-28-
STATE OF MICHIGAN
COURT OF APPEALS
BRANDY TAYLOR and BRIAN TAYLOR, FOR PUBLICATION
Individually, and BRANDY TAYLOR, June 25, 1999
as Next Friend and Mother of 9:05 a.m.
SHELBY TAYLOR, a Minor,
Plaintiffs-Appellants,
v No.204908
Wayne Circuit Court
SURENDER KURAPATI, M.D., and LC No.96-637564 NH
ANNAPOLIS HOSPITAL, assumed name
of UNITED CARE, INC.,
Defendants-Appellees.
Before: Doctoroff, P.J., and Smolenski and Whitbeck, JJ.
WHITBECK, J.
Plaintiffs-appellants Brandy and Brian Taylor, individually,
and Brandy Taylor as next friend and mother of Shelby Taylor,1 a
minor (collectively, the “Taylors”), appeal as of right the trial
court’s order granting summary disposition in favor of defendants-
appellants Surender Kurapati, M.D (“Kurapati”) and Annapolis
Hospital with respect to their wrongful birth and negligent
infliction of emotional distress claims.
With respect to their wrongful birth claim, the Taylors cite
the following description of the tort of wrongful birth in Blair
v Butzel Hospital, 217 Mich App 502, 506-507; 552 NW2d 507
(1996), reversed on other grounds 456 Mich 877 (1997):
If a physician breaches the appropriate duty under the
facts of a case, and it can be established that the
parents would have avoided or terminated the pregnancy,
the necessary causal connection is established. The
parents should recover for their extraordinary medical
expenses and the extraordinary costs of raising the
child, as well as the emotional harm they have
suffered. [Quoting Proffitt v Bartolo, 162 Mich App
35, 46; 412 NW2d 232 (1987).]
With respect to their negligent infliction of emotional distress
claim, the Taylors cite Wargelin v Sisters of Mercy Health Corp,
149 Mich App 75, 80-81; 385 NW2d 732 (1986), for the proposition
that, “Michigan has recognized a cause of action based on
negligence when a parent who witnesses the negligent infliction
of injury to his or her child suffers emotional distress as a
consequence.”
We note that counsel for the Taylors at oral argument
candidly conceded that, but for the claimed existence of the
wrongful birth tort, there would be no issue relating to the
statute of limitations. Thus, this case revolves around the
wrongful birth tort. In this opinion, we address the basic
question of whether, absent legislative action, such a tort has a
rightful place in our jurisprudence. We conclude that it does
not. We further conclude that the Taylors failed to file their
complaint within the applicable limitations period. We also
conclude that the undisputed facts of this case do not support a
claim for negligent infliction of emotional distress and that
summary disposition was also appropriate as to this aspect of the
case.
I. Basic Facts And Procedural History
The Taylors filed their basic complaint in August, 1996.2
The Taylors alleged that Brandy Taylor had a doctor-patient
relationship with Kurapati, a specialist in radiology, and
Annapolis. On April 19, 1994, Brandy Taylor gave birth to the
couple’s daughter, Shelby Taylor. Throughout her pregnancy,
Brandy Taylor had been treated by Dr. Leela Suruli. Suruli had
ordered that a routine ultrasound be performed in Brandy Taylor’s
second trimester. The ultrasound was conducted on December 4,
1993, and interpreted by Kurapati, an agent of Annapolis.
Kurapati concluded that the pregnancy was seventeen weeks along,
plus or minus two weeks, and that there were no visible
abnormalities with the fetus. A second ultrasound was conducted
on March 16, 1994, and interpreted by another physician, Dr.
Cash. Cash indicated that the baby’s femurs could not be
adequately identified and believed that a high resolution
ultrasound could be helpful for further investigation. Suruli
told Brandy Taylor that the baby had short femur bones and would
merely be shorter than average. Brandy Taylor decided not to
have another ultrasound. Shelby Taylor was born on April 19,
1994, with “gross anatomical deformities including missing right
shoulder, fusion of left elbow, missing digits on left hand,
missing femur on left leg and short femur on right.” A study at
the University of Michigan Hospital suggested that Shelby Taylor
had femur-fibula-ulna syndrome.
In their complaint, the Taylors alleged that the standard of
care in performing the initial ultrasound had been breached by
Kurapati for his failure to locate all four limbs at the time of
the ultrasound. The Taylors alleged that the ultrasound should
have shown Shelby Taylor’s disabilities and that the failure to
reveal the disabilities deprived the Taylors of their right to
make a reproductive decision regarding the pregnancy. In
addition to their claim for medical malpractice, the Taylors also
alleged that, because of defendants’ negligence, they suffered
emotional distress at witnessing the birth of their child.
In early April, 1997, Annapolis filed a motion for summary
disposition pursuant to MCR 2.116(C)(7), (C)(8) and (C)(10).
Annapolis primarily argued that the Taylors had failed to file
their complaint within the statute of limitations for medical
malpractice actions. Soon thereafter, Kurapati filed a similar
motion for summary disposition pursuant to MCR 2.116(C)(7),
(C)(8) and (C)(10).
The trial court held a hearing on defendants’ motions in
early May, 1997. The trial court concluded that the Taylors’
medical malpractice claim was not timely filed and dismissed the
complaint with regard to any malpractice claims. However, the
trial court allowed the Taylors’ claim for negligent infliction
of emotional distress to go forward, as the parties had not
addressed the issue in their briefs. The trial court gave
defendants an opportunity to submit motions for summary
disposition with regard to the negligent infliction of emotional
distress claim and eventually, without oral arguments, granted
defendants’ motions for summary disposition as to the Taylors’
claim for negligent infliction of emotional distress. The trial
court also denied the Taylors’ motion for reconsideration with
regard to its earlier ruling as to the statute of limitations.
II. The Wrongful Birth Tort
A. The Closely Analogous Birth-Related Torts
(1) Introduction
The wrongful birth tort is within a constellation of birth-
related torts and is closely related to two other such torts:
“wrongful conception” and “wrongful life.” At the outset,
however, we note that the relationship between the wrongful birth
tort and other, more firmly established torts of birth-related
medical malpractice is considerably more tenuous. Michigan has
long recognized that causes of action exist in—and we use the
cruel but evocative trial parlance with extreme hesitation—“bad
baby” cases. In such cases, courts and juries have held
physicians and other health professionals liable for birth or
pregnancy-related disabilities caused in whole or in part by
their negligence.3 These cases generally involve negligence
occurring fairly close in time to, if not contemporaneous with,
the birth itself.4 This is unlike the wrongful birth tort that
usually involves an allegation of a negligent failure relatively
early in the pregnancy to inform the parents of the risk of birth
defects. Further, these cases do not involve the intermediate
step of parental action. That is, they do not involve an
allegation that the negligence deprived the parents of the
opportunity to terminate the pregnancy.5 In other words, such
cases are simply a typical claim of medical malpractice injuring
a person. They are not wrongful birth claims because they
involve no allegation that the baby involved should never have
been born, but rather involve an allegation that, absent
malpractice, the same baby would have been born without certain
injuries.
Further, despite rhetorical similarities, the wrongful birth
tort has little to do with “end of life” cases. These cases have
their basis in a person’s right to make medical decisions,
grounded in the common law,6 state statutes or state
constitutions,7 or in the federal constitutional liberty interest8
in refusing unwanted medical treatment. In this regard, Michigan
recognizes a right to withhold or withdraw life-sustaining
medical treatment under the common law doctrine of informed
consent. In re Martin, 450 Mich 204, 215; 538 NW2d 399 (1995).
Any similarity that might exist between these end of life cases
and the wrongful birth tort derives not from situations involving
a competent patient’s right to make such medical decisions.
Rather the similarity derives from situations involving a once-
competent patient, who has utilized a living will9 or other
advance directive10 or a do-not-resuscitate order11 to proscribe
certain types of treatment; a once-competent patient who has left
no such instructions;12 or a never-competent patient.13 Generally,
these situations involve the use of surrogates who have, to a
greater or lesser extent, or who seek the power to make life or
death decisions on behalf of the patient. There is, therefore,
an analogy between these cases and the surrogate role of the
parents in wrongful birth cases who have, but argue that the
physician’s negligence deprived them of, the right under
controlling federal precedent to terminate a pregnancy.
However, the analogy is not a close one, for several
reasons. First, although much of the litigation and legislative
activity in the end of life area may have its roots in a fear of
liability, the actions themselves do not generally arise in a
tort context. Secondly, courts generally recognize that the
right to refuse life-prolonging procedures, whether directly or
through surrogates, is not an absolute one and often balance that
right against the state’s interests, including the interest in
preserving life, preventing suicide, protecting innocent third
parties, and maintaining the ethical integrity of the medical
profession.14 In wrongful birth cases, however, courts often
consider these interests to be inapplicable or shunt them aside.
Thus, the most fruitful comparisons for analytic purposes are to
the closely analogous birth-related torts of wrongful conception
and wrongful life.
(2) Wrongful Conception
As Anthony Jackson outlines,15 an action for wrongful
conception, also known as wrongful pregnancy, arises where the
defendant’s negligent conduct failed to prevent the birth of a
child in the following scenarios: (1) where a physician
negligently performs a vasectomy or tubal ligation16 or when a
physician, pharmacist or other health professional provides any
other type of ineffective contraception, the parents conceive,
and the birth of a healthy, but unplanned, baby results17; (2)
where a physician negligently fails to diagnose a pregnancy,
thereby denying the mother the choice of termination of the
pregnancy at a timely stage, and the birth of a healthy, but
unwanted, baby results;18 and (3) where a physician negligently
attempts to terminate the pregnancy and the birth of a healthy,
but unwanted, baby results.19 Of course, the latter two scenarios
do not actually involve a claim that a defendant’s negligence was
a factor in the conception of the child.
