Opinion
No. CV 08 6003355 S
January 15, 2010
MEMORANDUM OF DECISION RE MOTIONS TO STRIKE (#117 AND 127)
These motions to strike raise an issue yet to be decided by Connecticut appellate courts: whether Connecticut law recognizes a cause of action by or on behalf of an infant against a healthcare provider for wrongfully causing his or her birth, or, as generally termed an action for "wrongful life." For the reason set forth below, the court concludes that such an action is not permissible under Connecticut law and therefore grants the motions to strike.
I. FACTUAL AND PROCEDURAL HISTORY
This action arises out of allegations of negligent obstetrical treatment. The plaintiffs Maria Bujak and Zachary Bujak commenced this action against the defendants, University of Connecticut Health Center (the health center) and Dr. Theresa Mangual, on November 13, 2008.
Count one of the revised complaint is directed toward the health center and count four is directed towards Dr. Mangual. Both of these counts are brought by Zachary, personally (through his next of friend), and allege the following: Ms. Bujak began receiving obstetrical care from Dr. Mangual on October 16, 2006. She was subsequently referred to the health center for the purpose of undergoing a Level II ultrasound. Dr. Mangual received the results of the ultrasound and, along with the health center, continued to provide Ms. Bujak with obstetrical care through her pregnancy. The defendants were negligent when they failed to recognize the significance of abnormal ultrasound findings and failed to arrange "follow up" as a result. They also failed to discuss with Ms. Bujak the likelihood that she carried an abnormal fetus and review treatment options. Had she been informed of the ultrasound results and received appropriate counseling, Ms. Bujak would have terminated her pregnancy. Zachary was subsequently born with Charge Syndrome, a severely debilitating genetic disorder, on March 15, 2007. Due to this condition, Zachary has undergone extensive medical treatment. It is expected that he will continue to need such treatment and, as a result, incur great expense for the remainder of his life.
The plaintiffs filed a revised complaint on July 30, 2009.
The remaining four counts of the revised complaint are brought by Ms. Bujak and allege that as a result of the defendants' negligence, she has incurred extensive expenses for Zachary's medical treatment, as well as pain and suffering, and will continue to incur such expenses and suffer emotional distress. They further allege that as a result of the defendants' negligence, she has been forced to incur the costs of raising Zachary until he reaches the age of eighteen.
On June 8, 2009, Dr. Mangual filed a motion to strike count four of the plaintiffs' original complaint. On August 13, 2009, the health center filed a motion to strike count one of the plaintiffs' revised complaint. The defendants move to strike these counts on the ground that Zachary is attempting to allege a claim for wrongful life, which, they assert, is not a recognized cause of action in Connecticut. The plaintiffs filed an objection to both motions. The parties were heard at short calendar on November 13, 2009.
Count four of the original complaint states that as a result of Dr. Mangual's negligence, Zachary was allowed to be born. In response to a request from the health center, the plaintiff subsequently revised count four and added the allegation that as a result of such negligence, the pregnancy was not terminated. Other than this revision, the revised count remains the same. Accordingly, the distinction between the two does not affect this discussion.
II. DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In considering a motion to strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). "If facts provable in the [pleading] would support a cause of action, the motion to strike must be denied." Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
The health center and Dr. Mangual move to strike count one of the original complaint and count four of the revised complaint, respectively, on the ground that Zachary is attempting to allege a claim for wrongful life, and that such an action is not recognized in Connecticut. The plaintiffs respond that both motions should be denied because Zachary has properly alleged a legally cognizable claim in each count.
It is undisputed that Zachary is attempting to allege an action for wrongful life. "`Wrongful life' generally refers to actions brought on behalf of children, as distinguished from `wrongful birth,' which generally refers to actions brought by parents . . . In a wrongful life claim `[t]he child does not allege that the physician's negligence caused the child's [disability]. Rather, the claim is that the physician's negligence — his failure to adequately inform the parents of the risk — has caused the birth of the [disabled] child. The child argues that but for the inadequate advice, it would not have been born to experience the pain and suffering attributable to the [disability].'" (Internal quotation marks omitted.) Rich v. Foye, 51 Conn.Sup. 11, 35, 976 A.2d 819 (2007).
