Morris v. Sanchez

HODGES, Justice,

concurring in part and dissenting in part, joined by SIMMS, Justice.

I concur in the Court’s conclusion that a plaintiff in a medical malpractice action for a failed sterilization may not recover the costs of raising the unplanned child as an element of damages. I disagree, however, with the Court’s determination that there is a cause of action for a failed sterilization which results in the birth of a normal, healthy child. Because I would not recognize the tort of a failed sterilization, I respectfully dissent.

In my view, the birth of a healthy, albeit unwanted child, is not a wrong even if negligent conduct contributed to the eventual birth. Where is the injury and resulting damages in the birth of a normal, healthy child? I find none. And if there are some, I would not want to speculate. For it would appear to me, the future benefits these parents will later receive from this child will far exceed their present imaginary damages. The birth of a normal, healthy child is a blissful, not an injurious or damaging event.

I would adopt the minority position as espoused by the Nevada Supreme Court in Szekeres By Szekeres v. Robinson, 715 P.2d 1076 (Nev.1986). This court held a negligence action may not be maintained unless one has suffered injury or damage, and the birth of a normal, healthy child is not legal compensable damages in tort.

*190 The Nevada court further stated that if there are no damages, the negligence is not actionable under the principles of common law negligence, citing Restatement (Second) of Torts, § 328A (1965). Similarly, under Oklahoma law, a negligence action may not be maintained unless the plaintiff has sustained injury inasmuch as injury is an essential element for the claim. Sloan v. Owen, 579 P.2d 812, 814 (1977). Because normal birth is not a civil wrong, it cannot give rise to tort liability in negligence. I recede from the Court’s recognition of a negligence action for the reason that public policy compels the conclusion that a parent cannot be said to be damaged by the birth of a normal, healthy child.

I, nevertheless, acknowledge the realities of a plaintiff’s predicament in this type of case. In my view, the bar against a negligence action does not absolve the defendant from all liability under any theory of law. Rather, I would recognize the viability of a contract action. Cf. Seanor v. Browne, 154 Okl. 222 , 7 P.2d 627 (1932). In discussing contract liability the Szekeres case explained:

“[I]f a physician or someone else is found to have contracted to prevent a pregnancy from occurring, certainly it was within the contemplation of the contracting parties that failure to carry out the process in the manner promised would result in an award, at least, of the costs of medical, surgical and hospital care associated with the failed surgery. In such a case damages could be awarded in accordance with what was contemplated by the parties at the time the contract was made.” Id. at 1079.

In summary, human life has always been accorded a special place in our jurisprudence. Because the birth of a child is not a wrong to be legally redressed I cannot find, in light of long-standing common law principles of tort law, the existence of a negligence action. In so concluding, however, I would permit a breach of contract claim, disallowing damages flowing from the birth of a normal child.

I therefore respectfully dissent from the portion of the Court’s opinion which recognizes the viability of a medical malpractice action for a failed sterilization.