Opinion
CIVIL ACTION No: 03-2351 C/W 03-2391, SECTION: "D"(4).
July 15, 2004
Before the court is the "Motion for Partial Summary Judgment" filed by Defendant, Bancroft Rehabilitation Living Centers, Inc d/b/a Bancroft House (Bancroft). Plaintiffs, John Kocke (curator of and on behalf of Louise Grady) and William Grady (individually and as administrator of the estates of his minor children), filed memoranda in opposition.
The motion, set for hearing on Wednesday, May 12, 2004, is before the court on briefs, without oral argument. Now, having reviewed the memoranda of counsel, the record and the applicable law, the court rules as follows.
In this consolidated matter, Plaintiffs initially claimed that there was non-consensual sexual intercourse between Louise Grady, a resident at Bancroft House, and an unidenitfied "John Doe," which resulted in the birth of a child, Emmanuel Grady on or about March 5, 2003. Plaintiffs subsequently were allowed to file "First Supplemental and Amending Complaints" in which Plaintiffs: (1) added Defendant Leon Ventress, as curator of Terry Hawkins who is alleged to be a resident, patient, invitee and/or guest of Bancroft; (2) alleged that "John Doe" is an employee and/or agent and/or resident of Bancroft; and (3) alleged that Terry Hawkins and/or "John Doe" engaged in non-consensual sexual relations with Louise Grady, which resulted in the birth of Emmanuel Grady on or about March 2, 2003. ( See First Supplemental and Amending Complaints, Doc. No. 59 at § II(3) Doc. No. 60 at ¶ 2).
Plaintiffs seek damages based on the alleged "joint, combined and concurrent negligence of Defendants Bancroft, Terry Hawkins and John Doe." (Doc. No. 59 at § III (4), and Doc. No. 60 at ¶ 3). As to Defendant Bancroft, Plaintiffs allege, inter alia, that Bancroft failed to properly supervise and protect its patients/residents, and failed to properly administer birth control to Louise Grady. ( Id.). As to "John Doe," Plaintiffs allege, inter alia, that he failed to adequately protect and supervise Louise Grady, and allowed a resident or other person to engage in sexual relations with her. ( Id.). Finally, as to "Terry Hawkins," Plaintiff allege that he engaged in sexual relations with Louise Grady and committed a battery on her. ( Id.).
The damages that Plaintiffs seek include: "expenses incurred during pregnancy and delivery; psychological and emotional damage; emotional and mental distress associated with the actual birth of the child at the hospital, including but not limited to experiencing Louise Grady being placed in restraints and having the child born and fall into the toilet; the birth of an unplanned and unwanted child and the unexpected restriction upon the freedom to plan and participate in the family; economic costs of rearing an unplanned and unwanted child; expenses of the change in family status; loss of consortium, service and society; emotional and mental distress associated with the child's stigmatized birth, and inconvenience of redistributing the family income and patrimony which is occasioned by the unexpected child's birth." ( See First Supplemental and Amending Complaints, Doc. No. 59 at § IV (5), and Doc. No. 60 at ¶ 5) (emphasis added).
In its "Motion for Partial Summary Judgment" (filed before Plaintiffs amended their Complaints), Defendant Bancroft seeks dismissal of the following claims for damages, which Bancroft argues are not recoverable under Louisiana law:
(1) the economic cost of rearing an unplanned and unwanted child;
(2) expenses of change in family status;
(3) inconvenience of redistributing the family income and patrimony which is accompanied by the unexpected child's birth; and
(4) emotional and mental distress associated with the child's stigmatized birth.
(Defendant's Motion Supporting Memo., Doc. 18, p. 1).
In support of this argument, Bancroft relies on Pitre v. Opelousas General Hospital, 530 So.2d 1151 (La. 1988) and its progeny. In Pitre, Mrs. Pitre underwent a bilateral tubal ligation, and unaware that it was unsuccessful, she later became pregnant and her child was "born with the congenital defect known as albinism." Id. at 1153. Mr. and Mrs. Pitre filed a medical malpractice suit, on behalf of themselves and the child "Hannah", against the surgeon for his alleged negligence which caused the failure of a bilateral tubal ligation to sterilize the mother, resulting in the unplanned and unwanted birth of the child. Id.
The Pitres sought general damages for expenses incurred during the pregnancy and delivery as well as for emotional and mental distress. Id. They also requested costs for rearing the child, special expenses for the child's deformity, and expenses for the change in family status "including extra money to compensate for the fact that their society, comfort, care, protection and support must be spread over a larger group, and money to replenish the `family exchequer' so that Hannah's need [would] not deprive other members of the family." Id.
