Chapter 37 WRONGFUL CONCEPTION/BIRTH/LIFE

• Jurisdiction: North Carolina

37 WRONGFUL CONCEPTION/BIRTH/LIFE

A. Definition

In an area of law that might be described as "prenatal torts"¹ are found actions for wrongful life, wrongful birth and wrongful conception.

Wrongful life is a claim for relief by or on behalf of a defective child who alleges that, but for the defendant's negligent treatment or advice to the parents, the child would not have been born.² Wrongful birth is an action brought against a physician for failure to inform the parents of the increased possibility of birth defects in the child,³ and, therefore, depriving them of the choice of terminating the pregnancy by abortion and preventing the birth of a defective child.⁴

A claim for wrongful birth is not a new and distinct cause of action, but it falls within the traditional boundaries of negligence.⁵ The North Carolina Supreme Court has refused to recognize claims for either wrongful birth or wrongful life.⁶

Despite the fact that wrongful birth is not a recognized action in North Carolina, can a North Carolina defendant be sued in a state that does recognize the action? A Maryland federal court faced that question when a Maryland couple sued for wrongful birth, an action that Maryland recognizes. The defendant was a laboratory that negligently performed tests in North Carolina. The federal court certified questions to Maryland's highest court, one of which was whether denying Maryland residents the right to bring a wrongful birth action by applying North Carolina law violated the public policy of Maryland. The state court answered "yes."⁷

Wrongful conception is an action brought by parents either against a physician for negligently performing an abortion⁸ or sterilization procedure⁹ or a pharmaceutical manufacturer for negligently filling a contraceptive prescription.¹⁰

A conceptually related tort is "wrongful pregnancy." One North Carolina journal article distinguishes between the two torts.¹¹ It notes that cases involving negligent performance of bilateral tubal ligation, laparosalpingectomy, or some other sterilization procedure performed on the female, negligently performed vasectomies, or improper filling of birth control prescriptions are all properly labeled "wrongful conception" since the alleged negligence occurred during the preconception phase.¹² However, where a child is born as a result of an unsuccessful abortion or failure to diagnose pregnancy in time for abortion, the alleged negligent act or omission took place after pregnancy, and the claim is more accurately described as "wrongful pregnancy."¹³

Wrongful conception was first recognized by the Court of Appeals in a 1986 case,¹⁴ and then more definitively accepted by the Supreme Court in Jackson v. Bumgardner,¹⁵ where the court considered whether a complaint stated a claim in North Carolina for medical malpractice and breach of contract where the injury complained of was the defendant's improper failure to replace an intrauterine device, resulting in pregnancy and the consequent birth of a healthy child. The court held the complaint stated a claim for medical malpractice.¹⁶

Note that under the Rules of Civil Procedure, a complaint alleging medical malpractice by a health care provider¹⁷ for failure to comply with the applicable statutory standard of care¹⁸ must be dismissed unless:

(a) The pleading specifically states the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person who is reasonably expected to qualify as an expert witness under the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care;
(b) The pleading specifically states the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person that the complainant will seek to have qualified as an expert witness by motion under the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care, and the motion is filed with the complaint; or
(c) The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.¹⁹

B. Elements

Wrongful conception is generally viewed as a subset of medical malpractice.²⁰ The North Carolina Supreme Court has adopted that position, and indeed, treated the action as indistinguishable from malpractice.²¹ To state a claim for malpractice, the plaintiff must establish:

(1) A duty,
(2) Breach of that duty, and
(3) Damages or injuries proximately resulting from the breach.²²

C. Elements Defined

1. A Duty

In general:

A physician or surgeon who undertakes to render professional services must meet these requirements: (1) He must possess the degree of professional learning, skill and ability which others similarly situated ordinarily possess; (2) He must exercise reasonable care and diligence in the application of his knowledge and skill to the patient's case; and (3) He must use his best judgment in the treatment and care of his patient. [citations omitted] If the physician or surgeon lives up to the foregoing requirements he is not civilly liable for the consequences. If he fails in any one particular requirement, and such failure is the proximate cause of injury and damage, he is liable.²³

This statement of the duty of physicians has been modified by a statute that provides:

In any action for damages for personal injury or death arising out of the furnishing or the failure to furnish professional services in the performance of medical, dental, or other health care, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.²⁴

In the seminal case of Jackson v. Bumgardner,²⁵ the court established the standard of care specific to wrongful conception. It said that when a physician undertakes to provide medical care or advice to a patient who desires, for whatever reason, to avoid pregnancy, he or she must provide the professional services, just as in any other instance, according to the established professional standards.²⁶ In Jackson, the complaint alleged the plaintiff consulted the defendant for medical treatment for uterine bleeding. The defendant performed two separate operations and promised that the patient's intrauterine device would be replaced if it became necessary to remove it during the operations. Those facts were sufficient to establish that the plaintiff was the defendant's patient, and he, therefore, owed her a legal duty.²⁷

2. Breach of Duty

The complaint in Jackson sufficiently stated a breach of duty where it alleged the defendant completely failed to replace an IUD after surgery and to warn the plaintiff of the omission, even though he knew she relied on it for prevention of pregnancy, had other children, did not want to become pregnant, and would suffer economic hardship if she did become pregnant.²⁸ In Pierce v. Piver,²⁹ a terse opinion recited allegations that the plaintiff engaged defendant to remove an ovarian tumor and perform bilateral tubal ligation, that the operations were performed in November, 1976, and on December 28, 1977, she gave birth. These allegations and a brief statement of damages, said the court, laconically and without mentioning wrongful conception directly, adequately stated a claim for relief.

McAllister v. Ha³⁰ presents a different scenario. There, the defendant was allegedly negligent for failing to report the results of blood tests he performed for sickle cell disease. As a result, the plaintiff contended she never received any genetic counseling to prepare for being the parent of a child with sickle cell disease and was unable to make an informed choice regarding whether to conceive another child.³¹ The plaintiff became pregnant, apparently intentionally — but, in any event, not because of the negligence of the defendant — and gave birth to a child afflicted with the disease. A journal article characterizes the holding that a cause of action was stated as "surprising because, generally, wrongful conception claims stem from unintentional pregnancies that result from negligently performed sterilization or contraceptive procedures."³² Nonetheless, since the claim alleged the element of preconception negligence, the article notes the court found the case analogous to prior ones involving wrongful conception.

The plaintiff in Gallagher v. Duke University³³ consulted a physician to determine whether she should attempt to have a second child after a first child was born with severe defects. The evidence disclosed, said the court, that the physician deviated from an acceptable standard of care in analyzing the cause of the defects to the first child, and that relying on that faulty analysis, the defendant misinformed the plaintiff that she could have a normal child. She became pregnant and gave birth to a "profoundly defective child." Tested by Jackson, argued the court, the plaintiff proved a cause of action for medical malpractice based on wrongful conception as recognized in North Carolina.

3. Damages or Injuries Proximately Resulting from the Breach

It would seem from Jackson v. Bumgardner³⁴ that pregnancy alone may constitute an injury sufficient to meet the third element.³⁵ The court there said that the plaintiff became pregnant, thereby suffering "the very result that she had specifically sought defendant's professional assistance in avoiding." Therefore, the plaintiff alleged sufficient facts to show damages resulting from the breach. In Pierce v. Piver,³⁶ the plaintiff...