# Petition — Hartke v. McKelway

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 983

## Text

Oe rr err ee ee

Uline Suuveme Court Ui

83-500 yfLLED

SEP 23 1983

ALEXANOER L STiEVAS,

—O\iRK

Dain ee ee «

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1983

SANDRA H. HARTKE
Petitioner.

DR. WILLIAM MCKELWAY
Repondent.

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

7637 Leesburg Pike
Falls Church, Virginia 22043
(703) 734-2810

i

QUESTIONS PRESENTED

1. Whether a woman's constitutional right
of privacy and right to prevent procreation is
infringed and interfered with, when, as a matter of
law, the woman is denied damages for child rearing
expenses in a case of failed sterilization with
resulting childbirth as a result of medical negligence

and malpractice.

2. Whether a woman's constitutional right
of privacy and right to prevent procreation is
infringed and interfered with, when, as a matter of
law, the woman is denied damages for child rearing
expenses because the mother failed to get an abortion
after a failed sterilization with resulting child
birth as a result of medical negligence and malpractice.

Page
Gpimioms Below ..ccceccecsececcvcee 2
Ne | a Te a i a a a a ee ee
Constitutional Provisions Involved ..... 2
Statement of the Case... 2 se eececsvee §
Reasons for Granting the Writ ........ 8

TUR irT. sos 6 6 «© 6 6 0 e are”

APPENDIX CONTENTS

Opinion of the United States Court of Appeals for the
District of Columbia Circuit ...... . AppA.p.l

Opinion of the United States District Court for the
District of Columbia Circuit ...... . App B.p.l

TABLE OF CITATIONS
Cases

Akron v. Akron Center for Reproductive Health, 43
CCH ha es Bull. Pp. 3336 (1983). . . . . 9, 23

Christensen v. Thornby, 192 Minn 123, 24 N.W. 620
(1934) . . . . . . . ° . -_ . . . . . - . 12

iv

Page

Cockrum v. Baumgartner, 447 N.E. 2d 385 (Ill. S.Ct.
1983) . . . . . - . . + . . . . . . . . 22

Eisenstadt v. Baird, 405 U.S. 438 (1972) ..... 20

Griswold v. Connecticut, 381 U.S. 479 (1965) . . . 11,20,21

Hartke v. McKelway, 526 F Supp97, 105 (D.C.D.C.
1981) . . . . . . . . . . . . 7 . . . . . 7

Roe v. Wade, 410 U.S. 113 (1973) . . 2. «© « « «© « « 8,9,11,21,2

Sherlock v. Stillwater Clinic, 260 N.W. 2d 169
(Minn 1977) . . . . . . . . . . . . . . . 12

ul tion: Who Pays for Br i ?
47 Fordham L.Rev. 481, 432-35 (1978). . . 14

STATUTES

28 7.8.6. §1257 (3) . . . . . . . . . . . . . . . 2

S. Constitution, Amendment IX .

S. Constitution,
S. Constitution,
S. Constitution,
S. Constitution,

S. Constitution,

Amendment VI
Amendment XIV
Amendment I
Amendment IV
Amendment V

SANDRA H. HARTKE

Petitioner.

DR. WILLIAM MCKELWAY

Repondent.

PETITION FOR WRIT OF CERTIORARI

The Petitioner, Sandra Hartke, respectfully
prays that a Writ of Certiorari be issued to review
the judgment of the United States Court of Appeals

for the District of Columbia Circuit.

-2-
OPINIONS BELOW
The opinion of the United States Court of
Appeals for the District of Columbia Circuit, appears
in Appendix A - page l.
The opinion of the United States District
Court for the District of Columbia appears in Appendix
B - page l.
JURISIDICTION

Juridiction is based on 28 U.S.C. Section
1257 (3). The order sought to be reviewed was
entered May and rehearing was denied on July 30,
1983.

CONSTITUTIONAL PROVISIONS

U. S. CONST., Amend. IX

The enumeration in the Constitution, of
certain rights, shall not be construed to deny
or disparage others retained by the people.

This Constitution, and the laws of the
United States, which shall be made in pursuance
thereof shall be the supreme law of the land,
and the judges in every State shall be bound
thereby, anything in the constitution or laws of
any State to the contrary notwithstanding...

U. S. CONST. Amend. XIV

No State shall make or enforce any law
which shall abridge the privileges or immunities
of citizens of the United States; nor shall any
State deprive any person of life, liberty or
property, without due process of law; nor deny
to any person within its jurisdiction the equal
protection of the laws.

U.S. CONST. Amend. I

Congress shall make no law respecting
an establishment of religion, or prohibitng the
free exercise thereof; or abridging the freedom
of speech, or of the press; or the right of the
people peaceably to assemble, and to petition
the Government for redress of grievances.

U. S. CONST., Amend. IV

The right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and seizures,
shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing
the place to be searched, and the persons or
things to be seized.

U.S. CONST., Amend V

No person shall be held to answer for a
capital, or otherwise infamous crime, unless on
a presentment or indictment of a Grand Jury,except
in cases arising on the land of naval forces, or
in the Militia, when in actual service in time
of War or public danger; nor shall any person be
subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against
himself; nor be deprived of life, liberty, or
property, without due process of law; nor shall
private property be taken for public use,
without just compensation.

STATEMENT OF THE CASE
This is a case of the invasion of a woman's
right of privacy not to procreate arising out of a
failed sterilization malpractice case of Sandra
Hartke against Dr. McKelway. The jury found the
doctor negligent on two counts and awarded the
plaintiff damages for child rearing expenses in the
special verdict as follows:
"Anticipated costs of raising this child
until age 18 less any benefit she received or in
the future will receive by reason of the love,

joy, happiness etc. she experienced in raising a
healthy, happy child. $200,000."

-5-

The trial court disallowed the jury's award
for childrearing expenses holding that, although such
expenses may be a recoverable item of damages in a
failed sterilization case, childrearing expenses were
not recoverable as a matter of law based on the
court's weighing of the facts in the instant case,
The court based its ruling on his personal and
private notion and a reweighing of the evidence of
whether the sterilization was obtained solely for
therapeutic reasons that is, that the plaintiff
actually wanted a child because otherwise she would
have had an abortion.

The U. S. Court of Appeals affirmed the
decision disallowing the jury verdict of $200,000 for
ordinary child rearing expenses notwithstanding the
plaintiff's argument that the denial violated the
constitutional rights of the plaintiff not to procreate.

The Court of Appeals' opinion found that
"the jury could not rationally have found that the

birth of this child was an injury to this plaintiff

-6-

and, that having a child would, on balance, be a
positive experience." (Slip opinion p. 25) and that
her decision not to have an abortion was conclusive
that the sterilization was for therapeutic reasons
and therefor child rearing expenses should be disallowed.

The District Court and the Court of Appeals
gave their opinion in light of their personal and
private notions that the plaintiff's failure to
undergo an abortion was evidence that the plaintiff's
sterilization was solely for therapeutic reasons. The
Court of Appeals disregarded as unimportant that
plaintiff was 36 years old and had a 16 year old
daughter when the second child was born; that she
specifically told the defendant doctor she "did not
want to have any more children"; that her husband
offered to have a vasectomy; that plaintiff testified
that she had a strong objection to undergoing abortions;
that she followed her treating physician's advice at
all times; that she sought to avoid having another
child and child-rearing expenses; that she objected
to another abortion because her doctor advised her

«Jo

that the health risks of abortion were as dangerous
as that of childbirth. The courts claimed these
facts were circumstantial and disallowed the award of
childrearing expenses claiming the motive for sterilization
was solely therapeutic because plaintiff chose not to
have an abortion. (Slip opinion, page 24). Hartke v.
McKelway, 526 F Supp 97, 105 (D.C.D.C. 1981).

This petition follows in due course. The
constitutional issues involved in this petition were

raised at each step of the proceedings below.

REASONS FOR GRANTING THE WRIT

THE LOWER COURTS DECIDED A QUESTION OF
IMPORTANCE IN A WAY THAT CONFLICTS WITH APPLICABLE
DECISIONS OF THIS COURT HOLDING THAT A NEGLIGENT
DOCTOR IN A STERILIZATION CASE CANNOT BE HELD RESPONSIBLE
FOR THE CHILD REARING EXPENSE OF A CHILD THAT WOULD
NEVER HAVE BEEN BEGET OR BORN BUT FOR THE DOCTOR'S
NEGLIGENCE, THEREBY DENYING A WOMAN'S RIGHT TO DECIDE
NOT TO PROCREATE AND CONCEIVE A CHILD.

This case represents still another attempt
by lower courts to overrule, circumvent and nullify

the Supreme Court's doctrine as set forth in Roe v. Wade

(410 U.S. 113 (1978).

The consequences of the lower court's
decision are that the doctor's negligence forces the
woman to:

(1) exterminate, by abortion, the fetus at
any time before birth, or (2) pay the expenses of
rearing a child caused by the doctor's negligence.

The consequence is not only unconstitutional,
it is absurd and revolting.

In the instant case, the plaintiff's zone of
privacy was the decision to be sterilized; it was her
personal right to so decide. It was the act of a
responsible woman who through the tort of a doctor

-9-
faced the unwanted choice of aborting a child or
assuming $200,000 in child rearing costs — after
having undergone the operation to specifically avoid
that precise agonizing choice and expense.

The rationale of Roe v. Wade is succinctly

Stated by Justice Powell in Akron v. Akron Center

for Reproductive Health, 43 CCH S. Ct. Bull. p 3336

(1983):

"These cases come to us a decade
after we held in Roe v. Wade, 410 U.S. 113
(1973), that the right of privacy, grounded in
the concept of personal liberty guaranteed by
the Constitution, encompasses a woman's right to
decide whether to terminate her pregnancy....
And arguments continue to be made, in these
cases as well, that we erred in interpreting the
Constitution. Nonetheless, the doctrine of
Stare decisis, )shile perhaps never entirely
persuasive on a constitutional question, is a
doctrine that demands respect in a society
governed by the rule of law. We respect it
today, and reaffirm Roe v. Wade."

The holding and logic of Roe v. Wade rewsires

this conclusion:

A negligent doctor that denies a woman
the right to prevent conception is responsible
for the child rearing expenses of the child that
would not have existed but for his negligence.

-10-

The Appeals Court postulate that their
decision is not based on logic, but on practical
politics! Politics should not control legal principles,
nor should the private and personal notions of
judges.

Judge Oberdorfer, who belatedly revealed he
had been a back door neighbor and friend to the
defendant/doctor, suggested that the plaintiff file a
motion to recuse and then the judge denied plaintiff's
motion. He held that the petitioner should have had
an abortion to avoid the costs of raising a child.

He places the blame for the doctor's negligence on
the innocent victim —- the mother who sought to avoid
conception. He claimed she had no moral objection to
abortion because she had had a prior abortion,
campletely ignoring the uncontradicted medical
testimony of two doctors that advised that the prior
abortion was performed in order to save her life.

The Court of Appeals' decision refuses to

recognize the authority of the Supreme Court, although

-ll-
they acknowledge the Roe v. Wade, supra and Griswold v.

Connecticut, 381 U.S. 479 (1965) holdings as follows:

"But when a couple has chosen not to
have children, or not to have any more children,
the suggestion arises that for them, at least,
the birth of a child would not be a net benefit.
That is their choice and the courts are required to
respect it. (U.S. Court of Appeals citing Cf. Roe v.
Wade, 410 U.S. 113, 153 (1973) (woman's right to
abortion: "Maternity, or additional offspring,
may force upon the woman a distressful life and
future.") Griswold v. Connecticut, 381 U.S.
479, 485-86 (1965) (couple's right to use
contraceptives). (emphasis added)

At the heart of this case is the Constitutional
right of privacy as guaranteed by the First, Fourth,
Fifth, Sixth, Ninth, and Fourteenth Amendments to the
Constitution of the United States which sets forth
the public policy considerations involved in this

type of situation. Griswold v. Connecticut, 381

U. S. 479 (1965).

"Maternity, or additional offspring may
force upon the woman a distressful life and
future. Psychological harm may be imminent.
Mental and physical health may be taxed by child
care. There is also the distress, for all
concerned, associated with the unwanted child,
and there is the problem of bringing a child
into a family already unable psychologically and
otherwise, to care for the child.” Roe v. Wade,
410 U.S. 113 at 153 (reh denied 410 US 959)
1973.

-]2-

The guaranteed constitutional right of
privacy and decision not to have a child is not
determined by motive or state of mind. Regardless of
motivation, a couple has the right to determine
whether they will have a child. That right is
legally protectible and need not be justified or
explained. The allowance of rearing costs is a
recognition of the importance of the parent's fundamenta
right to control their productivity. The lower
courts have endorsed a view that effectively nullified
this right by providing that its violation results in
no injury.