"The courts have generally declined to recognize a cause of action by or on behalf of an infant for wrongfully causing his or her birth, or, as generally termed an action for `wrongful life,' absent the existence of statutory authorization for the action." 62A Am.Jur.2d, Prenatal Injuries; Wrongful Life, Birth or Conception, § 54 (2005). Of the many jurisdictions that have considered the issue, only three states, California, New Jersey, and Washington, have recognized a cause of action for wrongful life. Id. Additionally, there are no appellate decisions in Connecticut that have directly addressed the cognizability an action for wrongful life, nor has the legislature provided statutory authorization for such a claim. Although there is a split of opinion in the Superior Court as to the legal sufficiency of such a claim, this court declines to find that an action for wrongful life is legally cognizable.
See, e.g., Turpin v. Sortini, 31 Cal.3d 220, 237, 643 P.2d 954, 182 Cal.Rptr. 337, 643 P.2d 954 (1982) (child may recover extraordinary medical expenses occasioned by the child's defect in wrongful life action); Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 479-80, 656 P.2d 483 (1983) (same); Procanik by Procanik v. Cillo, 97 N.J. 339, 342-43, 478 A.2d 755 (1984) (same).
Compare, e.g., Quinn v. Blau, Superior Court, judicial district of Danbury, Docket No. CV 96 325691 (December 12, 1997, Stodolink, J.) ( 21 Conn. L. Rptr. 126, 130-31) (recognizing a cause of action for wrongful life); Woodruff v. Hoffman, Superior Court, judicial district of Fairfield, Docket No. 196095 (December 9, 1983, Jacobson, J.) ( 10 Conn. L. Trib. No. 15, pp. 12, 13) (same); Ahsan v. Olsen, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 314430 (November 9, 1987, Wagner, J.) ( 3 C.S.C.R. 55-56) (assuming, arguendo, that a cause of action for wrongful life existed, plaintiff had not adequately pleaded its elements); with Rich v. Foye, supra, 51 Conn. Sup. 43-44 (declining to recognize a cause of action for wrongful life); Donnelly v. Candlewood Obstetric-Gynecological Associates, P.C., Superior Court, judicial district of Danbury, Docket No. 302096 (June 8, 1992, Moraghan, J.) ( 6 Conn. L. Rptr. 532) (same); Chamberland v. Physicians for Women's Health, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 01 0164040 (February 8, 2006, Gallagher, J.) ( 40 Conn. L. Rptr. 731, 732 n. 2) (court granted motion in limine to preclude evidence regarding minor plaintiff's claim of wrongful life).
The principle reasons compelling this conclusion have been thoroughly analyzed in Rich v. Foye, supra, 51 Conn.Sup. 11, and there is no need to repeat that discussion here. In Rich, the defendant health care providers failed to inform the plaintiff parents that the fetal ultrasound results indicated an abnormal cerebellum. Id., 13. The child was subsequently born with severe and permanent disabilities associated with such abnormality. Id. The parents brought an action, alleging, inter alia, wrongful birth on their behalf and sought compensation for the emotional distress that resulted from bearing and raising a child with this disability. In addition, the child brought an action for wrongful life, alleging that, but for the defendants' negligence, she would not have been born. Id., 14-15. The defendants moved to strike both claims. Id., 15.
In Connecticut, "wrongful birth" refers to the claim brought by parents who allege that they would have avoided conception or terminated the pregnancy, but for their physician's negligence.