The mother also sought damages for her pain and suffering, and the father sought damages for the loss of consortium, service and society. Id. On behalf of the child, the parents sought damages for the "wrongful life" of Hannah "in that she was born with a physical deformity, namely albinism, future medical expenses, past, and future, emotional and mental hardship, pain and suffering." Id.
The Louisiana Supreme Court found that the parents, upon proof, may recover for:
expenses incurred during pregnancy and delivery, the mother's pain and suffering, the father's loss of consortium, service and society, and their emotional and mental distress associated with the birth of an unplanned and unwanted child and the unexpected restriction upon their freedom to plan their family. These damages were foreseeable consequences of the doctor's alleged acts and omissions.Id. at 1161-62.
However, the Court found that the parents could not recover for:
the economic costs of rearing an unplanned and unwanted child, expenses of the change in family status, including extra money to compensate for the fact that the mother must spread her society, comfort, care, protection and support over a larger group, money to replenish the "family exchequer" so that the child will not deprive the other family members.Id. at 1162 (emphasis added).
The Pitre Court also found that [t]he parents may not recover for the special expenses regarding the child's deformity, or for the emotional and mental distress associated with the child's deformity" because these were "not consequences which were caused by an impact on the person of the mother or which a reasonable practitioner would expect to follow from the conduct as alleged in the petition." Pitre, 530 So.2d at 1162. However, the Court allowed the parents to amend their petition, if they could, to remove this deficiency. Id.
The Court reasoned that "[t]hese are the ordinary vicissitudes that befall any family with the birth of a healthy, normal child. Absent unusual circumstances, a child is presumed to be a blessing not offset by the inconvenience of redistributing the family income and patrimony which he or she may occasion. . . . Therefore, proof of the ordinary economic impact of an additional child would not constitute proof of a loss to the parents or family." Id. (italics added).
Louisiana appellate courts have subsequently applied Pitre in situations involving criminal sexual conduct resulting in the pregnancy of the victim and birth of an unwanted child, to deny claims for the economic cost of raising an unplanned and unwanted child, expenses of change in family income, and inconvenience of redistributing the family income and patrimony which is accompanied by the unexpected child's birth. See e.g., Latullas v. State, 658 So.2d 800 (La.App. 1st Cir. 1995) (involving child born as a result of the rape of a female inmate by a prison security officer); and State v. Sanderson, 715 So.2d 483 (La.App. 3rd Cir. 1998) (vacating restitution portion of criminal defendant's sentence that required defendant to pay the State for the costs of foster care of child conceived as a result of defendant having sexual relations with a mentally retarded 16-year old girl in Louisiana's foster care system).
However, Plaintiffs argue "the Louisiana appellate courts merely parroted the holding of Pitre" and did not consider the Pitre Court's reasoning as to which damages are recoverable when a defendant is in "good faith" as opposed to when a defendant is in "bad faith." (Plaintiffs' Opp. at 7). In Pitre, the Court analyzed "legal cause" under the Louisiana Civil Code and found:
Although the articles in the Code under Title IV on conventional obligations or contracts are primarily intended to govern contractual liability, our objective search for rules to govern a tort case may involve looking for an analogy among codal rules, principles, concepts or statutory doctrines. Under these articles, damages are measured by the loss sustained by the obligee and the profit of which he has been deprived. An obligor in good faith is liable only for the damages that were forseeable at the time the contract was made. An obligor in bad faith is liable for all the damages, foreseeable or not, that are a direct consequence of his failure to perform. An obligor is in bad faith if he intentionally or maliciously fails to perform his obligation.Pitre, 530 So.2d at 1161. (emphasis added).
The Court concluded that:
as a general principle . . . the same criterion of forseeability and risk of harm which determined whether a physician in this kind of situation was negligent in the first instance should determine the extent of his liability for that negligence; and that the doctor should not be held liable for consequences which no reasonable practitioner would expect to follow from the conduct. In accordance with the almost universal rule, however, the physician shall be liable for all resulting harm to the person caused by the negligent physical impact upon the person of the plaintiff. Likewise, in accordance with the general rule, and by analogy to our civil code articles governing contractual damages, a physician who intentionally, recklessly or in bad faith violates his legal duty shall be liable for all damages, forseeable or not, that are a direct consequence of his breach of obligation.Id.