The lower courts rely on, with approval as
authority, upon the dicta of a Minnesota case which
has been specifically rejected by the Minnesota
Court. The Christensen v. Thornby, 192 Minn 123, 24

N.W. 620 (1934) case relied on by the lower courts
was totally rejected forty three years later by

Sherlock v. Stillwater Clinic, 260 N.W. 2d 169 (Minn

1977).

The law of Minnesota is the Sherlock case,

-]3-
not the Christensen case as the lower court leads one
to believe. The Minnesota court allowed the costs of
rearing a healthy child as damages resulting fram a
negligently performed sterilization operation.

"Ethical and religious considerations
aside, it must be recognized that such costs are
a direct financial injury to the parents no
different in immediate effect than the medical
expenses resulting fram the wrongful conception
and birth of the child. Although public sentiment
may recognize that to the vast majority of
parents the long-term and enduring benefits of
parenthood outweigh the econamic costs of
rearing a healthy child, it would seem myopic to
declare today that those benefits exceed the
Costs as a matter of law. The use of various
birth control methods by millions of Americans
demonstrates an acceptance of the family-planning
concept as a integral aspect of the modern
marital relationship, so that today it must be
acknowledged that the time-honored command to
"be fruitful and multiply” has not only lost
contemporary significance to a growing number of
potential parents but is contrary to public
policies embodied in the statutes encouraging
family planning. Recent decisions of the United
States Supreme Court, moreover, seem to suggest
that the right to limit procreation is a constitutional
dimension. See Roe v. Wade, 410 U.S. 113, 93
S.Ct. 705 34 L. Ed 2d 147 (1973) Griswold v. Connecticut,
381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed 2d 510
(1965). Campensatory damages for the cost of
rearing the child to the age of majority would
also, in our opinion, serve the useful purpose
of an added deterrent to negligent performance
of sterilization operations."

-14-
Purther misleading by the District Court and
Court of Appeals is their reliance for authority for
their decisions Wrongful Conception: Who Pays for

Bringing Up Baby? 47 Fordham L.Rev. 481, 432-35

(1978). Nothing in the Fordham article supports the
lower court's decision. The Fordham article suggests
the courts apply the Restatement of Torts "benefits"

rule. Fordham L. Rev, supra at 431-2. This approach

was followed by the jury in determining child rearing
expenses in the instant case. The Fordham article
states that the jury, not the judge, determines the
damages and any benefit offset. Fordham L. Rev.,

supra, at 433. In the instant case, the jury found
after considering any benefit offset that the plaintiff
was damaged in the net amount of $200,000.

The decision of the lower court violates the
Equal Protection Clause of the Constitution by
Characterizing the doctor as an elite class and not
subject to the liability of paying for the costs of a
child that was caused by his negligence. It is a

-15-
disguise to offer preferential treatment to absolve
doctors from liability for a tortious act and a
disguise to cover up the prejudice against contraceptions.
It is evident in their unsubstantiated statement that
“child rearing is a positive experience." The cost of
raising an unplanned child, in all other cases is on
the wrongdoer, not on the victim.

For example,

1. Rapist. The rapist, whose act results
in the birth of child, does not have a prison term
cammuted because he "gave a woman a blessing” and a
"positive experience". Such a ludricous argument
would never be attempted. The present ruling of the
lower courts would make such a decision appropriate.

2. Father of the Child. Whether born

during a marriage, or out of wedlock, the courts
routinely have stated that the father is responsible
for support. The Census Bureau, covering up to 1981
found that 4 million absentee fathers are under court
orders to pay child support. The father cannot make
the argument that the mother loves the child and that

-16-
rearing the child will be a "positive experience” and
he should thus be exempt fram paying support for that
child.
3. Runaway Fether. Fathers are not outside

of the law because they no longer see their offspring.
They are still required to support the child. It is
no excuse to hold that they are allowing the mother
the "benefit of the joy of raising the child”.

4. Paternity Cases. Each paternity issue

has as its final nature: who will financially support
the child. The dollar issue is not resolved by
deciding who loves the child once it is born. The
dollar issue is resolved by deciding who caused the
"conception to occur".

5. Delinquents. It is common knowledge that

juvenile delinquency is major problem. These children,
even when loved by a mother, present econamic and
other costs which must be borne. No juvenile court
would recognize that raising a child is always a
“positive experience” and a "joy". There are no
“guarantees” of how child will develop.

-l]7-

In a civilize’ world, no waman should be
forced to became a mother against her will. The
reason or motive for the plaintiff's decision to be
sterilized is irrelevant. It is the negligence of
the doctor and not the motive not to procreate that
should allow the mother entitlement to damages for
the costs of raising an unwanted child.

This mother — who now has imposed on her
the sole burden for child raising expense - is the
mother who did not choose abortion. Yet these courts
deny her compensation on their personal and private
notion of why she chose to be sterilized.

This decision advocates abortion. It is an
inhumane decision.

There is nothing humane in denying a mother
the wherewithal to support a child caused by a
doctor's negligence. There is nothing humane in a
decision which effectively immunizes a doctor from
his own negligence and victimizes the mother who
sought to avoid having another child.

-18-

This decision places a mother in the position
of demonstrating in a malpractice case that she does
not love her own child. A great anomaly is apparent.
The love by the mother/plaintiff for an unwanted
child is used against the mother in violation of her
constitutional rights. The love of a mother for the
child should not be a reason for denying her financial
damages. Love does not pay for raising a child.

In this case the doctor has invaded the
privacy of the individual on whether to even conceive
a child. Once he is found in error, the mother is
made to suffer and pay for the doctor's invasion of
the mother's privacy. The effect of the lower
court's decisions would mean there could be no form
of birth control (not even abstinence) because a
woman must have sexual relations only for the purpose
of having a child. As a further result, no father
would pay child support because the mother would have
the "joy and blessing" of having the child and paying
the costs of child support herself. This fundamental

-]9-
error of the Appeals Court cannot be explained away
and the mischievous consequences in a negligent
sterilization case are obvious:

The negligent doctor invades the privacy of
the individual. Pregnancy occurs. Either the mother
is forced to have an abortion, which she does not
want, or: She is forced to support a child, she did
not want to conceive.

Judge Oberdorfer and the Appeals Court
Claimed the sterilization was for therapeutic purposes,
but there was never a statement that the sterilization
was for "therapeutic purposes". The direct evidence
is that the mother said she did not want to have any
more children. Transcipt p. 105, l. 7.

The court reweighed the evidence and came to
its own "personal and private" conclusion as to the
motive for the sterilizaton.

The decision is unsound under established
principles of law and is a clear violation of constitutional

and tort law.

-20-
The lower courts decision is based on their
personal and private notions of the motive the
petitioner sought a sterilization. The lower courts

are in direct conflict with Justice Harlan in Griswold v.

Connecticut, supra:

"In determining which rights are

fundamental, judges are not left at large to

decide cases in light of their personal and

private notions. ......The inquiry is whether a

right involved "is of such a character that it

cannot be denied without violating those “fundamental

principles of liherty and justice which lie at

the base of all ow civil and political institutions."
"The secular state is not an examiner

of consciences; it must operate in the realm of

behavior, of overt actions..."

The lower courts, also, directly contradict

Justice Brennan, writing on Griswold in his Eisenstadt v.

Baird, 405 U.S. 438 (1972) opinion:

"If the right of privacy means anything,
it is the right of the individual, married or
single, to be free fram unwarranted governmental
intrusion into matters so fundamentally affecting
a person as the decision whether to bear or
beget a child.".... (emphasis added)

and contradicts Justice White's concurrence in Baird
(joined by Justice Blackmum)

"so here to sanction, a medical restriction
upon distribution of a contraceptive not proved
hazardous to health would impair the exercise of
the constitutional right."

-2l-

To deny all reasonably foreseeable consequences
is a denial of due process of law which provides that
all damages naturally flowing fram a tortious act are
allowable.

Roe v. Wade, supra and Griswold v. Connecticut,

supra established that the right to limit procreation
is a constitutionally protected right. To deny
child-rearing expenses effectively nullifies that
right by severely impairing the remedy available to a
mother who after choosing not to have a child, found
that she has a child due to a negligently performed
sterilizaton. In allowing recovery for damages for
child rearing expenses, it would only be compensating
the mother for damages that naturally flow fram the
camission of the tortious act of the doctor.

This decision below carves out an exception
to the normal duty of a tortfeasor to assume liability
for all damages proximately caused. Public policy
cannot support an exception to tort liability when
the impact of that exception impairs the exercise of

constitutional rights.

=22=

CONCLUSION

The right of privacy and right of whether or
not to procreate is guaranteed by the Constitution.
The lower courts endorse a policy that infringes and
interferes with this right by denying damages resulting
fram the foreseeable consequences of childrrearing
caused by a negligently performed sterilization
operation. The right of privacy and whether or not
to procreate is not a conditional right dependent on
motivation nor is it one which would require the
victim to have an abortion. The denial of child
rearing expenses is a denial of the mother's constitutiona
right.

The importance of this issue is emphasized
by the large number of recent appeals throughout the
country raising the same question. A notable example
is the case of Cockrum v. Baumgartner, a petition for

writ of certiorari in that case having been recently
filed in the October 1983 term of the Supreme Court.

The courts are inconsistent and uncertain about the

=23-
application of the constitutional right of privacy in

light of Roe v. Wade, supra to such cases. The lower

courts, in effect, overrule Roe v. Wade and Akron,

the constitutional right to privacy in matters
relating to having a child. This decision of the
Court of Appeals of the District of Columbia Circuit
holds that the right to have an abortion is converted
to an obligation to have an abortion in order to

avoid child rearing expenses.

Respectfully submitted,

Chines [York
VANCE HARTKE

WAYNE HARTKE

PAUL HARTKE

Hartke and Hartke

7637 Leesburg Pike

Falls Church, Virginia 22043
Telephone: (703) 734-2810

Counsel for Petitioner

APPENDICES

ole

APPENDIX A

Notice: This opinion is subject to formal revision before publication
in the Federal Reporter or U.S.App.D.C. Reports. Users are requested
to notify the Clerk of any formal errors in order that corrections may be
made before the bound volumes go to press.

United States Court of Apneals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 81-2192
SANDRA J. HARTKE
Vv.

Dr. WILLIAM MCKELWAY, APPELLANT

No. 81-2193
SANDRA J. HARTKE, APPELLANT
7

Dr. WILLIAM MCKELWAY

Appeals from the United States District Court
for the District of Columbia

(D.C. Civil No. 79-03447)

Argued September 29, 1982
Decided May 20, 1983

Vance Hartke for appellant in 81-2193 and cross-
appellee in 81-2192. Wayne Hartke also entered an ap-
pearance for appellant cross-appellee.

Bills of costs must be filed within 14 days after entry of judement. The
court looks with disfavor upon motions to file bills of costs out of time.

2

Patrick J. Attridge for appellee in 81-2193 and cross-
appellant in 81-2192.

Before MACKINNON and GINSBURG, Circuit Judges, and
McGowan, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
McGowan.

McGowan, Senior Circuit Judge: These cross-appeals
arise out of the failure of an operation to sterilize the
plaintiff, resulting in the birth of a healthy baby girl.
The primary issue for our consideration in this diversity
case is whether, under District of Columbia law, the
plaintiff would be allowed to recover from the defendant
doctor some portion of the expenses of raising the child to
majority. We are also called upon to decide whether, in
the light of certain language in our opinion in Henderson
v. Milobsky, 595 F.2d 654, 657-58 (D.C. Cir. 1978),
patients in informed-consent cases must testify that they
would not have undergone the procedure had they known
of all the materia] risks involved. Finally, we must de-
cide whether the risk of subsequent pregnancy in this case
could reasonably have been considered material to a de-
cision whether to undergo the treatment.

After a jury verdict for plaintiff on all claims, the
District Court disallowed the award of childrearing ex-
penses because it found the evidence clear that plaintiff
had sought to be sterilized for therapeutic, not economic,
reasons, and because she prized the child she bore. Hartke
v. McKelway, 526 F. Supp. 97, 105 (D.D.C. 1981). The
court also held that in haec verba testimony of causation
is not required to get the issue of informed consent to the
jury as long as there is otherwise sufficient evidence from
which the jury could infer that a patient would have de-
clined the procedure had he or she known of the risks.
Id. at 103. Finding such evidence, the court upheld the
jury’s award of damages for plaintiff's medical expenses,
pain, suffering, and mental anguish resulting from the

8

pregnancy and childbirth. Jd. The court also held that a
jury could have found that a reasonable person in plain-
tiffs’ somewhat unusual position would likely have at-
tached significance to the undisclosed risk of subsequent
pregnancy here (one to three out of one thousand). Jd.
at 102-03. We affirm.