As noted, this Court has recognized a cause of action for
wrongful conception. According to our research, the first case
definitively on point was Troppi v Scarf, 31 Mich App 240; 187
NW2d 511 (1971). In Troppi, as this Court described it in Rouse,
supra at 628, the parents had seven children and decided to limit
the size of their family. The Troppis’ physician prescribed oral
contraceptives for Mrs. Troppi but the defendant pharmacist
negligently provided Mrs. Troppi with tranquilizers. Presumably
as a result, Mrs. Troppi conceived and delivered an eighth, and
healthy, child. Id. The Troppi panel permitted the Troppis to
maintain an action for the costs20 of raising this eighth child to
majority.
The Troppi panel was careful to declare, at least initially,
that it was not blazing new ground:
Contraception, conjugal relations, and childbirth
are highly charged subjects. It is all the more
important, then, to emphasize that resolution of the
case before us requires no intrusion into the domain of
moral philosophy. At issue here is simply the extent
to which defendant is civilly liable for the
consequences of his negligence. In reversing and
remanding for trial, we go no further than to apply
settled common-law principles. [Troppi, supra, at 244-
245.]
The Troppi panel then reviewed the common law concepts of breach
of duty,21 causation in fact,22 and direct and proximate causation
resulting in damages23 and concluded:
This review of the elements of tort liability
points up the extraordinary nature of the trial court’s
holding that the plaintiffs were entitled to no
recovery as a matter of law.[24] We have here a
negligent, wrongful act by the defendant, which act
directly and proximately caused injury to the
plaintiffs.
What we must decide is whether there is
justification here for a departure from generally
applicable, well-established principles of law:
“The general rule of damages in an action of tort
is that the wrongdoer is liable for all injuries
resulting directly from the wrongful acts, whether they
could or could not have been foreseen by him, provided
the particular damages in respect to which he proceeds
are the legal and natural consequences of the wrongful
act imputed to the defendant, and are such as,
according to common experience and the usual course of
events, might reasonably have been anticipated.
Remote, contingent, or speculative damages will not be
considered in conformity to the general rule above laid
down.” Van Keulen & Winchester Lumber Co. v. Manistee
& N. R. Co.[, 222 Mich 682, 687; 193 NW 289 (1923).]
[Troppi, supra at 246-247; footnote omitted.]
Having declared that the issue with respect to this new tort was
whether its non-creation could be justified as an exception to
common-law principles, the Troppi panel concluded that there was
no valid reason why the trier of fact should not be free to
assess damages “as it would in any other negligence case.” Id.
at 252. Picking up speed, the Troppi panel plunged into a
discussion of public policy (relying, in part, on its perception
of “the State’s advocacy of family planning,” id. at 253) and
then paused at mid-point to soundly endorse the application of
the “benefits rule.” See id. at 252-262. The Restatement as
then in effect, Restatement, Torts, § 920, p 616, expressed this
rule as:
Where the defendant’s tortuous conduct has caused
harm to the plaintiff or to his property and in so
doing has conferred upon the plaintiff a special
benefit to the interest which was harmed, the value of
the benefit conferred is considered in mitigation of
damages, where this is equitable. [Emphasis supplied.]
The Troppi panel saw no problem in applying this rule in a
wrongful conception case:
Since pregnancy and its attendant anxiety,
incapacity, pain, and suffering are inextricably
related to child bearing, we do not think it would be
sound to attempt to separate those segments of damage
from the economic costs of an unplanned child in
applying the “same interest”[25] rule. Accordingly, the
benefits of the unplanned child may be weighed against
all the elements of claimed damage.
The trial court evidently believed, as did the
court in Shaheen v Knight, supra,[26] that application
of the benefits rule prevents any recovery for the
expenses of rearing an unwanted child. This is
unsound. Such a rule would be equivalent to declaring
that in every case, as a matter of law, the services
and companionship of a child have a dollar equivalent
greater than the economic costs of his support, to say
nothing of the inhibitions, the restrictions, and the
pain and suffering caused by pregnancy and the
obligation to rear the child.
There is a growing recognition that the financial
“services” which parents can expect from their
offspring are largely illusory.[27] As to
companionship, cases decided when “loss of
companionship” was a compensable item of damage for the
wrongful death of a child reveal no tendency on the
part of juries to value companionship so highly as to
outweigh expenses in every foreseeable case.[28]
Our discussion should not be construed as an
expression of doubt as to the efficacy of the benefits
rule in cases like the one before us. On the contrary,
we believe that rule to be essential to the rational
disposition of this case and the others that are sure
to follow. The benefits rule allows flexibility in the
case-by-case adjudication of the enormously varied
claims which the widespread use of oral contraceptives
portends. [Id. at 255-256; emphasis supplied.]
The Troppi panel then brushed aside the problem of placing a
dollar value on the companionship and services of an unwanted
child. The panel stated that, “difficulty in determining the
amount to be subtracted from the gross damages does not justify
throwing up our hands and denying recovery altogether,” id. at
261, holding that a trier of fact could find a basis for the
“reasonable ascertainment of the amount of the damages,” id.
This Court reached a similar result in Green v Sudakin, 81 Mich
App 545; 265 NW2d 411 (1978).29
However, in Rinard v Biczak, 177 Mich App 287; 441 NW2d 441
(1989), this Court reached a far different conclusion. Rinard
involved a suit by the plaintiffs against the defendant physician
in which the plaintiffs alleged medical malpractice for the
defendant’s failure to diagnose Mrs. Rinard’s pregnancy. At
trial, the plaintiffs testified that Mrs. Rinard probably would
have sought to terminate the pregnancy had the defendant properly
diagnosed that pregnancy. The jury awarded the plaintiffs
damages for the cost of raising their healthy child. Id. at 289-
290. The Rinard panel reversed, holding that neither natural nor
adoptive parents can recover the costs of “raising a normal,
healthy child because those costs are outweighed by the benefits
of that child’s life.” Rinard, supra at 290.
In reaching this conclusion, the Rinard panel observed that
Michigan is among the minority of states that allow the recovery
of the costs of raising a child as an element of damages, offset
by the benefits received by the parents from a parent-child
relationship. Rinard, supra at 292. The panel commented that,
“[i]n a substantially greater number of jurisdictions, courts
have denied the recovery of child-rearing costs.” Id. (citations
omitted). Further, “It appears that the majority of states do
not allow recovery of the costs of raising ‘a healthy, normal
child’ as a element of damages in a wrongful pregnancy case.”30
The Rinard panel then went on to criticize the application of the
benefits rule in wrongful pregnancy cases:
Courts have not allowed the recovery of the costs
of raising a normal, healthy child as an element of
damages for many reasons.[31] We consider the best
reason to be that the costs of raising such a child are
outweighed by the value of that child’s life. In Rohm
v Stroud, 386 Mich 693, 696; 194 NW2d 307 (1972), our
Supreme Court stated that the value of a minor child’s
services to a parent is at least as great as the amount
expended by the parent on the child’s support,
maintenance and education. In that wrongful death
case, our Supreme Court further stated that parents are
at least entitled to the presumption that a child is
worth his keep, and the negligent act which snuffs out
their child’s life deprives them of services at least
equal to the amount of their pecuniary outlay. 386
Mich 697.
The instant case does not involve a wrongful death
claim. However, allowing the costs of raising a child
as an element of damages logically requires the
conclusion that the nonexistence of that child would be
a benefit. [Morris v Sanchez, 746 P2d 184, 188 (Okla,
1987)]. We agree with the reasoning of the Illinois
Court of Appeals which stated:
The existence of a normal, healthy life
is an esteemed right under our laws, rather
than a compensable wrong. [Wilczynski v
Goodman, 73 Ill App 3d 51, 62; 29 Ill Dec
216; 391 NE2d 479, 487 (1979).]
In a proper hierarchy of values, the benefit of life
should not be outweighed by the expense of supporting
it. [Cockrum v Baumgartner, 95 Ill 2d 193, 201; 69 Ill
Dec 168; 447 NE2d 385 (1983).] A court “‘has no
business declaring that among the living are people who
never should have been born.’”[32] Proffitt, supra, p
51, quoting Smith v Cote, 128 NH 231, 249; 513 A2d 341,
353 (1986).
Another reason for not allowing the recovery of
child-rearing costs as an element of damages is that,
to maximize their recovery under the benefits rule,
parents must demonstrate that they did not want their
child and that the child is of minimal value to them.
Michigan should not allow “‘the unseemly spectacle of
parents disparaging the “value” of their children or
the degree of their affection for them in open court.’”
Cockrum, supra, p 202, quoting Public Health Trust v
Brown, 388 So 2d 1084, 1086, n 4 (Fla, App, 1980). A
related concern is for the child who may learn that his
parents did not want him to exist and sued to have the
person who made his existence possible provide for his
support. Wilbur v Kerr, 275 Ark 239, 242-244; 628 SW2d
568, 570-571 (1982). [Rinard, supra at 292-294.]
Thus, in the 1970s and 1980s, this Court reached conflicting
conclusions concerning the value of a healthy child’s life. On
the one hand, the Troppi and Rinard panels assumed that a trier
of fact could ascertain a “reasonable” value for that life, that
might or might not exceed the expense of the child’s support. On
the other hand, the Rinard panel concluded that the value of that
life is at least equal to the expense of the child’s support and,
further, that the benefit of that child’s life should not be
outweighed by the expense of supporting it.
This Court resolved, at least partially, this conflict in
Rouse, supra. Rouse was unquestionably a wrongful conception
case in which the plaintiffs sued over an unsuccessful tubal
ligation performed on Mrs. Rouse. Id. at 625-626. As in Troppi,
presumably as a result of the fact that the surgery was
unsuccessful, Mrs. Rouse thereafter conceived. She then
delivered a sixth, and healthy, child. While the trial court
permitted the plaintiffs to maintain the action for medical costs
and pain and suffering, it granted defendants summary disposition
with respect to plaintiffs’ claim for damages for the cost of
raising the child to the age of majority, following the decision
in Rinard, supra. See Rouse, supra at 625-626. Thereafter, on
plaintiffs’ motion, the trial court dismissed the remaining
counts in the complaint without prejudice. The plaintiffs
appealed, contending that trial court should have permitted them
to maintain an action for the cost of raising the child to
majority as part of their suit for wrongful conception. Id. at
626.
