Azzolino v. Dingfelder

*122 Justice MARTIN

concurring in part and dissenting in part.

I concur in the holding of part III of the majority opinion with respect to the siblings’ claim. In sum, the defendant Dingfelder owed no duty to them concerning genetic counselling and informed consent.

Further, I concur in the result reached by the majority with respect to Michael’s claim, but for different reasons. In its activist rush to decide what is basically a social issue: whether life can be an injury in a legal sense, the majority makes several assumptions “arguendo” which clearly are not supported by the record. First, that Dr. Dingfelder owed Michael a duty “in útero” and, second, that he breached this duty to the fetus, Michael. Although defendant Dingfelder had a duty not to negligently injure the fetus, Michael, Gay v. Thompson, 266 N.C. 394 , 146 S.E. 2d 425 (1966), he had no duty to the fetus to provide the fetus or its parents with proper genetic counselling. Dr. Dingfelder did not undertake to render professional services to Michael as a fetus with respect to genetic counselling. See Hunt v. Bradshaw, 242 N.C. 517 , 88 S.E. 2d 762 (1955). Because Dr. Dingfelder owed no duty to the fetus, Michael, respecting genetic counselling, he cannot be found liable to Michael on this basis. By relying upon unfounded assumptions, the majority has reached an issue not necessary for a principled disposition of Michael’s claim. For these reasons I agree that Michael’s alleged claim is subject to dismissal.

I cannot concur in the majority opinion as to the claim of Jane and Louis Azzolino, parents of Michael Azzolino. As the majority concedes, its opinion with respect to this claim is out of step with all jurisdictions that have decided this issue on the merits.

Although the majority tags plaintiffs’ claim as being for “wrongful birth,” it is in actuality a malpractice action based upon the doctor’s negligent genetic counselling and treatment of Mrs. Azzolino, depriving them of the ability to make an informed decision on whether to abort the fetus. See generally Note, Azzolino v. Dingfelder: North Carolina Court of Appeals Recognizes Wrongful Birth and Wrongful Life Claims, 63 N.C.L. Rev. 1329 (1985). We have a statute governing causes of action based upon *123 lack of informed consent. N.C.G.S. 90-21.13 states in pertinent part:

(1) The action of the health care provider in obtaining the consent of the patient or other person authorized to give consent for the patient was in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities; and

(2) A reasonable person, from the information provided by the health care provider under the circumstances, would have a general understanding of the procedures or treatments and of the usual and most frequent risks and hazards inherent in the proposed procedures or treatments which are recognized and followed by other health care providers engaged in the same field of practice in the same or similar communities; or

(3) A reasonable person, under all the surrounding circumstances, would have undergone such treatment or procedure had he been advised by the health care provider in accordance with the provisions of subdivisions (1) and (2) of this subsection.

The statute establishes an objective test to determine whether the patient would have undergone the procedure (here, abortion) had she been advised in accordance with the statute. Nelson v. Patrick, 58 N.C. App. 546 , 293 S.E. 2d 829 (1982). The statute codifies the standard required of health care providers concerning proper advice to a patient for the purpose of making an informed decision or consent as to medical procedures.

Plaintiffs’ evidence tended to show, and the majority concedes, that the negligence of Dr. Dingfelder proximately resulted in the birth of Michael, a Down’s syndrome child. Damages resulted to plaintiffs, which will be later discussed. This evidence made out a case for the jury and the trial court erred in directing a verdict against plaintiffs. N.C. Gen. Stat. § 90-21.13 (1981).

The majority evidently fears that by allowing plaintiffs’ claim to go to the jury, it is “creating” or “recognizing” some new cause *124 of action. Its fears are unfounded. Plaintiffs’ claim is not based upon the theory that the existence of a human life constitutes an injury. It is the negligent birth of the child that constitutes the injury. 1

Most of the recent cases of this nature have been resolved on traditional tort grounds. See, e.g., Procanik v. Cillo, 97 N.J. 339 , 478 A. 2d 755 (1984); Turpin v. Sortini, 31 Cal. 3d 220 , 643 P. 2d 954 (1982). When analyzed on this basis, it is clear that plaintiffs made out a case for the jury. Dr. Dingfelder owed plaintiffs the duty to properly advise them concerning the possibility of genetic defects and the diagnostic procedures that could be utilized to discover genetic disorders in the fetus. He negligently failed to do so. The evidence on this issue was especially strong in the light of Mrs. Azzolino’s specific request of the doctor about amniocentesis and in view of the history of the use of amniocentesis in her family. Plaintiffs testified that had they been properly advised, Mrs. Azzolino would have undergone the amniocentesis procedure and, upon disclosure of the Down’s syndrome, the fetus would have been aborted. The evidence is sufficient to support a jury finding that a reasonable person under all the circumstances would have submitted to an abortion had she been advised by the doctor in a nonnegligent manner. N.C. Gen. Stat. 90-21.13(a)(3) (1981).

The majority’s concern for fraudulent claims is unfounded. It assumes that the parents will decide which defects in the child would have led them to an abortion. It raises illusory bug-a-boos that the parents would abort because the child was the wrong sex or for some other fanciful reasons. This argument fails because it overlooks the statute, N.C.G.S. 90-21.13, that establishes an objective standard to determine whether the patient would have undergone an abortion. Recovery is not predicated on the after-the-fact whim of the parents, but upon the standard of what a *125 reasonable person would have done under the same or similar circumstances. N.C. Gen. Stat. § 90-21.13 (a)(3).