I

In the winter of 1978, Sandra J. Hartke, the plaintiff
in this action, discovered she was pregnant and elected
to have an abortion. For reasons that are crucial to the
disposition of this appeal, and that are discussed at length
below, she also sought to have herself sterilized. Her
usual doctor recommended a hysterectomy, the complete
removal of the uterus. Hartke, then 33, thought this a
rather drastic procedure, so she approached the defend-
ant, Dr. William McKelway, for a second opinion. Dr.
McKelway recommended a procedure known as laparo-
scopic tubal cauterization, which involves blocking the
Fallopian tubes by burning them with instruments in-
serted through one or two small incisions in the abdomen.
Hartke consented to the procedure and on March 14,
1978, an abortion and tubal cauterization were per-
formed on her. Dr. McKelway subsequently examined
Hartke and termed the operation successful.

There was testimony from which the jury could infer
that prior to the operation Dr. McKelway failed to dis-
close to Hartke that there was a risk of recanalization—
where a Fallopian tube spontaneously reopens—of one to
three out of one thousand. Hartke and her boyfriend,
with whom she had lived for four years and whom she
later married, also testified that the boyfriend offered to
undergo a vasectomy if there was any risk of subsequent
pregnancy, but that McKelway told them that the proce-
dure was “a 100 percent sure operation,” and that Hartke
would not have to worry about becoming pregnant again.
Record Excerpts (R.E.' at 35; accord id. at 34.

4

Despite the surgery, Hartke again became pregnant in
September 1979. After an examination confirmed that the
pregnancy was normal—she had had a tubal or ectopic
pregnancy in 1968—she elected to carry it to term and in
June 1980 gave birth by Caesarean section to a baby girl.
At the same time, Hartke had herself resterilized by a
tubal ligation, which involves actually cutting the Fal-
lopian tubes. The record suggests that this method of
sterilization involves about the same risk of subsequent
pregnancy as cauterization. Transcript of July 23, 1981,
at 145, 148 (testimony of Dr. Falk); see also id. at 148
(risk when ligation performed at time of delivery is
greater). At the time of trial, one year after the delivery,
she had not resumed sexual relations with her husband.
Transcript of July 24, 1981, at 304 (testimony of Weddle
(plaintiff’s husband) ); see id. at 296 (testimony of Mrs.
Hartke (plaintiff’s mother) ).

Invoking the District Court’s diversity jurisdiction,
Hartke brought suit against McKelway alleging negli-
gence in the performance of the cauterization procedure,
failure to obtain informed consent, and breach of war-
ranty. At the conclusion of the plaintiff’s evidence, the
District Court granted McKelway a directed verdict as to
the breach of warranty claim; Hartke does not now com-
plain of this ruling. The jury returned a special verdict,
finding that McKelway negligently failed to cauterize
Hartke’s Fallopian tubes and that he failed to inform
her of a materia] risk of the procedure. It awarded
Hartke $10,000 in medical expenses, $100,000 for pain,
suffering, and mental anguish, and $200,000 for the
“Talnticipated costs of raising this child until age 18
less any benefit [Hartke] received or in the future will
receive by reason of the love, joy, happiness, ete. she ex-
perienced in raising a healthy, happy child.” R.E. at
1-2; 526 F. Supp. at 106 (copy of special verdict form
used).

The District Court granted in part McKelway’s mo-
tions for judgment notwithstanding the verdict and for

5

a new trial. It held that there was no evidence of medi-
cal expenses greater than $6,000 and no evidence of fu-
ture medical expenses, and ordered a new trial on this
issue unless Hartke agreed to remit $4,000. Jd. at 104.
Hartke made such a remittitur.: The court also ruled
that a new trial of the negligence claim would be neces-
sary because one of Hartke’s experts should not have
been allowed to testify on the standard of care for la-
paroscopic cauterization. Jd. at 101.2 Finally, the court
disallowed the award of childrearing expenses because the
“weight of authority does not, and the District of Colum-
bia courts would not, allow recovery of the costs of rais-
ing a healthy child in circumstances such as these where
the plaintiff sougit sterilization solely for therapeutic
reasons, and prizes the child she bore.”’ 7d. at 105.° Both
parties appealed.‘

1 Hartke objects to this order of a new trial as unfair and
unjustified. A plaintiff may not, however, appeal from a
remittitur order that he or she has accepted. Donovan v.
Penn Shipping Co., 429 U.S. 648 (1977) (per curiam).

? The District Court noted that since it upheld the jury’s
separate verdict on the informed consent issue, a new trial on
negligence would actually only be necessary if its holding on
informed consent were overtrrned on appeal. 526 F. Supp. at
102. Since we uphold the court’s ruling on the informed con-
sent issue, we need not reach Hartke’s argument that the
jury’s verdict on negligence should have been allowed to stand,
nor McKelway’s argument that he should have been granted
not a new trial but judgment notwithstanding the verdict on
that issue.

’ The District Court also ruled that if its disallowance of
the award of childrearing expenses were reversed on appeal,
a new trial would be required on the amount of those damages
because the only evidence on the question was Hartke’s testi-
mony that it had cost her about $60,000 to raise her first
daughter to the age of 17. 7d. at 105. Hartke now argues
that the jury’s verdict was reasonable and should be rein-
stated. Since we disallow the award of any childrearing ex-
penses in this case, we need not reach this issue.

* Hartke’s notice of appeal was limited to ‘‘that part of the
Order . .. relating to the disallowance by the Judge of the

II

We deal first with the judgment that Dr. McKelway
failed to disclose material risks to Hartke.

A. Materiality of the Risk

McKelway first argues that he had no duty to disclose
the risks of pregnancy in this case since no “reasonable
person in what the physician [knew] or should [have
known] to be the patient’s position would be likely to
attach significance to the risks in deciding whether to
accept or forego the proposed treatment,” Crain v. Alli-
son, 443 A.2d 558, 562 (D.C. 1982). The risk of preg-
nancy after laparoscopic cauterization was testified to be
one to three out of one thousand.

For present purposes, the crucial language in the above
formulation is “what the physician [knew] or should
{have known] to be the patient’s position.” The “pa-
tient’s position’”’ must include the patient’s medical his-
tory and other factors that might make knowledge of
certain risks particularly important to a certain patient,
acting reasonably. Here, there were two factors that
would make even a smal] risk of pregnancy unusually
dangerous for a patient in Hartke’s position. First, Dr.
McKelway knew that Hartke had a history of gyneco

Jury’s Verdict awarding Two Hundred Thousand Dollars
($200,000.00) for child rearing expenses.” Appellee/Cross-
Appellant’s Appendix at 32. Since we do not reach the other
issues now raised by Hartke, see supra notes 1, 2, & 3, we do
not decide the effect of the limited notice of appeal. Compare
Fed. R. App. P. 3(c) (“An appeal shall not be dismissed for
informality of form or title of the notice of appeal.”) and
Advisory Committee Note to 1979 Amendment of Fed. R.
App. P. 3(c) (“[SJo long as the function of notice is met by
the filing of a paper indicating an intention to appeal, the
substance of the rule has been complied with.”) with Gannon
v. American Airlines, 251 F.2d 476, 482 (10th Cir. 1957)
(Under old Fed. R. Civ. P. 73(b), “the jurisdiction of this
court on appeal is limited to the review of the judgment or
portion thereof designated.”’).

7

logical and pregnancy-related problems. She had con-
tracted peritonitis after the birth by Caesarean section
of her first child in 1964, resulting in a lengthy and
traumatic hospital stay. She had had an ectopic preg-
nancy in 1968, apparently begun while using an IUD.
She had been hospitalized numerous times for minor
gynecological procedures. Hartke testified she informed
Dr. McKelway that other doctors had advised her she
“would not make it through [another] pregnancy.”
Transcript of July 21, 1981, at 8. Second, Dr. McKelway
had before him conclusive evidence of the psychological
effect of pregnancy on his patient. He testified that she
was “extremely upset” and “very agitated” about the
pregnancy. Transcript of July 24, 1981, at 311. She
testified that she told him she thought she was going to
die from the pregnancy. R.E. at 23.

In sum, the jury could conclude that a subsequent
pregnancy would be a very serious consequence for this
particular patient, which would result possibly in physical
and certainly in psychological trauma. This was under-
scored by the testimony that Hartke’s boyfriend told the
doctor he would undergo a vasectomy instead if the
sterilization was not sure to be successful.

Moreover, less risky paths than relying on the cauter-
ization were open to Hartke. Had she been able to com-
pare the relative risks of failure, she might reasonably
have changed her mind and decided to undergo a hysterec-
tomy if, as the evidence suggested,’ the latter procedure
would have reduced the risk. Perhaps more likely given
her ultimate course of conduct, even if Hartke had

5 Compare Transcript of July 23, 1981, at 237 (Dr. Marlow)
(“surprisingly ... there have been a number of pregnancies”’
after hysterectomies) (emphasis added) and id, at 151 (Dr.
Falk) (25 abdorninal pregnancies have been reported in the
literature) with ‘d. at 148 (Falk) (risk of pregnancy after
laparoscopic sterilization is one to three or four per thousand)
and id. at 236 (Marlow) (“I know of no series in the world
where there have not be[en] failures following laparoscopic
sterilization.”).

8

agreed to the cauterization, she might reasonably have
decided to have her boyfriend undergo a vasectomy, ab-
stained from intercourse, or taken other precautions that
would reduce the risk.

In Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.),
cert. denied, 409 U.S. 1064 (1972), this court noted in
this connection, ‘“‘Whenever nondisclosure of particular
risk information is open to debate by reasonable-minded
men, the issue is for the finder of the facts.” Id. at 788
(footnote omitted). There we held that the jury could
have found a one percent risk of a very serious harm—
permanent urinary incontinence and paralysis of the
bowels—to be material to a decision whether to undergo
an operation for back pain. Jd. at 794. In Henderson v.
Milobsky, 595 F.2d 654, 659 (D.C. Cir. 1978), we held
that a .001% risk of permanent loss of sensation in a
small section of the face could not reasonably be deemed
material to a decision whether to have impacted wisdom
teeth removed. In this case, the undisclosed risk was a
1% to .8% chance of subsequent pregnancy. For most
people, this risk would be considered very small, but this
patient was in a particularly unusual position. In view
of the very serious expected consequences of pregnancy
for her—possibly including death—as well as the ready
availability of ways to reduce the risk, we agree with the
District Court that a jury could conclude that a reason-
able person in what Dr. McKelway knew to be plaintiff’s
position would be likely to attach significance to the
risk here.

B. Proximate Cause

In order for there to be liability in tort, there must be
both breach of duty—here, the failure to divulge a ma-
teria] risk—and proximate causation. McKelway argues
that the issue of whether the failure to disclose the risk
of subsequent pregnancy here proximately caused the
harm should not have gone to the jury because Hartke
had not testified that she would not have undergone the

9

treatment had she known of the risks. The source of
McKelway’s argument is certain language in our opin-
ion in Henderson v. Milobsky, 595 F.2d 654 (D.C. Cir.
1978). Discussing the earlier case of Haven v. Randolph,
494 F.2d 1069 (D.C. Cir. 1974), the Henderson court
wrote:

Haven did not, however, add anything really novei
to our jurisprudence on risk-disclosure. In result, it
merely reemphasized the claimant’s burden of show-
ing that the alleged breach of duty to disclose led to
the injury for which compensation is sought. In
Canterbury we had held that when damages are
sought for a condition attributed to a medical pro-
cedure, causation by breach of duty cannot be demon-
strated simply by the claimant’s unadorned hindsight-
statement that had he known of the risk he would not
have consented to the procedure. Haven merely
stands for the cognate proposition that when the
claimant has not even made such an assertion, the
issue of causation cannot possibly go to the jury.

595 F.2d at 657-58 (emphasis added, footnote deleted).

The District Court rejected McKelway’s argument,
finding that Henderson should not be read to require in
haec verba testimony from the plaintiff “as long as there
is sufficient evidence from which the jury could infer
that she would have refused.” 526 F. Supp. at 103. The
court held that to require such testimony in such a case
“would only set a trap for the unwary.” Z/d. Citing
Hartke’s husband’s offer to undergo a vasectomy, the
court found that there was evidence in this case “from
which the jury could find that plaintiff would have de-
clined the procedure had she been informed of the risks.”
Id.

In its ruling the District Court appears to have ap-
plied a standard of causation based on what Hartke her-
self would have done. This is inconsistent with the
standard of causation adopted by this court in Canter-
bury v. Spence, 464 F.2d at 790-91. In that case the court
held that the issue of causation should be resolved on an

10

objective basis, “in terms of what a prudent person in the
patient’s position would have decided if suitably informed
of all perils bearing significance.” Jd. at 791 (footnote
deleted). The rule was based on a distrust of the pa-
tient’s hindsight testimony that he or she would have
foregone the treatment. Jd. at 790 (The patient’s testi-
mony “hardly represents more than a guess, perhaps
tinged by the circumstance that the uncommunicated
hazard has in fact materialized.”) (footnote deleted).
Such testimony was believed to be the primary, if not
only, evidence on the question of causation in the usual
case.