The Rouse panel held that in the context of a wrongful
conception33 action, a plaintiff may not recover the customary
cost of raising and educating the child. Id. at 631-632. In
reaching this narrow decision, the Rouse panel articulated a
broader concept and one that we consider to be of surpassing
importance:
As recognized by this Court on previous occasions,
the subjects of reproduction, contraception, and the
decision to avoid or terminate pregnancy are highly
personal subjects fraught with controversy. It is
therefore understandable that a conflict has arisen in
decisions from this Court, as well as in other
jurisdictions, with respect to whether parents may
recover the customary cost of raising a child where,
although the parents attempt to avoid pregnancy,
conception and the birth of a child occurs as a result
of the negligence of a doctor or other responsible
person. We hold, however, that such recovery should
not be available in Michigan.
We recognize that the cost of raising a child to
majority is significant and may, in certain
circumstances, impose a hardship upon the child’s
parents. We further recognize, however, that all human
life is presumptively valuable. Simply stated, a child
should not be considered a “harm” to its parents so as
to allow recovery for the customary cost of raising the
child. Our Supreme Court has held in the context of
wrongful death actions that the benefits of the
services of a minor child to the child’s parents are at
least as great as the cost of raising the child to
majority. Rohm[, supra.][34] See also Rinard, supra,
292. Similarly, in the context of a wrongful pregnancy
action, we hold as a matter of law that the value of
the life of a child will always outweigh the customary
cost of raising that child to majority. The benefits
rule is therefore inapplicable in a wrongful pregnancy
action. [Rouse, supra at 630-631; emphasis supplied.]
We recognize that the Rouse decision did not rule out a wrongful
conception action for medical costs and pain and suffering. We
further recognize that Rouse dealt with an unwanted, but healthy,
child while wrongful birth actions deal with unwanted, and
disabled, children. We do not concede, however, that an
intermediate appellate court of this state should implicitly
endorse the view that the life of a disabled child is worth less
than the life of a healthy child. If all life is presumptively
valuable, Rouse, supra at 631, how can we say that what we really
mean is that all lives except for the lives of the disabled are
presumptively valuable? If we say that the benefits rule is
inapplicable to the lives of healthy children, id., how can we
then continue, at least implicitly, to apply that rule to the
lives of disabled children? If we conclude that in a proper
hierarchy of values, the expense of supporting life should not
outweigh the benefit of that life, Rinard, supra at 293, how can
we say that what we really mean is that such expense should not
outweigh the benefit of lives of healthy children, but can
outweigh the benefit of lives of disabled children? If we say
that a court “has no business declaring that among the living are
people who never should have been born,” id., how can we continue
to say—and here virtually explicitly through the device of
compensating the parents for the expenses of that “wrongful
birth”—that courts can go about the business of declaring that
living, but disabled, children should never have been born? To
say the least, this Court’s language in its partial repudiation
of the wrongful conception doctrine in Rouse raises the most
troubling of questions about the continued viability of the
wrongful birth tort in Michigan.35
(3) Wrongful Life
As Anthony Jackson outlines:36
. . . . The claim is brought by or on behalf of the
child who alleges that she was born because of the
doctor’s negligent failure to properly advise her
parents and, as a result, has to suffer the condition.
The doctor’s negligent advice causes the pain,
suffering, and financial hardship experienced each day
by the child.
The doctor has not caused the disability itself.
But for the doctor’s negligent acts, however, the child
would not have been born and, thus, would not have
suffered the ensuing condition. The parents either
would have decided not to conceive or, if they became
aware of the condition at a later stage, would have
terminated the pregnancy in accordance with the
applicable law. . . .
In Proffitt v Bartolo, 162 Mich App 35; 412 NW2d 232 (1987), this
Court held that the wrongful life cause of action was not
available in Michigan. Proffitt involved, in Count I, the
parents’ action for wrongful birth. Count II, however, was the
parents’ action on behalf of their daughter, Maya Proffitt,
alleging that she would be unable to earn any income and
therefore seeking recovery for the “‘extensive medical,
institutional and educational’ expenses” that she would incur
after reaching age eighteen. Maya Proffitt’s parents also
requested, on her behalf, damages for the “‘severe pain and
suffering, emotional distress and pain, embarrassment and
humiliation’” resulting from her grave congenital deformities.”
Proffitt, supra at 39.
The underlying allegation of negligence involved the
defendant physician Dr. Bartolo’s treatment of Mrs. Proffitt. As
the Proffitt panel described it:
Dr. Bartolo sent Yasmin to Mercy-Memorial Hospital
in Monroe, Michigan, for studies. On February 26,
1976, the blood studies were performed, including a
test for rubella. During March, 1976, Yasmin continued
under Dr. Bartolo’s care and complained of chronic
headaches, fever, malaise, and gastrointestinal
discomfort. On March 17, 1976, Dr. Bartolo again
admitted Yasmin to the hospital for the treatment of a
parasitic infection associated with hematemesis and
headaches. Dr. Bartolo diagnosed Yasmin’s condition as
a whipworm infestation and discharged her from the
hospital on March 19, 1976. In the following months,
Yasmin continued to complain of chronic headaches,
nausea, malaise, and fever to Dr. Bartolo.
David called Dr. Bartolo on June 14, 1976, to
complain about Yasmin’s high fever. At the end of the
conversation, Dr. Bartolo advised plaintiffs that he
could no longer provide professional services to them
and that they should seek the services of another
physician. Plaintiffs retained the services of another
physician who delivered the child, plaintiff Maya S.
Proffitt, on August 23, 1976.
Plaintiffs alleged numerous instances of negligent
conduct on Dr. Bartolo’s part. Essentially, plaintiffs
alleged that Dr. Bartolo failed to exercise the
required degree of care and skill in diagnosing and
treating Yasmin, including a failure to take an
adequate history, to employ sufficient diagnostic
tests, to interpret the rubella test properly, and to
order additional tests to evaluate the risk of a
rubella or other infection which could cause congenital
fetal malformations. Plaintiffs allege that Dr.
Bartolo failed to advise them of the rubella test
results, the significance of those findings and the
necessity of further tests, and the risk of severe
congenital fetal malformations resulting from rubella
or other serious infections during Yasmin’s first
trimester of pregnancy. Plaintiffs also alleged that
Dr. Bartolo failed to advise plaintiffs of the risks to
the fetus so that plaintiffs could decide whether to
terminate the pregnancy. Plaintiffs allege that, had
Dr. Bartolo properly diagnosed Yasmin’s condition and
adequately advised them, they would have terminated
Yasmin’s pregnancy. Instead, Maya was born with
microcephaly, mental retardation, severe bilateral eye
malformations resulting in blindness, and other severe
congenital malformations caused by a rubella infection
or another intrauterine viral, parasitic or protozoic
infection transmitted to Maya during the early stages
of fetal development. [Id. at 37-39.]
The Proffitt panel first noted that in Eisbrenner v Stanley, 106
Mich App 357; 308 NW2d 209 (1981), this Court had recognized the
wrongful birth tort in a case involving rubella-caused birth
defects. Proffitt, supra at 41. The Proffitt panel stated that,
“The jurisdictions considering the issue have now almost
uniformly adopted the wrongful birth cause of action.” Id. at
42.37 The Proffitt panel then reviewed wrongful birth cases from
a number of other jurisdictions, including Harbeson v Parke-
Davis, Inc, 98 Wash 2d 460; 656 P2d 483 (1983). See Proffitt,
supra at 42-46.38 As to the wrongful birth tort, the Proffitt
panel concluded, “[a]gainst this backdrop, we conclude that the
Eisbrenner holding with regard to wrongful birth remains the law
in Michigan until changed by the Legislature or the Supreme
Court.” Id. at 46.
With respect to the wrongful life tort, however, the
Proffitt panel reached a far different conclusion. It first
noted that this Court had previously rejected this cause of
action on three occasions. Id. at 47-50, citing to Eisbrenner,
supra, Dorlin v Providence Hospital, 118 Mich App 831; 325 NW2d
600 (1982), and Strohmaier v Associates in Obstetrics &
Gynecology, 122 Mich App 116; 332 NW2d 432 (1982).
After reviewing these decisions and the decisions of other
states on the wrongful life tort, the Proffitt panel then came to
the heart of the matter:
We begin with the proposition that the wrongful birth
cause of action already exists as a valid cause of
action in this state and elsewhere. It follows, then,
that the reasons for accepting it have also been found
to be valid. As both the wrongful birth and the
wrongful life causes of action generally arise out of
the same factual situation, those reasons arguably
apply with equal validity and relevancy to the wrongful
life cause of action. Nevertheless, this Court has
previously refused to allow a wrongful life claim to
stand, the Supreme Court has refused to review that
point of view, and the Legislature has not seen fit to
act in this area. Consequently we are reluctant to
resolve all of the moral and public policy arguments
that others at a different or higher level have
declined to address. There comes a point at which
three judges on an intermediate appellate court should
restrain themselves from making new law. The decision
whether a life with birth defects has a greater or
lesser value than no life at all is beyond such a
point. Consequently we will allow the law to remain
where it stands. The “wrongful birth” claim in this
case must go to trial and the “wrongful life” claim
will remain dismissed. [Proffitt, supra at 57-58;
emphasis supplied.]
In our view, this mixed decision elevates the principle of stare
decisis over all logic. It apparently escaped the Proffitt panel
that in 1981 when this Court decided Eisbrenner, neither the
Legislature nor the Michigan Supreme Court had recognized the
wrongful birth tort. Further, although the Proffitt panel
glanced off the point, it appeared to have made no difference to
that panel that, on exactly the same facts, this Court was
continuing to recognize the wrongful birth tort while declining
to recognize the wrongful life tort.
