[This opinion has been published in Ohio Official Reports at
89 Ohio St.3d 586.]
SIMMERER ET AL., APPELLANTS, v. DABBAS, APPELLEE, ET AL.
[Cite as Simmerer v. Dabbas, 2000-Ohio-232.]
Torts—Negligence—Medical expenses and emotional distress damages
associated with a child’s birth defect are not recoverable in a wrongful
pregnancy action, when.
Medical expenses and emotional distress damages associated with a child’s birth
defect are not recoverable in a wrongful pregnancy action, when the child’s
birth defect was not reasonably foreseeable by the defendant who
negligently performed the sterilization procedure.
(No. 99-1570—Submitted May 10, 2000—Decided September 6, 2000.)
APPEAL from the Court of Appeals for Summit County, No. 18718.
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{¶ 1} Following the birth of their second child, appellants, James and
Theresa Simmerer, decided that Theresa would undergo a permanent sterilization
procedure. Appellee Mohamed Dabbas, M.D.,1 negligently performed the
procedure, however, and Theresa Simmerer gave birth to a third child, Steven.
Steven suffered from a congenital heart defect and died at approximately fifteen
months.
{¶ 2} The Simmerers, on behalf of themselves and Steven, sued Dabbas and
others for medical malpractice. They alleged, inter alia, that Dabbas had
negligently failed to sterilize Theresa. Their damages, they asserted, included their
pregnancy-related costs, Theresa’s pain, suffering, and lost wages during
pregnancy and delivery, Steven’s medical bills, and emotional suffering as a result
of caring for Steven. The Simmerers and Dabbas settled out of court on the issues
1. Dabbas has conceded that he negligently performed the sterilization procedure.
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of the Simmerers’ pregnancy-related damages. Their claims for emotional distress
and for Steven’s medical bills, however, remained pending, and were the subject of
a motion for summary judgment by Dabbas, which the trial court granted.
{¶ 3} The Simmerers appealed the summary judgment decision that
foreclosed the nonpregnancy-related damages. The court of appeals affirmed the
judgment of the trial court, holding that the Simmerers had failed to establish that
Dabbas’s negligence was a proximate cause of the medical expenses and emotional
distress associated with Steven’s heart defect.
{¶ 4} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
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Perantinides & Nolan Co., L.P.A., Paul G. Perantinides and Christopher L.
Parker, for appellants.
Weston Hurd Fallon Paisley & Howley L.L.P., Mark O’Neill and Gary A.
Vick, for appellee.
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COOK, J.
{¶ 5} The question raised by this case is whether damages associated with
parenting a child born with a birth defect are recoverable in a wrongful pregnancy
action stemming from a negligently performed sterilization procedure, when the
doctor who performed the unsuccessful sterilization procedure could not have
reasonably foreseen the birth defect. We hold that they are not.
I. Classification of This Action
{¶ 6} To put this case in context, we first categorize the typical birth-based
medical malpractice actions. In a wrongful pregnancy action, one or both parents
of a child born following a negligently performed sterilization procedure bring suit
for the costs of having an unplanned child. Johnson v. Univ. Hosp. of Cleveland
(1989), 44 Ohio St.3d 49, 51,
540 N.E.2d 1370, 1372. Most United States
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January Term, 2000
jurisdictions recognize this cause of action. Smith-Groff, Wrongful Conception:
When an Unplanned Child Has a Birth Defect, Who Should Pay the Cost? (1996),
61 Mo.L.Rev. 135, 138. In a wrongful birth action, the parents of an unhealthy
child born following negligent genetic counseling or negligent failure to diagnose
a fetal defect or disease bring suit for the costs of having to raise and care for an
impaired child, arguing that they were wrongfully deprived of the ability to avoid
or terminate a pregnancy to prevent the birth of a child with the defect or disease.