The District Court’s confusion in this case—it charged
the jury under a reasonable-person standard, Transcript
of July 29, 1981, at 431—is understandable, because in
both Henderson and Haven, issued after the Canterbury
decision, this court appears to have applied a causation-
in-fact rather than a reasonable-person standard. In
Henderson, the court held that the plaintiff’s testimony
that he would not have undergone the procedure had he
known of the risk of temporary paresthesia could not be
believed because he did in fact continue the treatment
once the paresthesia had appeared. 595 F.2d at 658: see
id. at 659 (“‘We can hypothesize no more telling evidence
of what he would have done... .”). In Haven, this
court affirmed the District Court’s grant of a directed
verdict for the defendant, “primarily” for the reasons
stated in the District Court’s opinion, 494 F.2d at 1070.
The trial court’s holding rested in part on its finding
that “there was no evidence that the parents would not
have given their consent” had they known of the risks in-
volved. Haven v. Randolph, 342 F. Supp. 538, 544
(D.D.C. 1972), aff'd, 494 F.2d 1069 (D.C. Cir. 1974).

Since the trial court’s ruling in this case, however,
the District of Columbia Court of Appeals has unequivo-
cally adopted, albeit in dictum, the objective, prudent-
person standard. Citing the Canterbury case, the court
in Crain v. Allison, 443 A.2d 558, 563 n.14 (D.C. 1982),

11

wrote, “[T]he test of causation is objective. The test
is what would a prudent person in the patient’s position
have decided if informed of all relevant factors... .”°

® Despite the clarity of this statement, we confess to some
doubt as to whether the District of Columbia courts will apply
this rule in every case. After this court adopted the objective
standard in Conterbury. it and the District Court were
evidently confronted with cases in which the question of
actual causation could be decided without reference to plain-
tiffs’ speculation about what they would have done had
they known of the risks. In Henderson. for example. the
patient’s own pretriel actions made it clear that he would have
consented to the removal of his wisdom teeth regardless of
whether he was informed of the risk of paresthesia. In the
present case, the District Court found that the jury could
have found that Hartke would have avoided the risks pre-
sented had she known of them even though she did not testify
about what she would have done. In such cases, the rationale
for the prudent-person standard—distrust of resting the issue
of causation on the credibility of the patient’s hindsight testi-
mony—falls away. and courts feel pressure to return to the
more accurate causation-in-fact standard. On the other hand,
the rule one might glean from this line of cases is not entirely
logical: the standard of causation by which injuries are
judged ends up depending on the fortuity of whether pa-
tients happen to have created an evidentiary trail before
trial demonstrating what they would have done had they
known of the risks. What may eventually emerge is a stand-
ard of causation that requires the plaintiff to prove both that
he or she would in fact have avoided the risk if informed of
it ond that a reasonable person would have done so.

In any case, if the District of Columbia courts would have
anplied a subjective standard of causation in this case, the
District Court would still have been correct that in hare ver ba
testimony is not required to get the question of causation to
the jury. The statement in Henderson that seems to impose
such a requirement is based on an overreading of Haven.
Hoven said only that there was “no evidence” that the parents
would have consented, not that there was “no testimony from
the parents” to that effect. Moreover, such a requirement
would elevate such testimony virtually to the dominant posi-
tion from which Canterbury and Crain sought to remove it.
Such testimony is of little trustworthiness, so it rationally
adds little to the plaintiff’s case. To hinge the issue on this

12

Under this standard, it is no longer possible to argue
that a patient’s testimony is necessary for the issue of
causation to get to the jury. The entire motivation for
jettisoning the subjective standard of causation was dis-
trust of precisely this testimony. As the Canterbury
court pointed out, under the objective standard “(t]he
plaintiff’s testimony is relevant . . . but it would not
threaten to dominate the findings.” 464 F.2d at 791;
accord Crain, 443 A.2d at 563 n.14 (“Although the pa-
tient’s testimony is relevant on the issue of causation,
the test of causation is objective.”); Sard v. Hardy, 281
Md. 432, 450, 379 A.2d 1014, 1025 (1977) (“Under this
rule, the patient’s hindsight testimony as to what he would
have hypothetically done, though relevant, is not determi-
native of the issue.”). While it might be helpful, the jury
certainly does not need the patient’s testimony to decide
what a reasonable person in that position would have
done.”

III

The District of Columbia courts have not offered the
same kind of guidance as to the other major issue raised

testimony is therefore illogical. We agree with the District
Court that this is undoubtedly a case in which there was suffi-
cient evidence of what Hartke would have done, even with-
out testimony from her directly addressing the question. Sec
generally supra part 11(A); Hartke v. McKelway, 526 F. Supp.
at 103.

*It should be noted that in any case there is some testi-
mony in this case that could be construed as in haec verba
testimony that Hartke would have taken steps to avoid the
risk had she known of it. Hartke testified as follows:

Q. If someone offered you a million dollars for this
baby, would vou take it?

A. Sir, if I had known that the operation was not
100 percent, you could not give me a million dollars for
that, and for a million dollars—I would not take a mil-
lion dollars for my baby. but I wouldn’t go through the
hell for a million dollars either.

Transcript of July 23, 1981, at 117 (emphasis added).

13

by this appeal: whether Hartke may recover some portion
of the costs of raising to majority the child born after the
failed sterilization. Moreover, as the District Court noted,
the case law from other jurisdictions is almost evenly
divided, some courts allowing some recovery under various
formulas, others allowing no recovery whatsoever. See
Hartke v. McKelway, 526 F. Supp. at 104 & nn. 2 & 3
(citing cases).

In large part, the differences appear to revolve around
whether the child can be considered a kind of damage to
the parents. A number of courts have ruled that as a

® Cases that do not fit into the categorization outlined in
text include those that recognize that the parents may suffer
damage from the birth of a child, but find that those damages
are too speculative for calculation. See, e.g., Coleman v. Gar-
rison, 349 A.2d 8, 12 (Del. 1975); Sorkin v. Lee, 78 A.D.2d
180, 181. 434 N.Y.S.2d 300, 301 (1980). While the calcula-
tion of damages in a case like this may be difficult, we see no
significant distinction between the task here and the analogous
task of fixing damages for wrongful death, see, ¢.9., Hord v.
National Homeopathic Hosp., 102 F. Supp. 792 (D.D.C. 1952)
(death of three-day-old infant), aff'd, 204 F.2d 397 (D.C.
Cir. 1953), for pain and suffering, or for extended loss of con-
sortium, see. e.g., Hitaffer v. Argonne Co., 183 F.2d 811, 815
(D.C. Cir.) (loss of consortium due to permanent injuries).
cert. denied. 340 U.S. 852 (1950). Accord Ochs v. Borrelli.
187 Conn. 253, 260, 445 A.2d 883, 886 (1982); Troppi v. Scarf.
31 Mich. App. 240, 261-62, 187 N.W.2d 511, 521, leave to ap-
peal denied, 385 Mich. 758 (1971); Mason v. Western Pa.
Hosp., 286 Pa. Super. 354, 366-67, 428 A.2d 1366, 1572
(1981) (en banc) (Brosky~&%, concurring), aff'd. —— Pa.
—., 458 A.2d 974 (1982). Another argument that does not
relate to whether the birth of a child can be damage to the
parents is that the children involved might be adversely af-
fected when they found out that their birth was attributable
to a doctor’s negligence rather than to their parents’ desires.
or that their parents once claimed they were not worth the
cost of raising them. See, e.g., Coleman, 349 A.2d at 14 (show-
ing concern that child might view case as “founded on rejec-
tion of him as a person”); Note, 13 Val. U.L. Rev. 127, 142
(1978). We are not convinced that the effect on the child will
be significantly detrimental in every case, or even in most

14

matter of law no healthy child can ever be considered an
injury to its parents, because, as one court put it, “it is
a matter of universally-shared emotion and sentiment that
the intangible but all-important, incalculable but invalu-
able ‘benefits’ of parenthood far outweigh any of the mere
monetary burdens involved.” Public Health Trust v.
Brown, 388 So. 2d 1084, 1085-86 (Fla. Dist. Ct. App.
1980) (footnote deleted), review denied, 399 So. 2d 1140
(Fla. 1981); accord, e.g., Cockrum v. Baumgartner, 51
U.S.L.W. 2534, 2534 (Ill. Feb. 18, 1983) (“In a proper
hierarchy of values, the benefit of life should not be out-
weighed by the expense of supporting it.”). Other courts
have found that there are some cases in which the addi-
tion of a child constitutes an injury to the family. One
court provided the following explanation:

To say that for reasons of public policy contraceptive
failure can result in no damage as a matter of law
ignores the fact that tens of millions of persons use
contraceptives daily to avoid the very result which
the defendant would have us say is always a benefit,
never a detriment. Those tens of millions of persons,
by their conduct, express the sense of the community.

Tropy v. Scarf, 31 Mich. App. 240, 253, 187 N.W.2d 5i1,
517, leave to appeal denied, 385 Mich. 753 (1971); see
also Terrell v. Garcia, 496 S.W.2d 124, 181 (Tex. Civ.
App. 1973) (Cadena, J., dissenting (“The birth of [an
“‘unwanted’”’] child may be a catastrophe not only for
the parents and the child itself, but also for previously
born siblings.” |, cert. denied, 415 U.S. 927 (1974).

Though we need not finally decide the question given
our ultimate result, we suspect that allowing the plaintiff
to prove that raising a child constitutes damage is the
course of greater justice, and the one the District of

cases; at least in the absence of that, we think the parents, not
the courts, are the ones who must weigh the risk. Accord
Sherlock v. Stillwater Clinic, 260 N.W.2d 169, 176-77 (Minn.
1977).

15

Columbia courts may well adopt. Usually, of course, it is
true that the birth of a healthy child confers so substan-
tial a benefit on its parents as to outweigh the physical,
emotional, and financial burdens of bearing and raising
it; “else, presumably, people would not choose to multiply
so freely,” Troppi, 31 Mich. App. at 254, 287 N.W.2d at
517. But when a couple has chosen not to have children,
or not to have any more children, the suggestion arises
that for them, at least, the birth of a child would not be
a net benefit. That is their choice and the courts are
required to respect it. Cf. Roe v. Wade, 410 U.S. 113,
153 (1973) (woman’s right to abortion: “Maternity, or
additional offspring, may force upon the woman a dis-
tressful life and future.”); Griswold v. Connecticut, 381
U.S. 479, 485-86 (1965) ‘couple’s right to use contra-
ceptives).

Nevertheless, courts have recognized that there is an
unusual difficulty in wrongful conception cases in setting
the amount of compensation, because the extent, if any,
to which the birth of a child is an injury to particular
parents is not obvious but will vary depending on their
circumstances and aspirations. See Troppi, 31 Mich. App.
at 256-57, 187 N.W.2d at 518-19 ‘consequences of birth
from failure of contraceptives will vary widely with pur-
poses and circumstances of parents, comparing unmarried
college student with honeymooning newlyweds). The
parents may in fact have ended up with a child that
they adore and that they privately consider to be, on bal-
ance, an overwhelming benefit to their lives.* This is be-

* It has been said that courts should not allow defendants in
wrongful conception cases to thrust upon the plaintiff an un-
wanted benefit, and that therefore a plaintiff’s recovery should
not be reduced by any benefits conferred by the defendant's
tort. For example, one commentator has written:

Certainly, the birth of the child may confer certain in-
tangible emotional benefits upon the parent, but these are
benefits the parent did not ask for and quite possibly
cannot afford. The defendant can be analogized to an

16

cause the parents may have sought to avoid conception
for any of a number of reasons. They may have done so
for socio-economic reasons, seeking to avoid disruption of
their careers or lifestyle, or to conserve family resources,

officious intermeddler, and when he argues that the dam-
ages assessed against him should be offset by the un-
solicited benefits of parenthood, the resemblance is quite
striking indeed.
Kashi, The Case of the Unwanted Blessing: Wrongful Life.
31 U. Miami L. Rev. 1409, 1416 (1977).

Nevertheless, the courts that allow any recovery of child-
rearing damages have, with apparently only two exceptions.
always required that the detriments of childrearing be offset
against the benefits. See, e.7.. Ochs v. Borrelli, 187 Conn. 253.
256 n.3, 445 A.2d 883, 884 n.3 (1982); Troppi. 32 Mich. App.
at 254-57, 187 N.W.2d at 517-19; Sherlock v. Stillwater Clinic,
260 N.W.2d 169, 176 (Minn. 1977); Betancourt v. Gaylor,.
136 N.J. Super. 69, 344 A.2d 336 (1975). But see Custodio v.
Bauer, 251 Cal. App. 2d 303, 324, 59 Cal. Rptr. 463, 477
(1967) (compensation is ‘‘to replenish the family exchequer so
that the new arrival will not deprive the other members of the
family of what was planned as their just share of the family
income”); Bowman v. Davis, 48 Ohio St. 2d 41. 356 N.E.2d
496 (1976).