The net result is a misshapen jurisprudence. Simply put, if
Maya Proffitt, through her parents acting as her surrogates,
could not bring an action for wrongful life in Michigan because
neither the Legislature nor the Michigan Supreme Court has
recognized the wrongful life tort, then why should those same
parents be allowed to bring an action for wrongful birth on
exactly the same facts when neither the Legislature nor the
Supreme Court has recognized the wrongful birth tort? The
answer—and it appears to us to be a rather self-evident answer—is
that, if there is any consistency to the law in this area, this
Court should not have allowed the Proffitts to bring such a
wrongful birth action. Again, to say the least, this Court’s
rejection of the wrongful life tort in Eisbrenner, Dorlin,
Strohmaier and Proffitt raises the most troubling of questions
about the continued viability of the wrongful birth tort in
Michigan.
(4) Conclusion
This Court has partially repudiated the birth-related tort
of wrongful conception and totally rejected the birth-related
tort of wrongful life. Both of these causes of action are
closely analogous to the birth-related tort of wrongful birth.
Nevertheless, this Court, without any action by the Legislature
or the Michigan Supreme Court, has continued to recognize the
tort of wrongful birth. The resulting jurisprudence defies all
logic. Below, we explore the origins of the wrongful birth tort
in Michigan and respond to various arguments for its
continuation.
B. The Origins Of The Wrongful Birth Tort In Michigan
(1) Eisbrenner
This Court first recognized the wrongful birth tort in
Eisbrenner, supra. Eisbrenner involved facts very similar to
Proffitt. The plaintiffs alleged that the defendant physician
negligently failed to diagnose Mrs. Eisbrenner’s rubella, despite
the fact that the defendant had seen test results that indicated
she had contracted the disease. The plaintiffs further alleged
that the defendant negligently failed to warn the plaintiffs of
the possibility that the child would be born with rubella-caused
defects. As in Proffitt, the plaintiffs contended that had the
defendant acted properly, he would have informed them of the risk
and that the family would have decided to terminate the pregnancy
rather than taking a chance on birth defects. Eisbrenner, supra
at 360.
The Eisbrenner panel began its analysis with a review of
Gleitman v Cosgrove, 49 NJ 22; 227 A2d 689 (1967). See
Eisbrenner, supra at 361-362. Gleitman involved a child with
birth-related defects apparently causally related to the viral
disease of German measles that Mrs. Gleitman had early in her
pregnancy. The Gleitman court assumed that the defendant
physician had affirmatively misled Mrs. Gleitman by telling her
that the German measles she had would have no effect on her
child, then in gestation. The court further assumed that Mrs.
Gleitman could have terminated the pregnancy in a fashion that
would not have subjected the participants to criminal sanctions,
but that she did not do so because she relied upon the incorrect
advice of the defendants. Gleitman, supra at 691.
Despite these assumptions, the majority of the Gleitman
court rejected claims for both wrongful life and wrongful birth.39
With respect to wrongful birth, the majority stated:
A considerable problem is raised by the claim of
injury to the parents. In order to determine their
compensatory damages a court would have to evaluate the
denial to them of the intangible, unmeasurable, and
complex human benefits of motherhood and fatherhood and
weigh these against the alleged emotional and money
injuries. Such a proposed weighing is similar to that
which we have found impossible to perform for the
infant plaintiff. When the parents say their child
should not have been born, they make it impossible for
a court to measure their damages in being the mother
and father of a defective child.
* * *
We are not here faced with the necessity of
balancing the mother’s life against that of her child.
The sanctity of the single human life is the decisive
factor in this suit in tort. Eugenic considerations
are not controlling. We are not talking here about the
breeding of prize cattle. It may have been easier for
the mother and less expensive for the father to have
terminated the life of their child while he was an
embryo, but these alleged detriments cannot stand
against the preciousness of the single human life to
support a remedy in tort. [Gleitman, supra at 693.]
The Eisbrenner panel noted that the New Jersey Supreme Court had
partially retreated from its position in Gleitman40 and declined
to follow it. Eisbrenner, supra at 364. Rather, after reviewing
a number of cases from around the country, the Eisbrenner panel,
relying heavily on Troppi, supra, held that the trial court had
properly refused to dismiss the Eisbrenners’ cause of action for
wrongful birth. Eisbrenner, supra at 367-368.
We believe it critical to note that Rouse at least partially
overruled Troppi, in the process stating that the benefits rule
should not be applied in wrongful conception cases. Thus, we
conclude that the intellectual basis in Troppi for the Eisbrenner
wrongful birth decision no longer exists.
(2) Post-Eisbrenner Decisions
We recognize, nevertheless, that this Court continued to
follow—or least mention—the Eisbrenner decision in a number of
subsequent cases.41 The basic question, then, becomes whether
this Court correctly decided Eisbrenner and its progeny. We
conclude that these cases were wrongly decided.
C. Wrongful Birth: A Misshapen Jurisprudence
(1) MCR 7.215(H)
MCR 7.215(H) provides that this Court must follow the rule
of law established by a prior published decision of the Court
issued on or after November 1, 1990, that has not been reversed
or modified by the Supreme Court or by a special conflict panel
of this Court. While this Court decided Eisbrenner, Dorling,
Strohmaier, Proffitt, and Rinard, prior to November 1, 1990, we
decided Rouse and Blair after that date. Thus, unless one can
distinguish these two cases or unless they have been later
reversed or modified, we must apply them.
We can easily distinguish Rouse. The Rouse panel observed
that Michigan case law has recognized a claim for wrongful birth
based upon a medical professional’s failure to provide
information that would have led the parents of a child to opt to
terminate the pregnancy before that child was born, Rouse, supra
at 626-627. However, this statement is dicta. The claim in
Rouse was not a wrongful birth claim. Rather, it was a wrongful
conception claim. The narrow issue in Rouse, therefore, was
whether “plaintiffs, in the context of a wrongful pregnancy
action, can seek to recover as part of their damages the
customary cost of raising and educating the child.” Id. at 627.
Thus, the Rouse summary of Michigan appellate case law regarding
wrongful birth was part of a background discussion of legal
principles. It was unnecessary to, and indeed not a part of, the
actual rationale for the decision in Rouse. As dicta, the
statements in Rouse regarding wrongful birth are not binding
precedent.
The decision in Blair stands on the same ground, but for
another reason. The Blair panel did hold that wrongful birth
claims remain viable. However, because the Supreme Court
reversed, see 456 Mich 877, the decision in Blair—even though on
other grounds that were decisive of the entire case42—this Court
is not required to follow it. Thus, with respect to both Rouse
and Blair, MCR 7.215(H) does not stand as a bar to this Court’s
reconsideration of the wrongful birth tort. Therefore, we are
free—albeit within the constraints of a proper regard for stare
decisis—to reconsider the Troppi-based holding in Eisbrenner as
carried forward in Dorling, Strohmaier, Proffitt, and Rinard, all
cases decided prior to November 1, 1990.
(2) Roe v Wade
The Proffitt panel articulated a separate reason for
continuing to recognize the wrongful birth tort:
As long as abortion remains an option allowed by
law, the physician owes a duty to furnish patients with
adequate information for them to be able to decide
whether to choose that course of action. Those who
would eliminate such a right of recovery must first
abolish the right to have an abortion—a matter not
germane to this appeal. [Proffitt, supra at 46-47;
emphasis supplied.]
This line of argument is fundamentally erroneous. While
currently prevailing United States Supreme Court precedent
recognizes a federal constitutional right to privacy, see Roe v
Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973), and holds
that this right to privacy “protects the woman from unduly
burdensome interference with her freedom to decide whether to
terminate her pregnancy,” Maher v Roe, 432 US 464, 473-474; 97 S
Ct 2376; 53 L Ed 2d 484 (1997), this right to privacy “implies no
limitation on the authority of a State to make a value judgment
favoring childbirth over abortion.” Id. at 474.
In particular, Michigan law provides for no right to an
abortion and, in fact, makes a value judgment favoring
childbirth. This Court has held that the Michigan Constitution
does not provide a right to end a pregnancy. Mahaffey v Attorney
General, 222 Mich App 325, 334-339; 564 NW2d 104 (1997). On the
contrary, the public policy of Michigan, while limited by
decisions of the United States Supreme Court, is to forbid
elective abortion. Id. at 337. As dissenting Judge O’Connell
noted in Blair, supra at 519, “Michigan refuses to publicly fund
an abortion unless the abortion is necessary to save the life of
the mother,” citing Doe v Dep’t of Social Services, 439 Mich 650,
678; 287 NW2d 166 (1992), and MCL 400.109a; MSA 16.490(19a).
Judge O’Connell further observed that, “Our state’s public policy
is manifested in numerous other ways” citing MCL 333.17014(f) and
(h); MSA 14.15(17014)(f) and (h).
Indeed, the Michigan Supreme Court has held that federal
case law imposes no obligation on government to be neutral
regarding abortion, but rather allows a state to make a value
judgment favoring childbirth over abortion. Doe, supra at 667.
The core holding in Doe was that the Equal Protection Clause of
the Michigan Constitution does not require the state to fund
abortions for women receiving public assistance, even though the
state provides financial support for childbirth to similarly
situated women receiving public assistance. See id. at 681-682.
As the state has no obligation to affirmatively aid a woman in
obtaining an elective abortion by paying for it, the state
similarly has no obligation to take the affirmative step of
imposing civil liability on a party for failing to provide a
pregnant woman with information that would make her more likely
to have an elective, and eugenic,43 abortion.