The court declined to strike the action for wrongful birth. Id., 29. On the other hand, the court granted the motion to strike the child's wrongful life claim. The court reasoned that the child could not sustain such an action against the defendants because their negligence was not the proximate cause of her birth defects. Id., 43-44. In addition, the court reasoned that being born with a handicap, instead of not being born at all, was not a legally cognizable injury. Id.
This court agrees with most of the analysis contained in Rich, and, therefore, will not reiterate its rationale. Nevertheless, the plaintiffs in this case raise several additional points that merit further discussion. Here, the plaintiffs argue that while our appellate courts have not directly ruled as to the existence of a cause of action for wrongful life, the foundation for its recognition has already been established in Ochs v. Borelli, 187 Conn. 253, 445 A.2d 883 (1982), and Burns v. Hanson, 249 Conn. 809, 734 A.2d 964 (1999). As discussed below, these cases do not bear the weight the plaintiffs have placed on them.
In Ochs v. Borrelli, supra, 187 Conn. 254-55, the plaintiff mother, who already had two children born with orthopedic defects, underwent a tubal ligation. Despite this sterilization procedure, she conceived a third child with an orthopedic defect. Id., 255. The parents brought suit against the physician who performed the procedure, as well as his professional corporation. Id., 254. In addition to awarding damages for the harm caused to the mother as a result of the failed sterilization, the jury awarded the plaintiffs the costs of treating the child's orthopedic expenses, as well as the costs of raising the child to majority. Id., 255.
On appeal, the defendants conceded their negligence and that the plaintiffs had proven a case for wrongful conception. Id., 256. Nevertheless, they argued that the plaintiffs' damages should have only been limited to the costs of the child's orthopedic expenses, and not the costs of ordinary child-rearing. Id. The defendants reasoned that the birth of a child is always a blessing and offsets any ordinary financial burdens. Id. Thus, they argued that to allow recovery for such damages would violate public policy because it would erroneously equate the birth of a child with an injury to its parents. Id., 259. Moreover, they argued that the court erred in its jury instructions, causing the damages awarded to be overly speculative. Id.
In Connecticut, there is no distinction between a claim for wrongful birth and wrongful conception. See, e.g., Rich v. Foye, supra, 51 Conn.Sup. 18 (finding that Ochs involved an action for wrongful birth).
The Supreme Court disagreed. In its first opportunity to address the boundaries of an action for wrongful conception, the court looked to other jurisdictions for guidance. Id., 257. Although the court recognized that some jurisdictions rejected any damages for the birth of a healthy child following a sterilization procedure, it concluded that "the better rule is to allow parents to recover for the expenses of rearing an unplanned child to majority when the child's birth results from negligent medical care." Id., 258. The court recognized that raising a child was a "costly enterprise" and, therefore, caused economic injury to the parents. Id., 259. The court further reasoned that the decision to employ contraceptive measures to limit family size was a constitutionally protected privacy right. Therefore, as the defendants had undertaken to assist the plaintiffs in exercising that right, the court could not relieve them from responsibility for the injuries they caused. Id. The court reasoned that to do so would interfere with the plaintiff's protected rights. Id. Accordingly, the court found that the trial court correctly instructed the jury that, in order to determine the appropriate damage award, it must weigh the costs of raising a child to majority against any benefits conferred on the parents by having such a child. Id., 260.
In Burns v. Hanson, supra, 249 Conn. 809, the Supreme Court had opportunity to revisit the issue of damages in an action for wrongful conception. In Burns, the plaintiff, who suffered from severe multiple sclerosis, filed suit against her gynecologist and his practice group. In her complaint, the plaintiff alleged that her gynecologist, knowing that it was medically risky for her to become pregnant, incorrectly advised her that she was sterile. Id., 811. As a result, she discontinued using birth control, and subsequently became pregnant. Id., 814. She further alleged that the gynecologist failed to diagnose her pregnancy early in her second trimester, and therefore, she did not find out that she was pregnant until two months later. Id., 815. The plaintiff then gave birth to a healthy child. Id. In her suit, she sought damages for, inter alia, the costs of caring for that child. Id., 811-12.