It may be, as one court has said, that allowing the benefits
of childrearing to reduce the damages recoverable “is nothing
more nor less than the applic: ion of an offset to reduce the
magnitude of verdicts and lessen the monetary shock to the
medical tortfeasor and his insurer.”’ Kingsbury v. Smith, 122
N.H. 237, 248, 442 A.2d 1003. 1006 (1982): cf. Palsgraf v.
Long Island R.R., 248 N.Y. 339, 352, 162 N.E. 99, 103
(1928) (Andrews, J., dissenting) (similar suggestion as to
proximate cause) (quoted infra note 16). If this is so, it is
nonetheless true that this desire to reduce the verdict is widely
shared, and reflects deeply felt values. The desire may per-
haps be based on a sense that, “even in this day of sophisti-
cated contraception and family planning,”’ couples are com-
monly faced with unanticipated pregnancies, Sorkin v. Lee.
78 A.D.2d 180, 184, 484 N.Y.S.2d 300, 302-03 (1980). Thus,
the sense of wrong that may arise in cases where the defend-
ant usurps the plaintiffs’ right to use their property as they
please, see, e.g.. Read v. Webster, 95 Vt. 239, 113 A. 814

17

see, €.g., Troppi, 31 Mich. App. at 244, 187 N.W.2d at
512 (after seven children, parents decided to limit size
of family); Sheriock v. Stillwater Clinic, 260 N.W.2d
169, 171 (Minn. 1977) (same); Betancourt v. Gayjlor,
136 N.J. Super. 69, 74, 344 A.2d 336, 339 (1975) (par-
ents sought to avoid expense of additional child); for
eugenic reasons, seeking to avoid the birth of a handi-
capped child, see, ¢.g., Ochs v. Borrelli, 187 Conn. 253,
254-55, 445 A.2d 883, 883-84 (1982) ‘semble! (prior two
children born with orthopedic defects) : or for therapeutic
reasons, seeking to avoid the dangers to the mother’s
health of pregnancy and childbirth, see, e.g., Wilezynski
v. Goodman, 73 Ill. App. 3d 51, 58, 391 N.E.2d 479, 481
(1979) (therapeutic abortion) ; Christensen v. Thornby,
192 Minn. 123, 123, 255 N.W. 620, 621 (1934) (vasec-
tomy sought because wife had been told another birth
would be dangerous to her health) .*°

(1921) (flooded land), is tempered by the knowledge that the
ability to be free of unwanted pregnancy has never been all
that secure. The benefits that the parents of an unplanned
child derive from parenthood are nonetheless real. The feel-
ing in wrongful conception cases may be that, especially in
view of the parents’ concerted efforts to avoid pregnancy, they
should recover something in addition to medical expenses and
pain and suffering for the disruption of their planning and of
their lifestyles. But to refuse to recognize the benefits of
childrearing would be contrary to all the humanistic impulses
that the law should seek to reinforce, see Cockrum v. Baum-
gartner, 51 U.S.L.W. 2534, 2534 (Ill. Feb. 18, 1983), and
would give plaintiffs a windfall with which to deal with a
problem that many couples face without compensation. What-
ever the reason, the virtual unanimity of opinion on this
question convinces us that the District of Columbia courts
would share the sense of justice evinced by the cases, and
would adopt some form of the benefits rule.

%” The terminology used here comes from Speck v. Finegold,
268 Pa. Super. 342, 348 n.4, 408 A.2d 496, 499 n.4 (1979),
aff'd. 497 Pa. 77, 489 A.2d 110 (1981). Our enumeration of
these three reasons for seeking sterilization is not intended
to exhaust the possibilities.

18

When a couple chooses sterilization solely for thera-
peutic or eugenic reasons, it seems especially likely that
the birth of a healthy child, although unplanned, may be,
as it is for most parents, a great benefit to them. In
such cases, a court will tend to feel that it is unjust to
impose on the defendant doctor the often huge costs of
raising the child, and will fear that a jury that did so
was motivated by passion or anti-doctor prejudice. Thus,
in considering the question of whether childrearing ex-
penses may be recoverable, many courts and commentators
have placed great emphasis on the couple’s reasons for
undergoing sterilization. For example, the court in the
earliest wrongful conception case, Christensen v. Thornby,
made the point most clearly:

The purpose of the operation was to save the wife
from the hazards to her life which were incident to
childbirth. It was not the alleged purpose to save the
expense incident to pregnancy and delivery. The wife
has survived. Instead of losing his wife, the plaintiff
has been blessed with the fatherhood of another child
The expenses alleged are incident to the bearing of
a child, and their avoidance is remote from the
avowed purpose of the operation.

Id. at 126, 255 N.W. at 622 ‘alternative holding). Other
cases are to the same effect. See, e.g., Betancourt, 136
N.J. Super. at 72-75, 344 A.2d at 338-39 ‘distinguishing
denial of recovery in Gleitman v. Cosgrove, 49 N.J. 22,
227 A.2d 689 (1967), on basis of eugenic rather than
economic purpose there!; Speck v. Finegold, 268 Pa.
Super. 342, 358-59, 362, 408 A.2d 496, 505, 507 (1979)
(discussing Christensen, Betancourt, and Gleitman', aff'd,
497 Pa. 77, 4389 A.2d 110 (1981); id. at 374 n.6, 408
A.2d at 513 n.6 (Spaeth, J., concurring & dissenting!
(where birth was unwanted because of risk that in the
end did not materialize—such as danger to mother or
fear of deformity—“arguably the damages should not in-
clude the expenses of raising the child”); Terrell, 496
S.W.2d at 130 (Cadena, J., dissenting) (distinguishing

19

Hays v. Hall, 477 S.W. 2d 402 (Tex. Civ. App.), rev'd,
488 S.W.2d 412 (Tex. 1972), because of eugenic purpose
there) ; Bishop v. Byrne, 265 F. Supp. 460, 463 (S.D. W.
Va. 1967) (under West Virginia law, victim was injured
py failure of therapeutic sterilization “if the condition
which [the operation] sought to avoid subsequently oc-
curred”) ; see also Comment, Liability for Failure of Birth
Contro! Methods, 76 Colum. L. Rev. 1187, 1197 (1976)
(hereinafter cited as Columbia Note] (“If contraceptive
measures fail here [where they have been used for thera-
peutic or eugenic purposes], but a normal child is born,
damages might properly be denied on the theory that no
injury was suffered.”); Recent Case, 28 DePaul L. Rev.
249, 257 (1978) (proposing use of special negligence in-
struction that would consider the purpose of the steriliza-
tion and family circumstances in determining the actual
damage caused!; Note, Wrongful Conception: Who Pays
for Bringing up Baby?, 47 Fordham L. Rev. 418, 432
(1978) [hereinafter cited as Fordham Note] (“In
wrongful conception cases, the ‘value’ of parenthood will
vary according to the individual’s reasons for wanting
the sterilization operation.’”’); Note, Wrongful Birth: A
Child of Tort Comes of Age, 50 U. Cin. L. Rev. 65, 78
(1981) (“{I)f plaintiffs in a failed sterilization case
hope to gain maximum recovery, they will have to prove
that the purpose of sterilization was to prevent preg-
nancy and not possible injury to the woman because of
pregnancy.”’).

We tend to agree that great weight should be placed on
a couple’s reason for undergoing sterilization in deciding
whether the subsequent birth of a child, on balance, con-
stitutes damage to the parents. Their reason for depart-
ing from the usual! view that childrearing is a positive
experience is in effect a calculation of the way in which
they anticipate the costs of childbirth to outweigh the
benefits. That calculation, untainted by bitterness and
greed, or by a sense of duty to a child the parents have
brought into the world, is usually the best available evi-

20

dence of the extent to which the birth of the child has
in fact been an injury to them. Thus, for example, where
a couple sought sterilization solely for therapeutic or
eugenic reasons, there is a presumption raised that the
uneventful birth of a healthy child constitutes damage to
the parents only to the extent that they experienced ab-
normal fear of harm to the mother or of the birth of a
handicapped child. Courts and juries may assume that
the parents treasure the child and that the usual expenses
of raising it will be outweighed by the benefits derived.

The presumption raised by the evidence of the parents’
reason fox seeking sterilization is, however, rebuttable.
If it can be shown that the parents’ situation has some-
how significantly changed since the sterilization—by reli-
ance on presumed infertility in making an income-reduc-
ing career change, for example, or by a sudden increase
in wealth—it may be that the original calculation of
anticipated injury has changed for better or worse. See,
e.g., Columbia Note, supra, at 1197 (“the motive for hav-
ing a vasectomy or tubal ligation is relevant as evidence
of lack of injury but should not be dispositive”) ; Fordham
Note, supra, at 485 (‘where motives for sterilization are
economic, “sudden relief from financial hardship or a re-
duction in family size” after operation may make benefits
override burdens! ; Note, Wrongful Birth Damages: Man-
date and Mishandling by Judicial Fiat, 13 Val. U.L. Rev.
127, 185 & n.66 (1978) (parent may have taken early
vetirement!.’? Generally, however, the plaintiff’s recovery

11 We note that some courts appear to treat the reason for
undergoing sterilization not as the best evidence of whether
the birth of a child constitutes damage to the parents, but as
conclusive evidence of that fact. The theory is that plaintiffs
should recover only for those harms that they sought to avoid.
E.g.. Christensen, 192 Minn. at 126, 255 N.W. at 622; sce
Columbia Note, supra, at 1197 (criticizing this per se ap-
proach). We think such an approach conflicts with the stand-
ard tort damages rule that a defendant takes his plaintiff as
he finds him, and pays for all damages proximately caused.
See, e.g., Lockwood v. McCaskill, 262 N.C. 663, 138 S.E.2d 541

21

will most accurately ~eflect the amount of injury incurred
if it is limited to paying for those risks that the plaintiff
specifically sought to avoid and that came to pass."

In jury trials, of course, it is usually the task of a
properly instructed jury to find such facts as the plain-
tiff’s motive in seeking sterilization and other facts re-
flecting the degree to which childrearing ultimately con-
stitutes injury to the plaintiff. Nevertheless, there are
always cases in which a rational jury could find that the
evidence suggested only certain facts, and in those cases
such findings must be directed by the court, notwithstand-
ing the jury’s verdict. On the issue of whether childrear-
ing constituted injury to Hartke, the District Court, as

(1964) (once breach of duty is proved, defendant is liable for
all damages suffered by plaintiff notwithstanding plaintiff’s
peculiar predisposition to amnesia). Regardless of the rea-
son for which the parents sought sterilization, there may
be persuasive evidence that the birth of a child was, at
the time of birth, damage to them; the parents may have
guessed wrong in their initial calculation or they may have
changed their minds. In the absence of intervening cause, the
defendant must pay for that damage.

Since the approach outlined in the text is merely a guide-
line to be used in evaluating the evidence in the usual case.
and not a conclusive test. it avoids placing undue weight on
what the patient told the doctor. For any of a number of
reasons, the patient may not have given the doctor all the
reasons involved or even the right ones. Also, we would not
want to encourage doctors to take extra care with persons
who provide “expensive” reasons, or to refuse to treat them
altogether.

2 This approach will be primarily useful in cases in which
the evidence of the reason for undergoing sterilization is
unambiguors and overwhelming, as it is in this case. Where
there is a mixture of motivations. and the socio-economic
reasons are at least a but-for reason for undergoing the opera-
tion, the trier of fact will have to look to more direct. but
perhaps less reliable, evidence of whether the birth of a child
constitutes damage to the parents.

22

we read its opinion, found this to be such a case. We
agree.

The evidence here is overwhelming that Sandra Hartke
sought to be sterilized for therapeutic reasons: she des-
perately feared that serious complications or even death
would result from pregnancy and childbirth. The record
is filled with testimony to this effect. For example, Hartke
testified that she told Dr. McKelway “that I didn’t want
to be pregnant, and I was terrified of being pregnant,
and I was extremely concerned about doctors and hos-
pitals. That was my overriding concern.” Transcript at
July 238, 1981, at 85-86. She also said she told him

[t]hat I did not want to go through a pregnancy,
that I was terrified of going through a pregnancy,
and I felt I was going to die, and I had been advised
by doctors that I would not make it through a preg-
nancy. I told him that I had peritonitis, which was
gangrene, of the abdominal cavity in 1964 when I
had my first daughter.

... He said that he could perform an abortion in
the hospital, and I said I didn’t want to be put in
this position anymore. I couldn’t keep coping with
the idea that I was going to die. I wanted him to
help me find a way that I wouldn’t have to keep going
back into the hospital for all these kinds of problems.
He told me that he can sterilize me.

Transcript of July 21, 1981, at 8, 14. Other like testimony
is printed in the margin.*® The testimony of Dr. Mc-

13 The other testimony from Hartke about her reasons for
undergoing sterilization or her fear of pregnancy is as follows:

Q. Will you tell the Court and jury what you told
Dr. McKelway as to the reason that you were there?

THE WITNESS: I told him that J didn’t want to be
pregnant because I had a very traumatic time in 1964

23

having my daughter, and I thought I was going to die.

Okay.
Q. .... No more crying.
A. All right.