In reality, then, wrongful birth cases are not abortion
cases. If the United States Supreme Court had never decided Roe
v Wade, the Eisbrenner decision in Michigan would have been the
same, as it takes its basic rationale from Troppi, a pre-Roe v
Wade decision. Conversely, eliminating the tort of wrongful
birth in Michigan would have no effect whatever upon the federal
constitutional right that the Roe v Wade Court recognized.44
(3) The Slippery Slope Of The Benefits Rule
At its intellectual core, the wrongful birth tort this Court
created in Eisbrenner relies on the benefits rule this Court
adopted in Troppi. To say the very least, continued reliance on
this rule has some very far-reaching, and profoundly disturbing,
consequences. This rule invites the jury in wrongful birth cases
to weigh the costs to the parents of a disabled child of bearing
and raising that child against the benefits to the parents of the
life of that child. This rule thus asks the jury to quantify the
unquantifiable with respect to the benefits side of the equation.
Further, to posit a specific question: how does a jury measure
the benefits to the parents of the whole life of the disabled
child, when the potential of that child is unknown at the time of
suit? How, for example, would a hypothetical Grecian jury,
operating under Michigan jurisprudence, measure the benefits to
the parents of the whole life of Homer, the blind singer of songs
who created the Iliad and the Odyssey? Absent the ability to
foretell the future and to quantify the value of the spoken and
then the written word, how, exactly, would the jury do that?
Further, the use of the benefits rule in wrongful birth
cases can slide ever so quickly into applied eugenics. The very
phrase “wrongful birth” suggests that the birth of the disabled
child was wrong and should have been prevented. If one accepts
the premise that the birth of one “defective” child should have
been prevented, then it is but a short step to accepting the
premise that the births of classes of “defective” children should
be similarly prevented, not just for the benefit of the parents
but also for the benefit of society as a whole through the
protection of the “public welfare.” This is the operating
principle of eugenics. James E. Bowman45 provides a dark, single
sentence description of eugenics: “Eugenics espouses the
reproduction of the ‘fit’ over the ‘unfit’ (positive eugenics)
and discourages the birth of the ‘unfit’ (negative eugenics).”46
Paul A. Lombardo more broadly, and more charitably, defines
eugenics as the idea that the human race can be gradually
improved and social ills simultaneously eliminated through a
program of selective procreation47 and describes its most
enthusiastic American advocates:48
Francis Galton, Karl Pearson, and others who
called themselves eugenicists believed in improving the
human condition through the use of science. They
understood their field as the marriage of the
biological sciences, including medical genetics, with
the then new discipline of biostatistics. The most
passionate of American eugenicists, such as Charles
Davenport and Harry Laughlin, wished to develop a
taxonomy of human traits and to categorize individuals
as “healthy” or “unhealthy,” and “normal” or
“abnormal,” within their classification scheme.
Working under the presumption that most, if not all,
human traits are transmitted genetically, the
eugenicists encouraged educated, resourceful, and self-
sufficient citizens to mate and produce “wellborn”
eugenic children. In contrast, the dysgenic were
discouraged from reproducing. Harry Laughlin called
dysgenic groups “socially inadequate” and defined them
to include: the feebleminded, the insane, the
criminalistic, the epileptic, the inebriated or the
drug addicted, the diseased—regardless of etiology, the
blind, the deaf, the deformed, and dependents (an
extraordinarily expansive term that embraced orphans,
“ne’er-do-wells,” tramps, the homeless and paupers.)
To our eyes, this concept appears simultaneously cruel and
laughable, but we should remember that the concept, and the
values, of eugenics had a profound impact on American society.
We should also recall that the courts were not above the use of
this type of rhetoric. One of the most respected jurists in
American history, Justice Oliver Wendell Holmes, wrote the
decision in Buck v Bell, 274 US 200; 47 S Ct 584; 71 L Ed 1000
(1927). As Lombardo describes the opinion:49
. . . Justice Holmes borrowed language directly
from the Virginia law’s preamble, and repeated its
conclusion that “experience has shown that heredity
plays an important part in the transmission of
insanity, [and] imbecility. . . .” Holmes then
endorsed the law’s procedures and approved the
reasoning and result in the Virginia courts that
reviewed the law, concluding with one of the most
callous and elitist statements in Supreme Court
history: “[i]t is better for all the world, if instead
of waiting to execute degenerate offspring for crime,
or to let them starve for their imbecility, society can
prevent those who are manifestly unfit from continuing
their kind.” In singling out the helplessly dependent
genetic imbecile and the congenitally deficient
criminal, Holmes emphasized the genetic determinism
that eugenic theory had incorporated. Holmes’ choice
of a public health law analogy wedded the imagery of a
plague with the idea of cleansing the social fabric
through sterilization; “[t]he principle that sustains
compulsory vaccination is broad enough to cover cutting
the Fallopian tubes.” This statement suggests that
wiping out an epidemic with a vaccine was comparable to
wiping out crime and mental disease with sterilization.
Justice Holmes’ most dramatic statement in the opinion
included a memorable comment that posed a seemingly
irrefutable public policy conclusion: “three
generations of imbeciles are enough.”
Finally, we should not forget the influence that the Third
Reich’s experiments with sterilization had upon the American
eugenics movement. As Lombardo50 notes, Dr. Joseph DeJarnette,
who testified as an expert witness in the Buck trial, made the
following comments on those experiments:
No person unable to support himself on account of
his inherited mental condition has a right to be born.
. . . In Germany the sterilization law embraces
chronic alcoholics, certain hereditary physical
diseases, the hereditarily blind and deaf, the
criminally insane, feebleminded and epileptic. [B]y
December 31, 1934 Germany had sterilized 56,224
[persons].
Lombardo51 notes that Dr. DeJarnette continued to express his
admiration for Hitler’s campaign in the good doctor’s last
official comment on sterilization in 1938:
Germany in six years has sterilized about 180,000[52
] of her unfit while the United States with
approximately twice the population has sterilized about
27,869 to January 1, 1938, in the past 20 years. The
death rates in Virginia from sterilization is [sic]
negligible—not over one in a thousand. . . . The fact
that there are 12,000,000 defectives in the United
States should arouse our best endeavors to push this
procedure to the maximum.
To our ears, at the close of the Twentieth Century, this talk of
the “unfit” and of “defectives” has a decidedly jarring ring; we
are, after all, above such lethal nonsense. But are we? We know
now that we all have at least five recessive genes but, according
to Bowman,53 when scientists map the human genome, they will
unveil many more potentially harmful genes in each of us. Bowman
states that, “Psychoses, hypertension, diabetes, early- and late-
appearing cancers, degenerative disorders, susceptibility genes
for communicable diseases, genes for various mental
deficiencies,[54] aging genes, and other variations and disorders
will be ascertained.” Will we then see the tort of wrongful
birth extended to physicians who neglect or misinterpret genetic
evidence and thereby fail to extend the option of a eugenic
abortion to the unsuspecting parents of a genetically “unfit” and
“defective” child? Our current acceptance of the wrongful birth
tort would require the answer to this question in Michigan to be:
yes.
We further note that it is but another short half step from
the concept of preventing the birth of an “unfit” or “defective”
child to proposing, for the benefit of the child’s overburdened
parents and of the society as a whole, that the existence of the
child should not be allowed to continue. Again, this sounds
preposterous, but is it? As described by Bowman:55
Daniel Callahan, the former President and Founder
of the Hastings Center, the preeminent center for
bioethics in the United States, has proposed age-based
rationing of health care for elderly persons to
alleviate escalating health care costs. Pain relief
would be in order, but not life-saving measures,
including nutrition. In short, aged individuals past
their late seventies or early eighties should go
quietly into the night in order that the generation to
follow would have access to health care—in their early
years. . . . [Emphasis supplied.]
If the elderly have a duty to die—indeed, to be starved to
death—then why not the disabled child? After all, if that child
never should have been born, then that child has no real right to
go on living, thereby imposing the costs of the child’s continued
existence upon the parents and society. This, we conclude, is
the logical end of the slippery slope inherent in the application
of the benefits rule through the wrongful birth tort.
(4) Conclusion
We conclude that this intermediate appellate court should
not continue to recognize the wrongful birth tort without the
slightest hint of approval from the Michigan Supreme Court or our
Legislature. At least six states56 have taken legislative action
to prohibit “wrongful birth” suits while one state57 has taken
legislative action to permit such suits. If the society is to
recognize such a tort, it should do so through the action of a
majority of the Legislature, whose role it is to set social
policy. We therefore reconsider our pre-1990 decisions
establishing the wrongful birth tort and hold that, as a matter
of law, it has no continued place in our jurisprudence.
We recognize that our decision to abolish a tort cause of
action for “wrongful birth” marks a substantial change from the
rule of law in force since the decision in Eisbrenner, supra in
1981. In determining whether to give an opinion that has the
effect of changing a rule of law complete retroactive effect, we
should consider (1) the purpose served by the new rule, (2) the
extent of reliance on the old rule and (3) the effect of
retroactive application on the administration of justice.
Lincoln v General Motors Corp, 231 Mich App 262, 267-268; 586
NW2d 241 (1998). While we believe our rejection of a tort cause
of action for “wrongful birth” to be a much sounder rule of law
than the previous recognition of a wrongful birth tort, we also
recognize that the tort was recognized for a period of many years
and that attempts to apply our decision to pending litigation
might have a disruptive effect on the administration of justice.
