s Syndrome and the pain, suffering, and mental anguish this impairment caused them. As with any question involving computation of damages, properly identifying the claimant’s loss is *120 central to the task. The method I would choose to identify the loss to Michael’s parents is one based on their expectations.

According to plaintiffs’ allegations, the negligence of defendants prevented Michael’s parents from making an informed decision whether to bear him. This negligence caused a child to be born, Michael’s parents allege, that would not otherwise have been born. Michael’s parents, however, had decided to carry their child to term and become parents, not expecting that their child had Down’s Syndrome. They were prepared to incur the expenses of giving birth to and raising a child without that disorder. If they received all expenses of childbearing and childrearing when they were committed to bearing these expenses had their child been normal, they would receive a windfall. They would receive amounts not reasonably attributable to the injury of which they complain. They should receive the extraordinary medical and other expenses attributable to Down’s Syndrome but not other childbearing or childrearing expenses.

These extraordinary expenses can be calculated with reasonable certainty. Michael’s exceptional needs can be forecast from the needs of many other children like him who suffer from Down’s Syndrome. These needs give rise to certain provable expenses.

Michael’s parents also should be compensated for any mental anguish they prove they have suffered as a result of Michael’s birth with Down’s Syndrome. Although plaintiffs could introduce evidence from similarly situated parents to illustrate typical emotional burdens in cases such as this, these damages cannot be calculated with the same empirical accuracy as the extraordinary expenses they will likely incur. Jurors, nevertheless, are capable of determining intangible, nonpecuniary losses. In wrongful death actions, for example, jurors are required to evaluate damages for such intangible items as loss of society, companionship, comfort, guidance and kindly offices of the decedent. N.C.G.S. § 28A-18-2(b)(2), (4). They routinely determine pain and suffering in personal injury actions. A jury, through its shared understanding of the human condition, should be capable of awarding reasonable compensation for the pain, suffering, and mental anguish Michael’s parents experienced from his birth with Down’s Syndrome.

*121 A jury’s award if made for the mental anguish Michael’s parents suffered because of Michael’s birth with Down’s Syndrome should not be offset by the intangible benefits that will accrue to them as parents, including the love and affection of Michael. This issue is the mirror image of the issue dealt with above relating to ordinary expenses of childrearing. The Azzolinos expected to be parents, albeit of a healthy child. Just as they were prepared to incur the expenses of raising a child, they were anticipating the benefits which accompany that experience. If they must bear so much of the cost of raising Michael as they would have incurred if he were born healthy, they are entitled to the benefits they would have likewise received.

I vote to affirm the Court of Appeals insofar as it affirmed the trial court’s denial of defendants’ motion to dismiss Michael Azzolino’s parents’ claim for relief. I also conclude plaintiffs’ evidence in support of the parents’ claim is sufficient to survive a motion for directed verdict and vote to affirm the Court of Appeals’ reversal of the trial court’s directed verdict in favor of defendants on this claim.