In the appellate decisions of Latullas and State v. Sanderson, there was no discussion of good faith versus bad faith. At this juncture, the court concludes that Plaintiffs should be afforded the full amount of time allotted for discovery to obtain evidence, if it exists, to establish Bancroft's "bad faith" and entitlement to damages forseeable or not, under the reasoning of Pitre. And thus the court will deny, but without prejudice to be re-asserted at the close of discovery, Defendant's Motion for Partial Summary Judgment as it pertains to Plaintiffs' claims for the economic cost of rearing an unplanned and unwanted child; expenses of change in family status; and inconvenience of redistributing the family income and patrimony which is accompanied by the unexpected child's birth.
The discovery cut-off date is November 15, 2004. Trial is presently set for the week of January 18, 2004, and the Pre-Trial Conference is scheduled for December 15, 2004. ( See Scheduling Order, Doc. No. 42).
The court notes that Plaintiffs have still not identified the "John Doe" is alleged to be "an employee and/or agent and/or resident of Bancroft." Further, to date, the newly added Defendant, Leon Ventress, as curator of Terry Hawkins, has not even answered the Plaintiffs' First Supplemental and Amending Complaints.
The court also pretermits, at this juncture before the close of discovery, a ruling on the applicability (to this case) the Pitre Court's statement: "Absent unusual circumstances, a child is presumed to be a blessing not offset by the inconvenience of redistributing the family income and patrimony which he or she may occasion." Pitre, 530 So.2d at 1162.
Finally, the court addresses Plaintiffs' claim for "emotional and mental distress associated with the child's stigmatized birth." This claim is asserted by Plaintiff William Grady, on behalf of Emmanuel Grady, the child at issue. The court finds that such a claim is tantamount to a claim for "wrongful life," as discussed in Pitre, 530 So.2d at 1154-55.
The Pitre Court first found that a child's action for general damages for the suffering of being born in an afflicted condition has uniformly been rejected by all courts before which it had been raised. Id. However, in dicta, the Court later reasoned that under certain circumstances, a birth defect and deformity resulting from a physician's negligence might give rise to an action for wrongful life if the physician knew or should have known of the risk of the abnormality. Id. at 1158.
The Pitre Court found that the defendant's exception of no cause of action on the child's "wrongful life" claim had been properly sustained by the appellate court, but "in the interests of justice," the Plaintiffs were given 30 days from the finality of the Supreme Court's decision within which to amend the petition, if they could, to remove the grounds of the objection noted in the appellate opinion. Pitre, 530 So.2d at 1158, 1162.
Both before and after Pitre, Louisiana courts have not recognized a cause of action for wrongful life which is based solely on illegitimacy. Doe v. Cronan, 487 So.2d 461 (La.App. 5th Cir. 1986); Lloyd v. Howard, 566 So.2d 424, 426 (La.App. 3rd Cir. 1990) (child born allegedly after female inmate was raped by two male inmates); Henry v. Taco-Tio, Inc., 614 So.2d 772 (La.App. 2nd Cir. 1993).
In Latullas, a claim was made on behalf of the minor child (who had been conceived as a result of his inmate mother being raped by a prison security officer) "for damages for the humiliation the child will suffer due to the stigma of her birth." Latullas, 658 So.2d at 806. At trial, "there was no evidence presented on the [child's] behalf to substantiate [the] claim that the child suffers from or will be burdened with a stigma resulting from her birth or conception." Id. In his report, the commissioner (who made recommendations to the trial court) concluded that such a claim was tantamount to a claim for "wrongful life" as discussed in Pitre, and denied recovery. Id. The First Circuit Court of Appeals found no error in this ruling. Id.
In Latullas, the child was born as a result of her mother being raped by a prison guard when the mother incarcerated. Latullas, 658 So.2d at 801-02.
Here, the claim asserted on behalf of Emmanuel Grady is not based on a physical defect (as in Pitre), but rather it is based upon the stigma resulting from his conception and birth (as in Cronan, Lloyd and Henry). The court concludes that such a claim is akin to a wrongful life claim based on illegitimacy (rather than some physical deformity), and it is not recoverable under Louisiana law.
Accordingly;
IT IS ORDERED that Defendant Bancroft's Motion for Partial Summary Judgment as it pertains to Plaintiffs' damages claims for the economic cost of rearing an unplanned and unwanted child, expenses of change in family status, and inconvenience of redistributing the family income and patrimony which is accompanied by the unexpected child's birth, be and is hereby DENIED AS PREMATURE, but without prejudice to be re-asserted at the close of discovery. (If this matter proceeds to Trial, the court may consider bifurcating liability and damages.).
IT IS FURTHER ORDERED that Defendant Bancroft's Defendant's Motion for Partial Summary Judgment, as it pertains to the claim asserted on behalf of Emmanuel Grady for "emotional and mental distress associated with [his] child's stigmatized birth," be and is hereby GRANTED.