The trial court struck the count of the plaintiff's complaint which addressed the defendants' liability for the costs of raising the child, reasoning that the birth of a healthy child does not give rise to a compensable injury. The plaintiff was also precluded from testifying during trial as to what she would have done had she learned of her pregnancy earlier. Id., 822-23. Ultimately, the jury returned a verdict for the defendants. Id., 815.
The trial court also distinguished the case from Ochs by pointing out that negligent advice about whether a person is sterile is not the equivalent of performing a negligent sterilization procedure. Id., 817. The Supreme Court found that this was a distinction without a difference, as medical malpractice encompassed negligent advice as well as negligent procedures. Id., 818 n. 7.
The Supreme Court reversed the trial court and reiterated its position that, "without limitation" a parent may recover for the costs of raising an unplanned child when the child's birth results from negligent medical care. Id., 818. The Burns court clarified that "[ Ochs] did not revolve around the child's disability." Id. Consequently, whether the child was healthy was not determinative of the parents' ability to recover such costs. Similarly, the Burns court rejected the defendants' argument that the plaintiff should not be able to recover any economic damages because her desire to not become pregnant was based on non-economic concerns that failed to materialize. Id., 819. The court held that the motivation behind the plaintiff's desire to not want to have another child was irrelevant. Id. Instead, the court focused on the fact that the physician's negligence, in telling her she was sterile and later in failing to timely diagnose her pregnancy, had interfered with the plaintiff's constitutionally protected right to limit her family size. Id. As a result, she was damaged because she was forced to incur the unplanned for costs of raising a child to majority.
In addition, the Burns court found that the trial court abused its discretion when it did not allow the plaintiff to offer testimony about whether she would have terminated the pregnancy. Id., 827. Again, the court reasoned that the issue at trial was whether the defendant had interfered with the plaintiff's right to decide to limit her family size. Id., 826. Thus, whether she would have had an abortion was relevant to her claim. "The contention that the plaintiff had missed an opportunity to exercise her right to terminate her pregnancy was fundamental to [her] legal theory that the defendant's negligence had caused her harm." Id., 824.
In the present case, the plaintiffs argue that the recognition in Ochs and Burns of actions for wrongful conception, negligent sterilization, negligent advice concerning sterilization and interference with a mother's right to terminate a pregnancy indicates that Connecticut does recognize a cause of action for wrongful life. They point out that in those cases, the court rejected the argument that the blessings inherent in the birth of a child offsets any concomitant financial burdens, and instead, adopted a balancing test to determine the appropriate measure of damages. Thus, they argue that it necessarily follows that a claim for wrongful birth is legally cognizable and that a jury should be permitted to determine the relative merits of Zachary's disabled existence versus no existence at all.
The plaintiffs' arguments, however, stretch the holdings of Ochs and Burns too far. The focus of those cases was on a parent's right to choose whether or not to have child, a right that arises out of the federal constitution. In Ochs and Burns, the court found that the defendants had interfered with this right, because as a direct result of their negligence, the plaintiffs were forced to raise an unplanned child. However, Zachary's claims do not fall within the scope of these two cases because there is no recognized constitutional right to not be born. If the constitutional protections at issue in Ochs and Burns were removed from consideration, it is doubtful that the Supreme Court would have come to the same conclusion.
The court in Ochs v. Borelli, supra, 187 Conn. 260 n. 4, recognized that the issue was raised at trial that the parents could have avoided the obligation (and technically were not forced) to raise a child by resorting to adoption or abortion. As it was not pressed by either party on appeal, the court did not directly address this issue. However it did observe that the duty to mitigate damages is limited to making reasonable efforts.
In fact, as discussed in Rich v. Foye, supra, 51 Conn.Sup. 42-43, the recognition of such a right would interfere with a woman's right to choose whether to keep her pregnancy.