Transcript of July 21, 1y81, at 7.

Q. Did anybody else say anything there?

A. Danny [Hartke’s boyfriend] asked Dr. McKelway
rather than have me go through the surgery, since 1 was
so terrified of the hospital and surgical procedures, it
would be easier—it would be easier for him to have a
vasectomy.

Id. at 15.

Q. At that time did you—what did you do when you
went to the hospital, as you came into the hospital?

A. I was crying, and I get very upset when I have to
go to the hosptial.

... I have.a very difficult time controlling myself in
hospitats.
Id. at 20.

Q. Did you have any fear at that time [when making
the decision not to have an abortion] ?

A. Yes.

Q. What was your fear?

A. Iam terribly afraid that I am going to die when
I am pregnant, Every time—

Td. at 32.

“Question: What conversation did you have with him
at that time?

“Answer: I didn’t want to have a pregnancy, I didn’t
want to be ever in the position of just being pregnant
again and having operations.”

Transcript of July 23, 1981, at 89 (reading from deposition).

A. . . I did not ever want to be pregnant again.
That's w hy I went [to see Dr. McKelway].

Id. at 90.

“Answer: Well, then I said, ‘I don’t want this to
happen again. I am very, very upset and very nervous
about going in the hospital, and I don’t want to go back
and would do anything. What am I to do to keep from

24

Kelway and of Hartke’s husband was to the same effect."

That the danger of childbirth remained her sole con-
cern up to the time of her pregnancy is clear from her
reasons for deciding not to have an abortion. Once the
pregnancy was determined, by means of a sonogram, not
to be ectopic, Hartke was advised that the risks of carry-
ing the pregnancy to term were about the same as the
risks of abortion. She testified that she decided not to
have an abortion because, “[h]aving decided that the
risks were equal either way, that to resterilize me Dr.

coming back and having a pregnancy every time I turn
around?’

“Answer: I said that I didn’t want to have any more
children. What method was available besides the IUD?
And he said, ‘You could be sterilized.’ ”’

Id. at 104-05 (reading from deposition).
A. Sir, 1 love my daughter.

Q. (By Mr. Attridge) She gives you no comfort
and joy whatsoever?

A. She gives me joy, but I don’t know how she gives
me comfort, No, she doesn’t help me in the middle of the
night when I am having nightmares about being preg-
nant, if that’s what you’re asking. No, that’s no comfort.

Id. at 114.

1$ See Transcript of July 24, 1981, at 304 (testimony of
Weddle) (describing Hartke’s fear of pregnancy); id. at 311-
12 (testimony of McKelway) (same); id. at 348 (McKelway)
(reading from report about her “ ‘very apprehensive’”’ state
upon admission to hospital); Transcript of July 24, 1981,
afternoon session, at 4 (McKelway) (same).

The only evidence suggesting that plaintiff had other than
therapeutic motives is circumstantial: Hartke was 33 years
old and had a 13-year-old daughter when she first sought to be
sterilized, On the other hand, she had divorced her first hus-
band and was then living in an apparently stable relationship
with the man she would eventually marry.

25

Barter was going to open me back up, then I might as
well try to carry the pregnancy to term, that Dr. Barter
would help me through the pregnancy.” Transcript of
July 21, 1981, at 32. This is the only testimony regard-
ing her reasons for carrying the pregnancy to term. It
seems clear, then, that once the extraordinary dangers of
childbirth for her were passed, Hartke shared the general
view that having a child would, on balance, be a positive
experience.”

15 In view of the result we reach, we do not need to decide
the related question of whether Hartke’s failure to have an
abortion or place the child for adoption would preclude her
from recovering childrearing expenses. Compare Troppi v.
Scarf, 31 Mich. App. 240, 260, 187 N.W.2d 511, 520 (“While
the reasonableness of a plaintiff’s efforts to mitigate is ordi-
narily to be decided by the trier of fact, we are persuaded to
rule, as a matter of law, that no mother, wed or unwed, can
reasonably be required to abort ... or place her child for
adoption.”) (footnote omitted), leave to appeal denied, 385
Mich. 753 (1971), and Sherlock v. Stillwater Clinic, 260
N.W.2d 169, 176 (Minn. 1977) (same), with Sorkin v. Lee, 78
A.D.2d 180, 181, 484 N.Y.S.2d 300, 301 (1980) (plaintiffs’
failure to have abortion barred recovery of childrearing
expenses), Ziemba v. Sternberg, 45 A.D.2d 230, 234, 357
N.Y.S.2d 265, 270 (1974) (Cardamone, J., dissenting) (in
failed abortion case, plaintiff’s failure to have another abor-
tion after pregnancy was discovered in fourth month “should
operate to bar her present claim for damages’), Columbia
Note, supra, at 1203 n.91 (reasonableness of failure to abort
could be left to jury), and Note, Judicial Limitations on Dam-
ages Recoverable for the Wrongful Birth of a Healthy Infant,
68 Va. L. Rev. 1311, 1328 (1982) (question of reasonableness
of failure to have abortion or place child for adoption is one
of fact, not of law). Conceivably, a holding based on Hartke’s
failure to mitigate damages by having an abortion might re-
duce the damages for medical expenses and pain and suffering
that McKelway must pay under our present approach, see
infra note 16. McKelway has not pressed this claim here,
however, and has in any case provided no evidence as to what
Hartke’s medical expenses and suffering would have been had
she aborted the fetus, see G & R Corp. v. American Security
& Trust Co., 523 F.2d 1164, 1176 (D.C. Cir. 1975) (defendant
bears burden of proving mitigation).

26

In these circumstances, we agree that the jury could not
rationally have found that the birth of this child was an
injury to this plaintiff. Awarding childrearing expenses
would only give Hartke a windfall.’*

1 Conceivably, the benefits of childraising could be so
weighty as to outweigh even the pain and anguish associated
with the pregnancy and childbirth. Certainly, this is true in
the usual case, since parents are apparently not deterred
from having children by the usual prenatal pain and discom-
fort. Courts that have applied the rule of offsetting benefits
against detriments in wrongful conception cases have done so
in a variety of ways, however. See generally Note, Wrongful
Birth: A Child of Tort Comes of Age, 50 U. Cin. L. Rev. 65,
79-80 (1981) (reviewing various applications of the benefits
rule). Some have allowed the benefits of childrearing to be
offset against all damages, so that it might happen that a
plaintiff would not even recover for medical expenses or pain
and suffering. See Troppi v. Scarf, 31 Mich. App. 240, 255,
187 N.W.2d 511, 518, leave to appeal denied, 385 Mich. 753
(1971). Others limit the offset to reducing childrearing ex-
penses, so that medical expenses and the pain and suffering
of pregnancy would be separately recoverable. See Sherlock
v. Stillwater Clinic, 260 N.W.2d 169, 175-76 (Minn. 1977);
cf. Thompson v. Town of Ft. Branch, 204 Ind. 152, 164-65,
178 N.E. 440, 444-45 (1931) (in wrongful death case, cost of
maintenance of son should be offset only against value of his
services, not against funeral] expenses). The Restatement
(Second) of Torts offers the narrowest offset rule, requiring
that the benefits conferred by a tortfeasor be considered in
mitigation of damages only when the benefits are to the same
“interest” of the plaintiff that was harmed. Restatement
(Second) of Torts § 920 (1979). As applied in the comments,
this would require that the pecuniary expenses of childraising
be offset only by the monetary benefits that the child brings
in, and not by the psychological or emotional rewards derived.
Id. comment b (damages to husband for loss of consortium
are not diminished by savings derived from no longer having
to support wife); see Custodio v. Bauer, 251 Cal. App. 2d 303,
323, 59 Cal. Rptr. 463, 476 (1967) (if pregnancy benefited
wife’s health or emotiona] makeup, defendant should be able
to offset that against pain and damage to health); Recent
Case, 28 DePaul L. Rev. 249, 254-57 (1978) ‘criticizing courts
for misapplying Restatement rule); Note, 13 Val. U.L. Rev.

27

127, 159 (1978) (same); Note, 68 Va. L. Rev. 1311, 1326
(1982) (same). The overwhelming majority of courts that
have invoked the benefits rule in wrongful conception cases
have rejected the strict terms of the Restatement approach.

Few of these sources provide a clear rationale for the lines
they draw. Perhaps the most logical approach, in light of the
presumptions discussed in this opinion, would be to allow the
benefits of childrearing to be offset against the normal pain
and expenses of pregnancy and childbirth, but not against any
extraordinary expenses and pain associated with the condi-
tions that moved the parents to seek sterilization. Ser supra
p. 20. This suggestion may, however, attempt to put too
fine a point on an admittedly uncertain calculation. Once
again, see supra note 9, it may be that the courts’ motivations
are most accurately stated in terms of rough justice or public
policy, like the explanation once given of the concept that
damages are limited to those proximately caused by a tort:

What we... mean by the word “proximate’’ is that,
because of convenience, of public policy, of a rough sense
of justice, the law arbitrarily declines to trace a series of
events beyond a certain point. This is not logic. It is
practical politics.

Palsgraf v. Long Island R.R., 248 N.Y. 339, 352, 162 N.E. 99.
1038 (1928) (Andrews, J., dissenting) (quoted in Mason v.
Western Pa. Hosp., 286 Pa. Super. 354, 366, 428 A.2d 1365,
1372 (1981) (en banc) (Brosky, J., concurring), aff'd.
Pa. , 453 A.2d 974 (1982)).

The District Court in this case allowed the benefits of
childrearing to be offset against the expenses thereof, but not
against the expenses and pain associated with the pregnancy
itself. 526 F. Supp. at 106 (special verdict form). We think
this was a fair place to draw the line. The latter expenses
and pain are more clearly separable from the benefits of rais-
ing a child than are the expenses of raising it. See generally
Tropm., 31 Mich. App. at 255, 187 N.W.2d at 518 (positing
the severability criterion, but concluding that “pregnancy and
its attendant anxiety, incapacity, pain, and suffering are in-
extricably related to child bearing”); cf. generally Wilczynski
x. Goodman, 78 Ill. App. 3d 51, 63, 391 N.E.2d 479, 48§
(1979) (recovery of childrearing expenses disallowed on pul-
lic policy grounds but medical expenses deemed compensable
because they have little to do with a child’s right to life) ;
Thompson, 204 Ind. at 164, 178 N.E. at 444 (in wrongful

28

IV
The judgment of the District Court is affirmed.

It is so ordered.

death action, funeral expenses and medical expenses are a
“distinct item[] of damage[],” separate from the value of lost
services). More important, if the benefits of childrearing were
offset against all damages, it might happen that the defendant
would pay no damages whatsoever, which would not provide
any disincentive to negligence. See Wilczynski, 73 Ill. App. 3d
at 63, 391 N.E.2d at 488; Mason, 286 Pa. Super. at 381, 428
A.2d at 1380 (Hester, J., concurring & dissenting) (‘ ‘im-
munity tends to foster negligence while liability tends to in-
duce care and caution’”) (quoting Flagiello v. Pennsylvania
Hosp., 417 Pa. 486, 505, 208 A.2d 193, 202 (1965) (original
reads “neglect” not “negligence’”’)). Therefore, we agree that
Hartke may cover damages for her medical expenses and
pain and suffering during pregnancy and childbirth without
regard to the benefits of childraising.

Generally for the reasons stated in the District Court’s
opinion, 526 F. Supp. at 103, we will not disturb its ruling as
to the remaining issue raised by McKelway: that he was
entitled to a new trial because of the court’s failure to reopen
discovery in order to allow him to depose one of Hartke’s
witnesses. Hartke notified McKelway of the experts she
expected to have testify almost two weeks before the close of
discovery. McKelway did not notify Hartke of his experts’
names until three months later. Under these circumstances,
there was no abuse of discretion in allowing Hartke to depose
McKelway’s experts after the close of discovery, while refus-
ing to allow McKelway to depose Hartke’s at that time.

APPENDIX B

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SANDRA J. HARTKE
Plaintiff,

Vv. : Civil Action NO. 79-3447

This case is currently before the Court on
defendant's motions for judgment notwithstanding the
verdict and for a new trial. After considering the
submissions of the parties and reviewing the record
in this case, and in particular, the transcript of
the testimony of Dr. Suryabala Goswami, the Court
concludes tht the defendant's motions must be granted
in part and denied in part, as appears more fully

below.

-2-

This is what is sametimes known as a "wrongful
conception” case. The plaintiff, Sandra Hartke,
fearful of becoming pregnant due to previous problems
such as an ectopic pregnancy, went to Dr. McKelway,
the defendant, for a second opinion on the best
method of assuring that she would not become pregnant.
It was subsequently discovered that Ms. Hartke was
pregnant at the time she consulted Dr. McKelway. On
his advice, she agreed to undergo a surgical procedure
known as laproscopic cauterization, which essentially
involves the burning of the fallopian tubes. This
procedure has a failure rate of between 1 and 3 in
1,000. Nonetheless, there was considerable evidence
that defendant told plaintiff that she need not
concern herself with the possibility of becoming
pregnant in the future once she had this operation.
In March 1978, Dr. McKelway performed an abortion to
terminate plaintiff's existing »regnancy and performed
the laproscopic cauterization in an effort to prevent

her fram becoming pregnant in the future. Despite

-3-

the surgery, in September of 1979 plaintiff again
became pregnant. She elected to carry this child to
term, and in June 1980 gave birth, via Caesarian
section, to a normal baby girl.