Accordingly, our holding is to apply to this case (because
application of the holding to this case which our panel was
already considering will not be disruptive to the administration
of justice) and to bar any cause of action for wrongful birth in
a complaint filed after the release of this opinion. See Parker
v Port Huron Hospital, 361 Mich 1, 28; 105 NW2d 1 (1960)
(applying a new rule of law in a civil case “to the instant case
and to all future causes of action arising after September 15,
1960, the date of the filing of this opinion”). 58
D. The Statute Of Limitations
Here, the Taylors’ wrongful birth claim was essentially a
claim of medical malpractice. Dorlin v Providence Hospital, 118
Mich App 831, 836; 325 NW2d 600 (1982). A plaintiff in a medical
malpractice action must bring the claim within two years of when
the claim accrued, or within six months of when he discovered or
should have discovered the claim, which ever is later.59 MCL
600.5805(4); MSA 27A.5805(4); MCL 600.5838a(2); MSA
27A.5838(1)(2); Solowy v Oakwood Hospital Corp, 454 Mich 214,
219; 561 NW2d 843 (1997). Because it is undisputed that the
Taylors’ wrongful birth claim is based on medical malpractice,
the date of the accrual of the claim is governed by MCL
600.5838a(1); MSA 27A.5838(1)(1); Dorlin, supra at 836. A
medical malpractice claim accrues “at the time of the act or
omission that is the basis for the claim of medical malpractice,
regardless of the time the plaintiff discovers or otherwise has
knowledge of the claim.” MCL 600.5838a(1); MSA 27A.5838(1)(1);
Solowy, supra at 220. Here, the act or omission that formed the
basis of the Taylors’ claim was Kurapati’s interpretation of the
ultrasound on December 4, 1993. Thus, the Taylors had until
December 4, 1995, to file their claim. By filing their initial
complaint on March 26, 1996, the Taylors failed to file within
the applicable limitations period and summary disposition was
appropriate.
The Taylors maintain that a wrongful birth claim does not
accrue until the birth of the child. It is true that a tort
action generally accrues when all of the necessary elements of
the cause of action have occurred and can be pleaded in a
complaint. Luick v Rademacher, 129 Mich App 803, 806; 342 NW2d
617 (1983). However, our Legislature created an exception to
that general rule in the case of medical malpractice actions when
it enacted MCL 600.5838a(1); MSA 27A.5838(1)(1). Again, under
Michigan law, a medical malpractice action accrues at the time of
the act or omission that is the basis for the claim regardless of
the time the plaintiff discovers or otherwise has knowledge of
the claim. MCL 600.5838a(1); MSA 27A.5838(1)(1) [emphasis
supplied.]. Therefore, we find no merit in the Taylors’
assertion that their claim accrued upon the birth of the child.
The Taylors further argue that their wrongful birth claim accrued
on the last date that Brandy Taylor could have obtained an
abortion. However, the Taylors have offered no authority in
support of their position. MCL 600.5838a(1); MSA 27A.5838(1)(1)
is controlling with respect to the accrual date. Dorlin, supra
at 836.
III. Negligent Infliction Of Emotional Distress
The Taylors argue that the trial court erred in granting
defendants’ motion for summary disposition with respect to their
claim of negligent infliction of emotional distress where they
suffered severe emotional distress witnessing the birth of their
child. We disagree. Defendants moved for summary disposition of
plaintiff’s negligent infliction of emotional distress claim
pursuant to MCR 2.116(C)(7), (8), and (10). The order granting
summary disposition did not indicate under which subrule of MCR
2.116 the trial court granted defendants’ motion. We conclude
that summary disposition was appropriate under both MCR
2.116(C)(8) and (10).
A motion for summary disposition pursuant to MCR 2.116(C)(8)
tests the legal sufficiency of a claim by the pleadings alone.
Jackson v Oliver, 204 Mich App 122, 125; 514 NW2d 195 (1994).
All factual allegations in support of the claim must be accepted
as true, as well as any reasonable inferences that can be drawn
from the facts. Id. The motion should be granted only where the
claim is so clearly unenforceable as a matter of law that no
factual development could possibly justify a right of recovery.
Id. A motion for summary disposition pursuant to MCR
2.116(C)(10) tests the factual support for a claim and may be
granted when, except for the amount of damages, there is no
genuine issue of material fact and the moving party is entitled
to judgment or partial judgment as a matter of law. Michigan
Mutual, supra at 85. The court must consider the documentary
evidence submitted by the parties and, giving the benefit of
reasonable doubt to the nonmoving party, must determine whether a
record might be developed that would leave open an issue upon
which reasonable minds might differ. Id.
A plaintiff may recover for negligent infliction of
emotional distress where 1) the injury threatened or inflicted on
the third person is a serious one, of a nature to cause severe
mental disturbance to the plaintiff, 2) the shock results in
actual physical harm, 3) the plaintiff is a member of the third
person’s immediate family, and 4) the plaintiff is present at the
time of the accident or suffers shock “fairly contemporaneous”
with the accident. Wargelin, supra at 81. The Taylors’ claim is
fatally flawed where both the parents acknowledged that they did
not see their child’s disabilities at or immediately after her
birth. Brandy Taylor’s deposition testimony indicated that she
did not know anything was wrong with Shelby Taylor and that the
doctors swept the child out of the room before she had the chance
to see her. Brian Taylor testified that he noticed something
about Shelby Taylor’s arm, but that the child was taken out of
the room before he could notice more of the disabilities. The
Taylors’ physician was able to discuss the child’s disabilities
with the Taylors before they saw her. The undisputed facts of
this case do not support a claim for negligent infliction of
emotional distress. Cf. Wargelin, supra at 86-88. Thus, summary
disposition was appropriate pursuant to MCR 2.116(C)(10). In
addition, the Taylors failed to allege that the shock of Shelby
Taylor’s birth caused them actual physical harm. Therefore,
summary disposition pursuant to MCR 2.116(C)(8) was also
appropriate. Id.
Affirmed.
/s/ William C. Whitbeck
/s/ Michael R. Smolenski
STATE OF MICHIGAN
COURT OF APPEALS
BRANDY TAYLOR and BRIAN TAYLOR, FOR PUBLICATION
Individually, and BRANDY TAYLOR, June 25, 1999
as Next friend and Mother of
SHELBY TAYLOR, a Minor,
Plaintiffs-Appellants,
v No.204908
Wayne Circuit Court
SURENDER KURAPATI, M.D., and LC No.96-637564 NH
ANNAPOLIS HOSPITAL, assumed name
of UNITED CARE, INC.,
Defendants-Appellees.
Before: Doctoroff, P.J., and Smolenski and Whitbeck, JJ.
DOCTOROFF, P.J. (concurring in part and dissenting in part).
I concur with the majority’s conclusion that plaintiffs’
wrongful birth claim is barred by the statute of limitations and
with the majority’s resolution of plaintiffs’ negligent
infliction of emotional distress claim. However, I dissent from
the majority opinion with respect to its purported abolition of
the wrongful birth tort where this Court’s recognition of that
tort was not challenged by the parties or decided by the trial
court.
First, the majority’s attempt to abolish the wrongful birth
tort is in vain where its discussion with respect to whether this
Court should continue to recognize that tort, and its purported
abolition of the tort, is merely dicta with no precedential
value. “[S]tatements concerning a principle of law not essential
to determination of the case are obiter dictum and lack the force
of an adjudication.” Roberts v Auto-Owners Ins Co, 422 Mich 594,
597-598; 374 NW2d 905 (1985). In the instant case, defendants
moved for summary disposition on the ground that plaintiffs’
wrongful birth claim was barred by the statute of limitations.
Thus, with respect to the wrongful birth claim, the only issue
before us was whether the wrongful birth claim was barred by the
statute of limitations. A review of the complaint, the answers
to the complaint, the affirmative defenses, the dispositive
motions, the transcript of the summary disposition motion
hearing, the claim of appeal, and the appellate briefs reveals
that this Court’s recognition of the wrongful birth tort was
never challenged by the parties. The only determination
essential to the narrow issue raised by the parties with respect
to the wrongful birth claim was whether plaintiffs’ complaint was
filed within the applicable statute of limitations period. A
discussion of the history of the wrongful birth tort and related
torts, and a conclusion that we should no longer recognize
wrongful birth claims, was not essential to the determination of
this case and was, in my opinion, a waste of judicial time and
resources where, as dicta, the discussion and conclusion are of
no precedential value.
Moreover, the majority’s conclusion that the wrongful birth
tort should be abolished was made without the aid of briefing or
argument by the parties. “It is well settled that issues neither
briefed nor argued cannot be definitively decided, and that the
Court’s pronouncements, especially dicta, without briefing and
argument, are not stare decisis.” Quinton v General Motors Corp,
453 Mich 63, 74; 551 NW2d 677 (1996) (Levin, J). This is an
appellate court that is intended to review issues raised by the
parties, and it is not the job of this Court to manufacture
issues to be decided. The majority does not limit its review to
issues raised or considered below, but takes it upon itself to
formulate an issue and then decide that issue when it has not
been asked to do so. The majority’s opinion is an exercise in
futility, which should be avoided by this Court. Our caseload
and workload are significant enough without judges manufacturing
issues that are irrelevant to the issues raised and briefed by
the parties. The material included in the majority opinion is
best reserved for an article in a legal periodical, where a judge
is free to write about issues of concern to him or her. An
opinion that is written for the benefit of parties and lawyers is
not the proper place for a judge to voice his or her own views.
This is unnecessary judicial activism, which is usually scorned
by the majority. I would have decided plaintiffs’ argument that
their wrongful birth claim was barred by the statute of
limitations on that narrow ground, alone. The consideration of
whether this Court should continue to recognize wrongful birth
claims should be left for a day when that issue is before us.
Thus, because the issue was not raised, briefed, or argued by the
parties below or on appeal, I cannot join in the majority opinion
to the extent that it discusses whether this Court should
continue to recognize a wrongful birth cause of action and
concludes that it should not.
Nevertheless, I concur with the majority with respect to its
conclusion that the trial court properly granted summary
disposition of plaintiffs’ wrongful birth and negligent
infliction of emotional distress claims. I agree that
plaintiffs’ wrongful birth claim accrued when defendant Kurapati
interpreted the ultrasound on December 4, 1993, and that, by
failing to bring their claim within two years of the date their
claim accrued, plaintiffs failed to file their claim within the
applicable statute of limitations period. MCL 600.5805(4); MSA
27A.5805(4); MCL 600.5838a(2); MSA 27A.5838(1)(2). Thus, I
concur with the majority to the extent that it addresses the
statute of limitations issue and concludes that summary
disposition was proper on that basis pursuant to MCR 2.116(C)(7).