Moreover, the plaintiffs make much of the language in both cases wherein the court stated that a tortfeasor must assume liability for all the damages that he has caused. See Ochs v. Borelli, supra, 187 Conn. 258; CT Page 3071 Burns v. Hanson, supra, 249 Conn. 819. They argue that this language indicates that but for because the defendants' negligence the child would not have been born and, therefore, not only are they responsible to Ms. Bujak for the costs associated with rearing a disabled child, but that they are also responsible to Zachary, personally, for all of the harm associated with living with a disability. The plaintiffs assert, therefore, that as long as they have properly alleged duty, breach, causation and damages, they have sufficiently alleged a basis for imposing tort liability.
This court is not persuaded. The plaintiffs fail to point out that causation has two components: cause in fact and proximate cause. Paige v. St Andrew `s Roman Catholic Church Corp., 250 Conn. 14, 24-25, 734 A.2d 85 (1999). Although the facts as alleged may be sufficient to establish cause in fact, they are not legally sufficient to establish proximate cause. "[W]e use `proximate cause' to label generically the judicial tools used to limit a person's responsibility for the consequences of that person's own acts." (Internal quotation marks omitted.) Ganim v. Smith Wesson Corp., 258 Conn. 313, 350, 780 A.2d 98 (2001). In Ganim, the Supreme Court had occasion to examine the doctrine of probable cause when the city of Bridgeport (city) and its mayor brought suit against various firearms manufacturers, trade associations and retail sellers for the costs incurred by the city as a result of gun violence. Id., 316. The plaintiffs claimed that the defendants had not taken adequate measures to make safer guns available in order to prevent foreseeable injuries, had failed to provide adequate warnings and had knowingly sold guns in a manner that encouraged an illegal market. Id., 326-27. They further alleged that, as a result, the city suffered irreparable harm and financial harm, including, inter alia, incurring additional expenses for emergency and health services, as well as lost opportunities for economic development. Id., 327. The plaintiffs asserted that the defendants reasonably should have foreseen that their handguns would fall into the hands of unauthorized and unintended users and cause such harm. Id., 330.
Although the court recognized that the defendants' alleged conduct may have ultimately contributed to the plaintiffs' damages, it found that such damages were derivative of direct harm to the primary victims of handgun violence. Id., 355. Thus, the court concluded that the connection between the defendant's conduct and the alleged harm was too indirect to support recovery. Id., 353. "Because the consequences of an act go endlessly forward in time and its causes stretch back to the dawn of human history, proximate cause is used essentially as a legal tool for limiting a wrongdoer's liability only to those harms that have a reasonable connection to his actions. The law has wisely determined that it is futile to trace the consequences of a wrongdoer's action to their ultimate end, if end there is." (Internal quotation marks omitted.) Id., 350-51.
In Ganim, the court concluded that the plaintiffs lacked standing because they had failed to allege a direct injury. Id., 365. However, in its discussion, the court also acknowledged that, depending on the circumstance, the concept of proximate causation may be considered under a motion to strike. Id., 363-64.
The plaintiffs argue that Ochs demonstrates that the Supreme Court has "consistently" refused to allow any public policy exceptions to the general rule that a torfeasor is responsible for all the harm that he has caused. In Ochs, however, the court had refused to create a policy exception to the defendants' tort liability only because the plaintiffs' constitutionally protected privacy rights were at issue. At no point did the court declare that the defendants were responsible for all the consequences of their actions to their ultimate end.
Contrary to the plaintiffs' assertions, "[i]t is . . . part of the judicial task, based on policy considerations, of setting some reasonable limits on the legal consequences of wrongful conduct . . . While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree." (Citations omitted; emphasis added; internal quotation marks omitted.) Ganim v. Smith Wesson Corp., supra, 258 Conn. 349.