Plaintiff presented three theories on which
to base recovery in this case: negligence in performing
the operation, failure to obtain the patient's
informed consent to the procedure performed, and
breach of a warranty that plaintiff would not became
pregnant. At the close of plaintiff's case, the
Court granted the defendant's motion for a directed
verdict on the warranty claim, holding that as a
matter of law plaintiff had failed to provide sufficient
proof that defendant had guaranteed favorable results
in view of the fact that plaintiff signed consent
forms which stated that no guarantee of favorable

results was given. See Sard v. Hardy, 379 A.2d 1014

(Ma 1977). The Court denied defendant's motions for
directed verdict on the negligence and informed

asain
consent counts. The case was submitted to the jury
with a special verdict form ( a copy of which is
attached). The jury found for plaintiff on both
remaining theories, and awarded her $310,000 in
damages, broken down as follows: $10,000 for medical
expenses; $100,000 for pain, suffering, and mental
anguish; and $200,000 for the future cost of raising
the child less the benefits of the child's comfort
and society. Defendant renews his motions for directed
verdict here, as well as moving for new trial on
several grounds. In addition, he asks for judgment
on the ground that plaintiff has not stated a claim
for relief, and maintains that damages are not
recoverable as a matter of law for the costs of
raising a healthy child. The Court will address these
contentions in turn.

I. Failure to State a Claim

Defendant urges that the Court should not
recognize a cause of action where an unplanned
conception results fram defendant's tortious conduct,

-5-

but should wait for the legislature to create such a
Claim. While the District of Columbia courts have
yet to confront the issue, the weight of authority in
other jurisdictions clearly supports the existence of
such a claim as a matter of cammon law. See cases
cited in Section IV, infra. The cases cited by
defendant as denying recovery altogether for wrongful
conception in fact deal only with whether certain
elements of damages are recoverable, such as the cost

of raising a child. See Coleman v. Garrison, 349

A.2d 8 (Del. 1975); Terrell v. Garcia, 496 S.W. 2d

124 (Tex.Civ. App. 1973), as clarified in

Garwood v. Locke, 552 S.W. 2d 892 (Tex. 1977). Since

all recent cases appear to contemplate same sort of
recovery in tort for negligent failure of a physician
to sterilize effectively, the Court concludes that
the District of Columbia courts would be likely to
follow the clear weight of authority and recognize

such a cause Of action. See Julander v. Ford Motor

Co., 488 F2d 839 (10th Cir. 1973) (upholding district

=-6-
court determination that Utah courts would follow the
weight of authority in adopting strict products
liability, despite the fact that they had not yet
done so). This is not a case like the collateral

estoppel issue in Gatewood v. Fiat, S.p.A., 617 F.2d,

820,826 n.11 (D.C. Cir. 1980) where the D.C. courts
had addressed the issue and had not yet adopted the
trend of the case law; rather, this issue is like the
jursidictional issue in that case, where there was no
D. C. case law and the court therefore looked to the
law of other jurisdictions. Id. at 824-25.

II. Negligence Claim

In support of his claim that he is entitled
to judgment as a matter of law on the negligence
Claim, defendant points to the general rule that
expert testimony is required to support a claim that
defendant's conduct did not meet the applicable
Standard of care. Robbins v. Footer, 553 F.2d 123

(D.C. Cir. 1977). He also points to the lack of

qualifications of plaintiff's only expert, Dr.

~
Goswami, wno is not, as the defendant is, Board
certified in obstetrics and gynecology, but rather is
a certified Family Practitioner. In response,

plaintiff cites the case of Baerman v. Reisinger, 363

F.2d 309 (D.C. Cir. 1966), which holds generally that
a physician is competent to testify even though not a
specialist in the field of which she speaks, and that
specialization goes to weight rather than admissability.

Dr. Goswami was invited by plaintiff and
admitted by her then doctor (not the defendant) to
witness the Caesarian delivery. During this procedure,
she literally observed with her eyes the fallopian
tubes which had been the object of the unsuccessful
sterilization attempt by defendant.

Dr. Goswami received her medical training in
India and Great Britain. She did not specialize in
obstetrics and gynecology, serving only one year in
residency in that field, while three years are
required for certification. Transcript of the Testimony
of Dr. Goswami at 116-17. While Dr. Goswami has

-8-
had considerable practice as a result of her Family
Practice in the United States from 1971 until present,
she has performed no surgical procedure since then.
Id. at 217. She has never performed the operation in
question, has never assisted in the performance of
such an operation, and has observed such operations
on only two occasions. The Court orginially granted
plaintiff's motion to qualify Dr. Goswami as an
expert.

This decision rested on her training and
experience in gynecology and obstetrics in India,
England and at the University of Maryland. Her
uncontradicted testimony that she performed several
hundred tubal ligations, id. at 49, coupled with her
experience and training in the United States qualified
her to testify as to the standard of care in respect
of conventional tubal ligations by surgery —actual
cutting of the tube. Any difference between her
opinion as to the correct standard and the opinion of
other physicians with better or more elegant qualifications
would be for the jury. But the evidence as it unfolded

-9-

indicated that her knowledge of the standard of care
in respect of tubal ligations by separation of the
fallopian tubes did not extend to knowledge of the
Standard of care for sterilization by the laproscopic
cauterization procedure. She had no training or
experience in that procedure. lLaproscopic cauterization
is relatively new, and the evidence revealed significant
differences between the two procedures. Her reading
of literature and conferring with other physicians on
the eve of trial did not qualify her to testify about
the standard of care-for laproscopic cauterization.
Specifically, she was not able to address with any
authority the question of whether the relevant
standard of care contemplated the sterilizing effct
of cauterizing and thereby congealing a fallopian
tube without actually severing it. In fact, she
testified that a major reason for her conclusion that
there was negligence was that the result was unfavorable.
Id at 155-56.

Upon reflection, the Court concludes that

-10-

although she was competent to testify about her
observations, Dr. Goswami was not a qualified expert
on the standard of care for laproscopic cauterization
procedures. While Baerman holds that a doctor need
not be a specialist to testify, it does not remove
the requirement that, in order to give an opinion on
whether the defendant complied with the applicable
standard of care, the witness must be familiar with

that standard. Robbins v. Footer, supra. The trial

court must weigh the qualifications of the witness
and determine whether or not she is qualified to

express an opinion on the subject. Sher v. DeHaven,

199 F. 24 777, 782 (D.C. Cir., 1952) cert. denied,

345 U.S. 936 (1953). Although her eyewitness account
of her observations in the delivery room were essential
and admissible, the Court not concludes that Dr.
Goswami was not campetent to express an opinion on

the defendant's due care of lack thereof, and should
not have been allowed to testify about the standard

of care for laproscopic cauterization.

-ll-

Moreover, the Court is convinced that its
failure to prevent Dr. Goswami fram testifying
concerning the standard of care was not harmless.
Except for the testimony of Dr. McKelway, who was
called by the plaintiff and testified that the
standard of care required cauterization of both left
and right fallopian tubes, Dr. Goswami was plaintiff's
Only expert. The Court cannot conclude that the jury
necessarily would have reached the same result on the
negligence issue without the benefit of her opinion.
In addition, much of Dr. Goswami's testimony was to
the effect that it violated the standard of care for
defendant to perform the laproscopic cauterization
technique on a patient with a history of peritonitis
and on a patient more than twelve weeks pregnant.

But the dangers of such violations of the standard of
care did not materialize in this case and are concededly
causally unrelated to the plaintiff's pregnancy. The
Court originally admitted this evidence on the ground
that the jury was entitled to know the context in

which the operation occurred. It now appears to

-12-
the Court that the prejudicial effect of this "negligence
in the air" testimony outweighed its rather minimal
probative value, and that it should have been excluded.
This is particularly so where its importance was
seemingly highlighted by what the Court has not
determined to be an unqualified witness. Accordingly,
the jury's verdict that defendant was negligent
cannot stand.

The Court concludes nonetheless that there
was sufficient evidence of negligence, even without
Dr. Goswami's opinion, to create an issue for the
jury so that defendant's motion for a judgment
notwithstanding the verdict must be denied. The
plaintiff called the defendant, Dr. McKelway, and he
testified that the standard of care requires same
cauterization of the tube so that failure to cauterize
one of the plaintiff's fallopian tubes would violate
the standard of care. In addition to Dr. McKelway's
Standard of care testimony which required submission
of the case to the jury, experts called by the

-13-

def« ise confirmed that the standard of care required
substantial cauterization of each tube. There was
evidence, albeit weak, fram which the jury could have
concluded that Dr. McKelway failed to cauterize the
right tube at all. Dr. Goswami testified that when
she observed the plaintiff during her delivery by Dr.
Barter in June 1980, plaintiff's right fallopian tube
was intact. Even though Dr. Goswami was incompetent
to testify concerning the standard of care, she was
campetent to testify concerning what she observed
during plaintiff's subsequent delivery, and that
testimony was sufficient to create a jury issue.
Defendant's witnesses did not succeed in rebutting
plaintiff's evidence of negligence to such an extent
that the Court could find that no reasonable jury
could have found Dr. McKelway negligent. Accordingly,
defendant's motion for judgment notwithstanding the
verdict for failure to prove standard of care must be
denied.

In view of the foregoing, if the only issue
decided by the jury were negligence, the setting

-14-
aside of the finding and verdict would obviously
require a new trial. In this case, however, the
Court obtained from the jury a special verdict which
found for the plaintiff on both the negligence and
the informed consent counts. Since the Court concludes
that the informed consent verdict is sound, and since
that verdict is sufficient to support the damages
awarded, a new trial on the negligence count is
unnecessary. Many courts have noted that where a
general verdict is returned, a new trial must be
ordered if either count must be set aside. This
danger was avoided here by use of a special verdict,
which, as stated by the Court in Mueller v. Hubbard

Milling Co., 573 F2d 1029, 1038 n. 12 (8th Cir.

1978), "will often obviate the necessity of deciding
difficult legal questions which are not essential to
an appropriate disposition of the controversy."

See also King v. Ford Motor Co., 597 ld 436, 439 &

n.2. (5th Cir. 1979); Brown, Federal Special

Verdicts: The Doubt Eliminator, 44 F.R.D. 245 (1967).

The two counts were clearly separated fram each

~ -15-
other in the instructions, which characterized the
informed consent count as "another issue" after the
negligence instructions.

As discussed below in Section III, expert
testimony is not necessary or even particularly
relevant on the issue of whether or not the physician
adequately disclosed the risks of the operation to
the patient. Canterbury v. Spence, 464 F.2d, 772,

791-92 (D.C. Cir. 1972). While expert testimony is
required to establish what the risks are — id.-

- Dr. McKelway himself provided that information.
The Court is satisfied that Dr. Goswami's testimony
did not prejudice the defendant on the informed
consent count, and that it is therefore unnecessary
to order a new trial on the negligence count. Should
the Court of Appeals reverse this Court's decision on
the informed consent count, however, then a retrial
on negligence would be in order. Accordingly,
defendant's motion for a new trial is denied. If the
Court of Appeals reverse this Court's judgment on the

informed consent count, defendant's motion is granted.

-16-
III. The Informed Consent Clain

Defendant makes essentially two attacks on
the finding of the jury that he did not adequately
inform her of the risks of pregnancy of this procedure,
estimated by various witnesses at between 1 and 3 in
1,000. First, defendant contends that in view of
plaintiff's strongly expressed desires to be sterilized
and the risks associated with various alternatives,
reasonable persons could only conclude that the risks
involved here were immaterial. Even though the risks
were small, however, the defendant was on notice that
plaintiff had a great anxiety about any possible
future pregnancy, and indeed could possibly have died
from a future pregnancy. In the District of Colimbia,
the relevant standard of materiality is expressed in
Canterbury v. Spence, supra, at 787: "a risk is
material when a reasonable person in what the physician

knows or should know to be the patient's position,
would be likely to attach significance to the risk or
cluster of risks in deciding whether or not to forego

-l7-

the proposed therapy." There is ample evidence fram
which a jury could conclude that a reasonable person
in plaintiff's position would have considered important
even a relatively small chance of pregnancy.

Defendant's second contention on this issue
is that no proximate causation has been shown as
there is no evidence that plaintiff would have
foregone the surgery had she been informed of the

risks. He points to a statement in Henderson v.