I further concur with the majority’s resolution of plaintiffs’
negligent infliction of emotional distress claim. The undisputed
facts did not support a claim for negligent infliction of
emotional distress, and plaintiffs failed to allege that the
shock of their daughter’s birth caused them physical harm. Thus,
summary disposition was appropriate pursuant to MCR 2.116(C)(8)
and (10).
/s/ Martin M. Doctoroff
_______________________________
1 Shelby Taylor’s cause of action was presumably for “wrongful
life.” Michigan does not recognize a cause of action for
wrongful life, and the Taylors have not raised the issue on
appeal. See Rouse v Wesley, 196 Mich App 624, 627; 494 NW2d 7
(1992); Proffitt v Bartolo, 162 Mich App 35, 58; 412 NW2d 232
(1987); Dorlin v Providence Hosp, 118 Mich App 831, 835; 325 NW2d
600 (1982); Eisbrenner v Stanley, 106 Mich App 357, 367; 308 NW2d
209 (1981).
2 In late March, 1996, in case number 96-617726 NH, the Taylors
filed a complaint against defendants for medical malpractice. In
an order dated August 12, 1996, the Taylors’ claim was dismissed
without prejudice for failure to comply with the statutory notice
of intent provisions. The order provided that “the statutory
notice provision shall expire on August 19, 1996 and plaintiff
may refile its complaint on August 20, 1996 and that the Statute
of Limitations is tolled through August 19, 1996.” We did not
receive file number 96-617726 NH, and therefore rely upon the
parties’ briefs to supply the procedural background. That the
complaint was initially dismissed is not at issue in this case.
3 See Poet v Traverse City Osteopathic Hospital, 433 Mich 228;
445 NW2d 115 (1989) (suit based on alleged negligence in prenatal
treatment resulting in birth of baby with permanent brain
damage); May v William Beaumont Hospital, 180 Mich App 728; 448
NW2d 497 (1989) (the defendant hospital found liable for injuries
to baby due to malpractice in prenatal treatment); Soto v Lapeer
Co, 169 Mich App 518, 520; 426 NW2d 409 (1988) (suit alleging in
part that death of two-month-old baby was due to negligent use of
forceps during baby’s delivery).
4 See Proffitt v Bartolo, supra at 41, n 2: “Both causes of
action [“wrongful birth” and “wrongful life”] which we consider
must also be distinguished from the situation where negligent
injury to a normal fetus results in the birth of a child with
birth defects.”
5 The phrase “terminate the pregnancy” is, of course, a
euphemism; the plain English word is abortion. As we do not
believe that the abortion cases control the issues in this matter
and as the word abortion is so value-laden in our society, we
have elected to use the euphemism except when discussing the
abortion cases directly.
6 See, e.g. DeGrella v Elston, 858 SW2d 698 (Ky, 1993).
7 See, e.g., In Re Browning, 568 So2d 4 (Fla, 1990).
8 See, e.g., Cruzan v Director, Missouri Dep’t of Health, 497 US
261, 278; 110 S Ct 2841; 111 L Ed 2d 224 (1990).
9 MCL 700.496; MSA 27.5496 allows an adult to designate a
“patient advocate” to generally make medical decisions on behalf
of the adult in the event of incapacity. However, MCL
700.496(a)(e); MSA 27.5496(9)(e) provides:
A patient advocate may make a decision to withhold or
withdraw treatment which would allow a patient to die
only if the patient has expressed in a clear and
convincing manner that the patient advocate is
authorized to make such a decision, and that the
patient acknowledges that such a decision could or
would allow the patient’s death.
10 All fifty states have some form of advance directive statute.
As noted in the preceding footnote, the Michigan statute allows
an adult to, in writing, name a patient advocate.
11 See Michigan Do-Not-Resuscitate Procedure Act, MCL 333.1051 et
seq.; MSA 14.15(1951) et seq.
12 See, e.g., In Re Quinlan, 70 NJ 10; 355 A2d 647 (1976).
13 Michigan law does not allow a surrogate decisionmaker to direct
the withdrawal of life-sustaining medical treatment from a
conscious, but incapacitated, patient without clear and
convincing evidence that “while competent, [the patient] made a
statement of his desire to refuse life-sustaining medical
treatment under these circumstances.” Martin, supra at 233-234.
Likewise, we consider it unlikely that the Michigan Supreme Court
would allow a surrogate decisionmaker to withdraw life-sustaining
treatment from a never-competent patient. “If we are to err
. . . we must err in preserving life.” Id. at 208.
14 See Cruzan, supra at 271, citing Superintendent of Belchertown
State School v Saikewica, 370 NE2d 417, 426 (Mass, 1977).
15 Jackson, Action for wrongful life, wrongful pregnancy, and
wrongful birth in the United States and England, 17 Loyola, LA
Int’l & Comp LJ 535, 583 (1995).
16 See, e.g., Cockrum v Baumgartner, 425 NE2d 968 (1981). See
also Rouse, supra at 625, 627.
17 See, e.g. Troppi v Scarf, 31 Mich App 240; 187 NW2d 511 (1971).
18 See, e.g., Rinard v Biczak, 177 Mich App 287; 441 NW2d 441
(1989)
19 See, e.g., Miller v Johnson, 343 SE2d 301 (Va, 1986).
20 The specific costs that the Troppis claimed were “(1) Mrs.
Troppi’s lost wages; (2) medical and hospital expenses; (3) the
pain and anxiety of pregnancy and childbirth; and (4) the
economic costs of rearing the eighth child.” Troppi, supra at
244.
21 Finding that the defendant pharmacist’s conduct, in negligently
supplying a drug other than the drug requested, constituted a
clear breach of duty, Troppi, supra, at 245.
22 Finding that, “The possibility that she [Mrs. Troppi] might
become pregnant was certainly a foreseeable consequence of the
defendant’s failure to fill a prescription for birth control
pills; we, therefore, could not say that it was not a proximate
cause of the birth of the child.” Troppi, supra, at 245-246.
[Footnote omitted.]
23 Finding that:
The medical and hospital expenses of Mrs. Troppi’s
confinement and her loss of wages arose from the
defendant’s failure to fill the prescription properly.
Pain and suffering, like that accompanying childbirth,
have long been recognized as compensable injuries.
[Troppi, supra at 246.]
24 According to the Troppi panel, the trial court “declared that
whatever damage plaintiffs suffered was more than offset by the
benefit to them of having a healthy child.” Troppi, supra at
244.
25 The “same interest” rule is another formulation of the benefits
rule, whereby if the defendant’s tortious conduct conferred a
benefit to the same interest that was harmed by his conduct, the
dollar value of the benefit is to be subtracted from the dollar
value of the injury in arriving at the damages properly
awardable. Troppi, supra at 255, citing Burtraw v Clark, 103
Mich 383; 61 NW 552 (1894); 22 Am Jur 2d, Damages, § 204, p 283;
and McCormick, Damages, 40, p 146.
26 11 D & C 2d 41, 45, 46 (Pa, 1957).
27 The Troppi panel cited no source for this conclusion.
28 Again, the Troppi panel cited no source for this conclusion.
29 In Green, as described by this Court in Rouse, supra at 628,
the plaintiff wife requested that the defendant physician perform
a tubal ligation immediately following the birth of her third
child. The defendant failed to perform the surgery and,
according to the plaintiffs, also failed to inform the plaintiffs
that the surgery had not been performed. The plaintiffs
consequently failed to take birth control precautions and a
fourth child was born. The plaintiffs sued the defendant,
seeking in part to recover the cost of raising the child. Id.
The jury awarded the plaintiffs $95,000. Green, supra at 547.
The Green panel affirmed, rejecting the defendant’s argument that
the award of such damages would be speculative, noting that the
computation of the expense of raising a child, although
difficult, should not operate to bar recovery. Id. at 547-548.
30 See Anno: Recoverability of cost of raising normal, health
child born as result of physician’s negligence or breach of
contract or warranty, 89 ALR 4th 632, § 3, pp 640-644 & 1998
Supp, 89 ALR 4th 632, § 3, p 13.
31 Citing to Morris v Sanchez, 746 P2d 184, 187-188 (Okla, 1987)
and Cockrum v Baumgartner, 95 Ill2d 193, 198-199; 69 Ill Dec 168;
447 NE2d 385, 387-388 (1983).
32 The phrase may have its origin in the New Testament (See
Matthew, 26:24 (Holman Verse Reference Jewel Edition): “[I]t had
been good for that man [Judas Iscariot] if he had not been
born.”) If so, the implicit comparison between Judas, the
betrayer of Jesus, and the disabled is chilling.
33 The Rouse panel used the term “wrongful pregnancy.” Rouse,
supra at 632.
34 In a footnote, the Rouse panel stated, “This holding would seem
to undermine the basic premise in Troppi, which relies upon the
benefits rule.” Rouse, supra at 631, n 3.
35 While consideration of some of the rationale of “wrongful
conception” cases is analytically crucial to our decision, the
case at hand involves a claim for “wrongful birth,” not wrongful
conception. Thus, we do not address the issue of whether
wrongful conception claims, as distinct from wrongful birth
claims and as limited by Rouse, supra, remain tenable.
36 Jackson, supra at 536-537.
37 However, that seems to have been a considerable overstatement.
While the Proffitt panel cited Anno: Tort liability for
wrongfully causing one to be born, 83 ALR 3d 15 in support of its
statement, that annotation in fact lists a number of cases in
which courts in other jurisdictions have rejected theories of
liability premised on damages supposedly suffered by the parents
from the “wrongful birth” of a child or by a child from the
child’s supposedly “wrongful life.” Id., § 3(b), pp 36-40.
38 In Harbeson, the Washington court appeared to adopt the
benefits rule in wrongful birth cases by holding that the parents
could recover for the medical expenses attributable to the
child’s “defective condition” and for the emotional injury caused
by the birth of the “defective” child though the jury could also
consider countervailing emotional benefits attributable to the
birth of the child. Proffitt, supra at 45.