In this case, declining to recognize a cause of action for wrongful life sets the requisite limits in determining liability for the provision of negligent obstetric care. For instance, Zachary seeks to hold the defendants liable for the burdens of his life with a disability, although he does not allege that the defendants caused his disability. Rather, he asserts that, because of the negligent medical care to his mother, she did not terminate her pregnancy and he was born as a result. Thus, his alleged injuries derivatively flow from the wrong inflicted upon his mother. As a general rule, "where a plaintiff complains of injuries that are wholly derivative of harm to a third party, plaintiff's injuries are generally deemed indirect and as a consequence too remote, as a matter of law, to support recovery." Ganim, supra, 352-53.
In order to determine whether to hold a defendant accountable for the indirect harm he has caused, a court must be guided by three policy considerations. Id., 353. The first is that the more indirect an injury is, the more difficult it becomes to determine how much of the plaintiff's damages are attributable to the defendant's wrongdoing, as opposed to other, independent factors. Id. The second is that recognizing claims by the indirectly injured would require courts to adopt complicated apportionment rules in order to avoid the risk of multiple recoveries. Id. Finally, the third is that "struggling with the first two problems is unnecessary where there are directly injured parties who can remedy the harm," and deter the defendants from continuing their tortious conduct. Id., 359.
The Ganim court adopted this three-part policy analysis from Laborers Local 17 Health Benefit Fund v. Philip Morris, Inc., 191 F.3d 229, 236-37 (2d Cir. 1999), cert. denied, 528 U.S. 1080, 120 S.Ct. 799, 145 L.Ed.2d 673 (2000), which was faced with the task of determining whether the plaintiffs had stated a claim upon which relief could be granted.
With respect to the first policy consideration, it is difficult to determine in this situation how much of Zachary's damages are attributable to the defendants' alleged conduct because there were other independent factors that were also the cause in fact of his alleged harm. Consequently, this may implicate the second policy consideration, as the court would be required to adopt complicated apportionment rules to determine the correct measure of damages. Finally, in this case, the court does not need to struggle with the first two considerations, as there is a directly injured party who can remedy the harm. There is no dispute that Ms. Bujak has sufficiently alleged that, as a result of the defendant's negligence, she has been directly harmed. "[T]here is no reason why the parents of a severely disabled child . . . could not recover the premajority and postmajority economic costs of supporting the child under a wrongful birth claim instead of . . . under a duplicative wrongful life claim." Rich v. Foye, supra, 51 Conn.Sup. 42. Her claims, if successful, are sufficient to deter the defendants from continuing their tortious conduct and would compensate her loss. "[T]he availability of such other remedies by other parties who are directly harmed greatly reduces the need for confronting the enormous difficulties in sorting out the questions of causation and damages demonstrated by the first two factors." Ganim v. Smith Wesson Corp., supra, 258 Conn. 359.
Admittedly, a cause of action for wrongful life is not completely duplicative of one for wrongful conception. In the former, the parents recover the costs associated with raising an unplanned-for child to the age of majority. In the latter, the child recovers damages resulting from her disabled existence. This includes her pain and suffering and the extraordinary expenses for the special care required during the child's lifetime. These differences, however, are not significant enough to justify opening the can of worms that would follow the recognition of an action for wrongful life.
This court has analyzed all of the policy considerations, and concludes that Zachary's injuries, as alleged, were not proximately caused by the alleged negligence of the defendants. Despite the "but for" connection between Zachary's alleged harms and the defendants' alleged conduct, such a connection is indirect and too remote. Additionally, the recognition of an action for wrongful life is unnecessary because there is a directly injured party, Ms. Bujak, who can recover and remedy the harm occasioned by the alleged malpractice. Equally important, Zachary's claims do not implicate the constitutional concerns addressed in Ochs and Burns. Consequently, because this court must set some reasonable limits on the legal consequences of the defendants' conduct, and because of the other reasons elucidated in Rich v. Foye, it declines to recognize Zachary's claims.
III. CONCLUSION
Accordingly this court grants the motions to strike.