The majority’s principal difficulty in resolving this issue appears to be its reluctance to determine the proper measure of damages. If one stays with the common law tort principles, the problem is not insurmountable. Plaintiffs are entitled to recover all damages proximately resulting from Dr. Dingfelder’s negligence, just as in any tort action. Because plaintiffs planned to have a child, they intended to provide the ordinary and normal expenses of rearing a child to the age of majority. (Plaintiff husband has an equal duty to maintain and support his child. N.C. Gen. Stat. § 5043.4 (b) (1984). See Flippin v. Jarrell, 301 N.C. 108 , 270 S.E. 2d 482 (1980).) Therefore, plaintiffs cannot recover for the ordinary and normal expenses of rearing a child to its majority.

Plaintiffs are entitled to recover compensation for the costs and expense of the childbirth, Mrs. Azzolino’s pain and suffering accompanying the childbirth, the mental anguish suffered, and the extraordinary costs incurred in rearing their Down’s syndrome child. See Harbeson v. Parke-Davis, Inc., 98 Wash. 2d 460 , 656 P. 2d 483 (1983); Eisbrenner v. Stanley, 106 Mich. App. 357 , 308 N.W. 2d 209 (1981). Of course, plaintiffs have the burden to prove their damages by the greater weight of the evidence.

Such damages as plaintiffs prove would be subject to an offset or reduction by any benefits defendant Dingfelder may prove plaintiffs received from the birth of the child. Restatement (Second) of Torts § 920 (1979); Eisbrenner, 106 Mich. App. 357 , 308 N.W. 2d 209 .

Child support expenses are determined by judges and juries in North Carolina every court week. Doing so in this case would not burden the fact finder with an unusual or burdensome task. Such expenses are traditionally awarded to parents in recognition of their duty to provide support for their child. N.C. Gen. Stat. § 5043.4 (b) (1984).

Strong policy reasons support plaintiffs’ claim: tort-feasors should be responsible in damages for the harm they proximately cause; medical malpractice suits are one method of improving the delivery of proper health services; genetic counselling and treatment should not be excepted from medical malpractice actions; *126 prosecution of the parental claim demonstrates the high value our society places on the family unit, 3 R. Lee, N.C. Family Law § 241 (4th ed. 1981); such claims support parents in carrying out their duty of maintaining their children, N.C. Gen. Stat. § 50-13.4 (b).

Finally, the majority opinion appears to violate section 18 of article I of the North Carolina Constitution: “All courts shall be open; every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial, or delay.”

The majority concedes that Dr. Dingfelder owed a duty to Mr. and Mrs. Azzolino with respect to genetic counselling and treatment and that he breached that duty, proximately resulting in the birth of Michael. From this birth plaintiffs suffered damages. This constitutes a valid cause of action. Hunt v. Bradshaw, 242 N.C. 517 , 88 S.E. 2d 762 ; N.C. Gen. Stat. § 90-21.13 . The plaintiffs, having established a tort cause of action, are protected by the open courts clause of our constitution. This provision of the constitution is binding upon this Court. See Osborn v. Leach, 135 N.C. 628 , 47 S.E. 811 (1904); Bolick v. American Barmag Corp., 54 N.C. App. 589 , 284 S.E. 2d 188 (1981), aff’d, 306 N.C. 364 , 293 S.E. 2d 415 (1982). See also Pentuff v. Park, 194 N.C. 146 , 138 S.E. 616 (1927). Under these circumstances, plaintiffs have a constitutional right to a judicial forum in which to litigate their claim. The decision of the majority violates that constitutional right.

It is submitted that if the public policy of the state would protect the medical profession from such claims, that is a matter within the province of the General Assembly, not this Court. Whether the legislature can constitutionally abolish altogether a common law cause of action is an open question in this jurisdiction. Lamb v. Wedgewood South Corp., 308 N.C. 419 , 302 S.E. 2d 868 (1983). Certainly this Court should not do so.

I find that the trial court erred in allowing defendants’ motion for directed verdict as to this issue.

. Examples of parental suits for undiscovered genetic defects include Phillips v. United States, 508 F. Supp. 544 (D.S.C. 1980) (Down’s syndrome); Gildiner v. Thomas Jefferson Univ. Hosp., 451 F. Supp. 692 (E.D. Pa. 1978) (Tay-Sachs disease); Call v. Kazirian, 135 Cal. App. 2d 189 , 185 Cal. Rptr. 103 (1982) (Down’s syndrome); Schroeder v. Perkel, 87 N.J. 53 , 432 A. 2d 834 (1981) (cystic fibrosis); Berman v. Allen, 80 N.J. 421 , 404 A. 2d 8 (1979) (Down’s syndrome); Becker v. Schwartz, 46 N.Y. 2d 401 , 386 N.E. 2d 807 , 413 N.Y.S. 2d 895 (1978) (Down’s syndrome); Park v. Chessin, 60 A.D. 2d 80 , 400 N.Y.S. 2d 110 (1977) (polycystic kidney disease), aff’d sub nom. Becker v. Schwartz, 46 N.Y. 2d 401 , 386 N.E. 2d 807 , 413 N.Y.S. 2d 895 (1978).