Milobsky, 595 F. 2d 654, 658 (D.C. Cir. 1978) to the
effect that where claimant has not asserted that had
she known of the risk she would not have undergone
the treatment, the issue of causation cannot go to
the jury. Defendant asserts that plaintiff never
stated in her testimony that she would have avoided
the operation had she known of the risks. This Court
does not interpret Henderson, supra, to require that
plaintiff make this assertion in haec verba, as long
as there is sufficient evidence fram which the jury
could infer that she would have refused. There is

-18-
ample evidence to that effect here. For example,
plaintiff's husband testified that had he known of
the risks of pregnancy, he would have undergone a
vasectomy. To require plaintiff herself to make this
assertion in a case such as this when her husband
testifies to this effect in her presence would only
set a trap for the unwary. The Court is satisfied
that there was evidence fram which the jury could
find that plaintiff would have declined the procedure
had she been informed of the risks. Defendant's
motion for judgment notwithst°nding the verdict on
the informed consent count is denied.

Defendant raises a number of contentions of
prejudice from plaintiff and her counsel's conduct
during the trial which are relevant to a motion for
new trial on both counts. These include allegations
that plaintiff's crying on the witness stand, questioning
about defects in hospital records, statements about
absent witnesses and various other allegedly inflammatory
remarks made by plaintiff's counsel prejudiced the

-]19-
jury against the defendant. The Court is satisfied
that any prejudice was cured by instructions to the
jury to disregard such statements. In addition,
defendant's counsel himself stated in closing argument
that plaintiff was blackmailing defendant and that
plaintiff and her family only wanted money, statements
with at least as much prejudicial potential as any
made by plaintiff. Defendant's motion for new trial
on these grounds is denied.

Finally defendant argues that he is entitled
to a new trial because he was not allowed to reopen
discovery to depose Dr. Goswami. The Court notes
that defendant was informed that Dr. Goswami was a
potentital witness some two weeks before discovery
ended and did not seek to depose her then. Despite
this fact, the Court allowed defendant an extensive
voir dire, in the nature of a deposition, before Dr.
Goswami testified. The Court is satisfied that no
prejudice to the defendant on the informed consent
issue resulted fram his inability to depose Dr.

-20-

Goswami, and since the Court has decided to set aside
the negligence verdict should the informed consent
judgment be reversed, it is unnecessary to decide
whether defendant was unduly prejudiced on the
negligence count.

Accordingly, defendant's motion for new
trial on this ground is also denied.

IV. Damages

The Court was aware before the trial of this
case began that there is a sharp division of authority
among various courts on the issue of what damages are
recoverable in wrongful conception case such as the
present ry Accordingly, the court submitted the
case to the jury with a special verdict form which
required the jury to separate the damages awarded
into medical expenses; pain, suffering, and mental
anguish; and the cost of raising te child less an

1
Although many of the case cited infra involved

wrongful failure to abort, the issues are essentially

the same.

-2)]-
offset for the benefits of the child's comfort and
society. In so doing, the Court intended to avoid a
possible retrial in its determination of what damages
were recoverable in a case such as this were later
reversed.

Defendant challenges the sufficiency of the
evidence with respect to all three elements of
damages. On the medical expense portion, defendant
points out that there is no evidence to support
expenses greater than $6,000, the amount claimed in
plaintiff's closing argument. Plaintiff claims that
the jury may have estimated future medical expenses
to arrive at the $10,000 figure. However, there is
no evidence to support a finding of future medical
expenses. Accordingly, the Court will grant defendant's
motion for new trial limited to the amount of plaintiff's
medical expenses, unless plaintiff agrees to remit
$4,000.

-22-

Defendant claims that the amount of $100,000
for pain, suffering, and mental anguish is excessive.
While the figure is high, the Court concludes that it
is not so excessive as to require the Court to set it
aside, in view of plaintiff's testimony concerning
her fear of pregnancy and the obvious effects which
her experience has had on her, which were corroborated
by several of plaintiff's witnesses. Defendant
himself admitted that plaintiff was very frightened
about the possibility of pregnancy when she came to
him for advice on how best to avoid it. The Court
will not disturb the jury's verdict on this issue.

Finally, defendant objects to the awarding
of costs of raising plaintiff's healthy child as an
element of damages. On the issue of whether such
damages are recoverable, the courts are almost evenly
divided. Approximately, one-half of the courts which

have reported such cases award such damages, reasoning

aZ%~
that plaintiff should be compensated for all damages
which result fran the defendant's tort and the burden
of any uncertainty in damages should fall on the
alae Others deny recovery, holding that
public policy dictates a finding that the costs of
raising a child are offset by the benefits of its
society and comfort, and that at any rate it is
unjust to place on the physician the entire cost of
raising the child while plaintiff retains all of the
benefits, particularly in view of the plaintiff's

2

See Cockrum v. Baumgartner, 50 U.S.L.W. 2040
(Ill App., July 2, 1981); Mason v. Western Pa. Hosp.,
428 A.2d 1366 (Pa. Super. 1981); Anonymous v. Hopsital,
398 A.2d 312 (Conn. Sup. 1979); Sherlock v. Stillwater
Clinic, 260 M.W. 2d 169 (Minn. 1977); Rivera v State,
404 N.Y.S. 2d 950 (Ct. Cl. 1978); Troppi v. Scarf,
187 N.W. 2d 511 (Mich. App. 1971); Custodio v. Bauer,
59 Cal. Rpt. 463 (Cal. App. 1967).

-24-

choice to keep the child rather than opt for abortion
or adoption. . Most which allow recovery of child-
rearing costs require an offset of the child's
society and PERT Oo

There does not appear to be any indication
in the case law of which view is likely to be adopted
by the District of Columbia courts. The question,

not yet decided in the District of Columbia or at

3
See Sorkin v. Lee, 434 N.Y.S.2d, 300 (App. Di.

2980), appeal dismissed, 53 N.Y. 2d 797 (1981);

Public Health Trust v. Brown, 388 So. 2d, Berman v.
Allan, 404 Ald 8 (N.J. 1979); Wilczynski v Goodman,
391 N.E. ld 479 (Ill. App. 1979); Jacobs v. Theimer,
519 S.W. 2d, 846 (Tex. 1975); Coleman v. Garrison.
349 A.2d.8 (Del. 1975); Reich v. Medical Protective
Co., 219 N.Y. 2d 242 (Wisc. 1974).

4

See Troppi v. Scarf, supra; Restatement (Second) of
Torts §920. See verdict form attached hereto.

=-25=
common law in Maryland, is closely balanced and
difficult. Om ome hand there is something inherently
distasteful about holding a child is not worth what
it costs to raise it, and samething seemingly unjust
about imposing the entire cost of raising the child
on the physician, creating in the words of one court
"a new category of surrogate deieoiiaec® On the other
hand, the admitted uncertainty of damages should not
work to the plaintiff's disadvantage, as the normal
rule is to place the burden of uncertainty on the

wrongdoer. See, e.g., Story Parchment Co.v. Paterson

Parchment Paper Co., 282 U.S. 555 (1931). And it

seems wrong to hold that a child is, as a matter of
law, worth the costs of raising her when the parents
have chosen differently in deciding against more
children.

However these factors would be balanced in
the more difficult case where the plaintiff originally

5
Reich v. Medical Protective Co, supra, at 244.

-26-

sought sterilization for economic reasons, that is
not this case. The evidence is clear that plaintiff
sought sterilization because she had previously
suffered an ectopic pregnancy, and feared for her
life should she become pregnant again. There is not
evidence to support the view that she sought to avoid
the expenses of raising another child. Plaintiff is,
of course, entitled to be compensated for the physical
and mental anguish she suffered as a result of
defendant's tort. To allow her to recover in addition
the costs of raising this child would be to give her
a windfall.

This conclusion is supported by the fact
that once she learned that this pregnancy was a
normal pregnancy rather than an ectopic one, plaintiff
chose not to have an abortion, though during her
previous pregnancy she had chosen to terminate the
pregnancy. This indicates that her decision to keep

-27-
the child was not the result of principled objections

to abortion. This, along with the plaintiff's testimony

that she now loves the child and that it is a source
of pride and joy to her and her family, convinces the
Court that defendant's wrong against plaintiff
consisted in imposing the pain, suffering, and mental
angush of @ ~“egnancy on her, not in imposing the
costs of a healthy child greatly cherished by its
mother. See Christensen v. Thornby, 255 N.W. 620
Min.. 1934), distinguished on this ground in Troppi
v. Scarf, 187 N.W. 2d 511, 514 (Mich. App. 1971);
Note: Wrongful Conception: Who Pays for Bringing Up

Baby? 47 Fordham L. Rev. 418, 432=35 (1978). Accordingly,

this Court concludes that weight of authority does
not, and the District of Columbia courts would not,
allow recovery of the costs of raising a healthy
child in circumstances such as these where the
plaintiff sought to be sterilization solely for
therapeutic reasons, and prized the child she bore.

=28-
The case where sterilization is sought for econamic
reasons is not before the Court.

Finally the Court must address the issue of
what action to take should the Court of Appeals
reverse this last determination. See Fed. R. Civ.

p. 50 (c). There is little, if any, support for the
$200,000 figure which the jury found to be the cost
of raising the child less the offest for benefits.
Plaintiff testified that the costs of raising her
previous child, born in 1964, was approximately
$60,000. In act, in her pretrial brief, plaintiff
estimated her cost of raising this child at $60,298.
Plaintiff now argues that the jury could have made a
rough adjustment for inflation and arrived at a
figure of $200,00 based on seventeen years inflation
(actually the relevant amount of time is sixteen
years: the child is already over one year old).
Plaintiff presented no econamist, as is the practice
in wrongful death case, nor was there evidence of

a

-29-

reasonableness of the claimed amounts. While defendant
could have cross-examined the plaintiff or presented
his own evidence on this issue, the Court is nonetheless
left with the conviction that the amount of the
verdict here is excessive. The interests of justice
would best be served, this Court concludes, by a new
trial on this issue so that both sides can present
evidence on the actual expected costs of raising a
child born in 1980, rather than by permitting the
existing verdict, which is necessarily found on
speculation, to stand.

Accordingly, in an accompanying order, the
court has vacated the $310,000 verdict rendered by
the jury in this case. A new trial has been ordered
on the issue of the amount of plaintiff's medical
expense, unless plaintiff agrees to remit the excess
$4,000. When the amount of the those expenses are
determined, judgment for that amount plus $100,000
for pain, suffering, and mental anguish will be

-30-
entered. Defendant's remaining motions for judgment
notwithstanding the verdict and for new trial are
denied, except that should the Court be reversed on
the informed consent count, then a new trial is
granted on the negligence count, and should the Court
of Appeals reverse this Court's determination that
the cost of raising plaintiff's child is not recoverable,
then a new trial is granted limited to the amount of
those damages.

/signed Lous F. Oberdorfer
UNITED STATES DISTRICT JUDGE
October 7, 1981

-3l-

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action NO. 79-3447

ORDER

For the reasons stated in the accompanying
Memorandum, it is this 7th day of October, 1981,
hereby:

ORDERED: That the judgment on the verdict
entered in the above captioned case is hereby VACATED,
and the motion by the defendant for a new trial is
granted, limited to the issue of the amount of
plaintiff's medical expenses, unless the plaintiff,
within twenty (20) days after service of this order
shall file a remittitur with the Clerk of this Court
remitting the sum of $4,000.00. Upon filing of said
remittitur, counsel for the defendant shall submit a

-32-

form of order granting judgment to the plaintiff in
the amount of $106,000.00. And it is further

ORDERED: That defendant's remaining motions
for judgment notwithstanding the verdict and for new
trial are hereby DENIED, except that, should this
Court's determiation tht the informed consent determination
of the jury is valid be reversed, then defendant's
motion for new trial on the issue of negligence is
GRANTED, and should this Court's determination that
damages for the cost of raising plaintiff's child are
not allowable be reversed, then defendant's motion

amount of such cost.

/signed Louis F. Oberdorfer

UNITED STATES DISTRICT JUDGE

for new trial is GRANTED, limited to the issue of the |

=-33-
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SANDRA J. HARTKE
Plaintiff,

Civil Action NO. 79-3447

Has the plaintiff proved that the defendant
negligently failed to cauterize her fallopian tubes?

Yes | x |

yes Se

Has the plaintiff proved that pregnancy was
a material risk following the procedure she underwent,
that the defendant failed to inform her of this risk
and that had a reasonable person in her ciramatences
been informed, that person would not have consented
to the procedure.

Yes ee

—34-

If your answer to both questions is "No”
proceed no further and inform the Court you have
reached a verdict.

If your answer to either or both questions
is "Yes", proceed to the next question.

Enter the amount of damages you feel that
plaintiff proved she sustained for any or all of

the following:

Expenses $10,000.00

Pain, suffering and mental
anguish $100,000.00

Anticipated costs of raising this child

until age 18 less any benefit she received

or in the future will receive by reason of

the love, joy, happiness, etc., she experienced
in raising a healthy, happy child $200,000.00

Total damages $310,000.00

—S
lt eee

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0496%3A1. Public record. Not legal advice.