39 In the process citing Theocritus: “‘For the living there is
hope, but for the dead there is none.’” Gleitman, supra at 693.
40 See Berman v Allan, 80 NJ 421; 404 A2d 8 (1979), recognizing a
parents’ cause of action for wrongful birth, partially based upon
a recognition that, under Roe v Wade, 410 US 113; 93 S Ct 705; 35
L Ed 2d 147 (1973), the mother’s right to terminate the pregnancy
during the first trimester was not subject to state interference.
41 See Dorlin, supra at 835 (“The Eisbrenner Court did find that
the parents had a cause of action and they could seek damages for
both medical expenses and mental distress.”); Strohmaier, supra
at 119 (“In the Eisbrenner opinion, the panel held that, although
the parents could seek damages for both medical expenses and
mental distress, the child’s claim did not constitute a valid
cause of action.”); Proffitt, supra at 46 (“[W]e conclude that
the Eisbrenner holding with regard to wrongful birth remains the
law in Michigan until changed by the Legislature or the Supreme
Court.”); Rinard, supra at 290 (“A cause of action can be
maintained in Michigan for failure to diagnose pregnancy.”),
Rouse, supra at 626-627 (citing Rinard, supra, and Proffitt,
supra, to the effect that “Wrongful birth is a tort action
brought by parents of a child with a birth defect against a
doctor or other person whose negligent failure to inform the
parents of the risk of the birth defect deprived the parents of
the opportunity to make an informed decision to avoid or
terminate the pregnancy.”); and Blair v Hutzel Hospital, 217 Mich
App 502, 508; 552 NW2d 507 (1996), rev’d 456 Mich 877 (1997)
(after discussing Eisbrenner, Proffitt, Rinard, and Rouse,
holding that, “The trial court properly denied summary
disposition of the wrongful birth claim because that is still a
viable cause of action in this state.”)
42 We note that the only matter considered by the Blair panel of
this Court was whether the trial court properly granted summary
disposition in favor of the defendant hospital on the wrongful
birth claim brought by the plaintiff in that case. See Blair,
supra at 217 Mich App 504-505. The decision of the Blair panel
was to reverse the grant of summary disposition and remand the
case for trial on the plaintiff’s wrongful birth complaint. Id.
at 512. However, the Supreme Court reversed that decision and
reinstated the trial court’s grant of summary disposition in
favor of the defendant. Blair, supra, 456 Mich 877. Thus, the
Supreme Court reversed the decision of this Court in Blair in its
entirety, although the Supreme Court did so without addressing
the Blair panel’s discussion of the continuing vitality of the
wrongful birth cause of action in Michigan. Because the Supreme
Court entirely reversed the Blair panel’s decision, we conclude
that under the plain language of MCR 7.215(H)(1), nothing in the
Blair panel’s opinion is binding precedent under that subrule.
We observe that MCR 7.215(H)(1) establishes a bright line test
and that such a test cannot be maintained if every opinion is to
be parsed into its smallest components.
43 The concurrence in Gleitman, supra at 701, defined a “eugenic
abortion” as one based on the probably or possibility that the
fetus may be born in a mentally or physically abnormal condition.
By contrast, the concurrence defined a “therapeutic abortion” as
an induced interruption of a pregnancy, the continuance of which
will jeopardize the life or health of the mother. Id. at 700.
44 We also note the inherent proof problem in making a finding
that an abortion would have occurred had the parents been
informed of the child’s potential disability. In this regard,
Weymers v Khera, 454 Mich 639, 649; 563 NW2d 647 (1997)
considered the “doctrine of lost opportunity,” that allows for
recovery when a defendant’s negligence “possibly” (i.e. with a
probability of fifty percent or less) caused the plaintiff’s
injury. The Court ultimately held that no cause of action exists
for the loss of an opportunity to avoid physical harm less than
death, id. at 649, in the process stating that it refused “to
discard causation” in negligence actions of the type there
presented, id. at 653. In wrongful birth actions, we note the
difficulty in finding causation based upon after-the-fact,
possibly self-serving, testimony that the parents would have
sought an abortion had they known of the child’s potential
disability.
45 See Bowman, The road to eugenics, 3 U Chic L Sch Roundtable 491
(1996).
46 Bowman goes on to amplify upon his description:
The delineation of the “fit” from the “unfit” is
ancient. Ancient Greeks proposed to control mating
among the guardian (upper) class to ensure that the
offspring would produce the “best and the brightest.”
In Plato’s Republic, Socrates explores the idea that “a
life spent in the doctor’s hands is not worth having,”
that medicine should only be practiced on those who
have healthy constitutions and healthy habits; and
“weak” parents should not be allowed to have “weak”
children. The American Eugenics Movement in the 1920s
targeted as “unfit” individuals with epilepsy,
criminals, the crippled and deformed; persons who were
mentally defective or who had low intelligence;
patients with communicable diseases such as syphilis,
tuberculosis, or leprosy; alcoholics and drug abusers;
poor people; and Eastern European immigrants to the
United States. The Nazis marked Jews, Gypsies, and
other so-called non-Aryan peoples, individuals who were
mentally defective, and persons with incurable or
mental illnesses—to name a few. In the heyday of
eugenics, sterilization, infanticide, euthanasia, or a
variety of “final solutions” were tools for the
prevention or elimination of the “unfit.” [Id. at
492.]
47 See Lombardo, Medicine, eugenics and the Supreme Court: From
coercive sterilization to reproductive freedom, 13 J Contemp
Health L & Pol’y 1-2 (1996).
48 Lombardo, supra at 2-3.
49 Id. at 10-11.
50 Id. at 11-12.
51 Id. at 12.
52 Lombardo notes that the Nazi program eventually claimed between
360,000 and 3,500,000 victims, commenting that “the numbers are
elusive.” Id.
53 Bowman, supra at 492-493.
54 Bowman notes that:
Kay Jamison, Professor of Psychiatry at Johns
Hopkins Medical School, who also serves on the National
Advisory Committee for Human Genome Research,
discovered an incidence of manic depressive illness
among poets, composers, and other artists of from 30 to
50 percent. If we are ever able to prevent manic
depressive illness by prenatal diagnosis and
abortion—or cure manic depressive illness—there could
be a detrimental effect on creativity. Samuel
Coleridge Taylor, Emily Dickinson, T.S. Eliot, Victor
Hugo, Samuel Johnson, Edna St. Vincent Millay, Ezra
Pound, Edgar Allan Poe, Alfred Lord Tennyson, Walt
Whitman, Hans Christian Anderson, Honore de Balzac,
Charles Dickens, William Faulkner, Hector Berlioz,
Handel, Gustav Mahler, Rachmaninoff, Rossini,
Tchaikovsky, Irving Berlin, Cole Porter, Charles
Parker, Paul Gaugin, Vincent van Gogh, Michelango, and
Jackson Pollock could have been on an unfit hit list.
[Id. at 514.]
55 Id. at 503.
56 Idaho (see Idaho Code, 5-334); Indiana (see Ind Code Ann, 34-1-
1-11); Minnesota (see Minn Stat Ann, 145.424); Missouri (see Mo
Ann Stat, 188.130); Pennsylvania (see 42 Pa Cons Stat Ann, 8305);
and South Dakota (see SD Codified Laws Ann, 21-55-2).
57 Maine (see Me Rev Stat Ann, title 24, § 2931(2)).
58 Contrary to our colleague’s statement in his separate
concurrence/dissent, our decision to abolish the tort of wrongful
birth is not “merely dicta with no precedential value.” Post at
___. Rather, we decide this case with two alternative holdings,
neither of which may be considered dicta because both are equally
decisive: (1) we affirm the trial court’s grant of summary
disposition in favor of defendants on the wrongful birth claim
because the tort of wrongful birth is abolished, and (2) we
affirm the trial court’s grant of summary disposition in favor of
defendants on the wrongful birth claim because the wrongful birth
claim is barred by the statute of limitations. See Woods v
Interstate Realty Co, 337 US 535, 537; 69 S Ct 1235; 93 L Ed 1524
(1949) (“where a decision rests on two or more grounds, none can
be relegated to the category of obiter dictum”); see also Vaught
v Showa Denko K.K., 107 F3d 1137, 1144 (CA 5, 1997). We note, in
light of our colleague’s concern about wasting judicial time and
resources, that our decision to resolve this case with two
alternative holdings may serve the goal of judicial economy. In
the event that the Michigan Supreme Court should decide to review
this case and decides that we erred with regard to one of our two
central holdings, the Court will have the benefit of our analysis
with regard to the other holding, thereby conserving judicial
resources in that forum.
We acknowledge that the parties did not directly raise the
issue of whether the tort of wrongful birth should continue to be
recognized in Michigan. However, “this Court may go beyond the
issues raised on appeal and address issues that, in this Court’s
opinion, justice requires be considered and resolved.” Frericks
v Highland Twp, 228 Mich App 575, 586; 579 NW2d 441 (1998). When
a claim in a case is premised on an alleged tort, whether the
tort theory underlying that claim should even be recognized as a
matter of law is a basic and controlling issue in the case.
Further, for the reasons we have discussed at length, recognition
of a tort cause of action for wrongful birth is fundamentally
unsound. We conclude that “justice requires,” id., that we take
this opportunity to consider the basic issue of whether Michigan
should recognize a cause of action for “wrongful birth.”
As for the charge of “unnecessary judicial activism,” post
at ___, we welcome our colleague’s apparent acceptance of the
view that such activism is to be avoided and observe that the
creation of the wrongful birth cause of action was, in the first
instance, entirely a judicial act by an intermediate appellate
court. We do not view the abolition of that cause of action,
which has never been recognized by our Legislature or our Supreme
Court, to be an example of judicial activism.
59 The six month period is not at issue here, where Brandy Taylor
admitted that she suspected that the ultrasound was negligently
interpreted as early as the summer of 1994.
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