Johnson, 44 Ohio St.3d at 51,
540 N.E.2d at 1372. The legitimacy of this cause of
action has not yet been addressed by this court, but has been recognized by Ohio’s
Fourth District Court of Appeals in Flanagan v. Williams (1993),
87 Ohio App.3d
768,
623 N.E.2d 185. Finally, in a wrongful life action, an unhealthy child born
following either a negligently performed sterilization of one of his or her parents 2
or negligent genetic counseling or testing3 argues that he or she has been damaged
by being born at all. This court has rejected this cause of action, 4 as have most
other jurisdictions.5
{¶ 7} The parties here seem to agree in the briefing to this court, and we
concur, that this case is an action sounding in wrongful pregnancy only, based on
the definitions outlined above. The only negligence alleged is that Dabbas failed
to sterilize Theresa though he attempted to perform a sterilization procedure. The
fact that Steven was not born healthy does not convert this action into one for
wrongful birth, as we have defined that (consistent with the weight of authority) as
2. Johnson, supra, 44 Ohio St.3d at 51,
540 N.E.2d at 1372.
3. Garrison v. Foy (Ind.App.1985),
486 N.E.2d 5, 7.
4. See Hester v. Dwivedi (2000),
89 Ohio St.3d 575,
733 N.E.2d 1161 (“Judges and jurors are no
more able to judge the value of a life with disabilities versus nonbeing than they are able to judge
the value of life in a ‘normal’ condition [however that might be defined] versus nonbeing.”).
5. See Strasser, Wrongful Life, Wrongful Birth, Wrongful Death, and the Right to Refuse
Treatment: Can Reasonable Jurisdictions Recognize All But One? (1999), 64 Mo.L.Rev. 29.
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involving negligent genetic counseling or negligent failure to diagnose a fetal
defect.
II. Law and Discussion
{¶ 8} Across the United States, courts have recognized four general theories
of recovery in wrongful pregnancy cases. They are (1) full recovery, which
includes pregnancy-related damages as well as reasonable child-rearing costs, (2)
limited damages, in which only damages related to the failed sterilization,
pregnancy, and birth are recoverable, (3) the benefits rule, which allows full
recovery offset by the benefits to the parent(s) of having and raising the child, and
(4) no recovery. Johnson, supra,44 Ohio St.3d at 52-57,
540 N.E.2d at 1372-1377;
Simmons, Zehr v. Haugen and the Oregon Approach to Wrongful Conception: An
Occasion for Celebration or Litigation? (1995), 31 Willamette L.Rev. 121, 127-
135.
{¶ 9} In Johnson, where we considered the birth of a healthy child following
a negligent sterilization, this court adopted a limited-damages rule for wrongful
pregnancy actions in Ohio. Johnson, supra, at paragraph two of the syllabus. We
held that the plaintiffs could recover the medical costs of the pregnancy and
delivery, damages for emotional distress due to pregnancy, lost wages due to
pregnancy, damages for the husband’s loss of consortium during pregnancy, and
damages for the mother’s pain and suffering during pregnancy and delivery.
Id. at
58-59,
540 N.E.2d at 1378, fn. 8. Our decision foreclosed recovery of the costs of
raising the child, however, given “Ohio’s public policy that the birth of a normal,
healthy child cannot be an injury to her parents.”
Id. at paragraph two of the
syllabus.
{¶ 10} The Simmerers invite this court to expand the damages recoverable
in a wrongful pregnancy action when the resulting child is born with birth defects,
as Steven was. They argue that, even if, under Johnson, normal child-rearing costs
are not recoverable, they are entitled to recover the extraordinary costs and damages
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associated with Steven’s heart defect. Dabbas, on the other hand, argues that this
court should follow the reasoning in Simmons v. Hertzman (1994), 99 Ohio
App.3d 453,
651 N.E.2d 13, in which the First District Court of Appeals held that
the plaintiffs, who had given birth to a child with severe abnormalities, could not
recover the extraordinary costs associated with raising that child because (1) child-rearing costs are not recoverable regardless of whether a child is “healthy” or
“abnormal,” because everyone has some kind of abnormality and, hence, the
distinction is too difficult to draw, and (2) the negligent sterilization did not
proximately cause the child’s abnormalities.
Id. at 458-459,
651 N.E.2d at 17.
{¶ 11} The majority rule favors Dabbas’s position. It is axiomatic that a
medical negligence claim requires a showing of duty, breach of that duty, and
damages proximately caused by the breach. See Hester v. Dwivedi (2000), 89 Ohio
St.3d 575, 578,
733 N.E.2d 1161, 1164. Courts deciding cases like this one have
generally held that, although a negligently performed sterilization is a proximate
cause of a subsequent birth, it is not a proximate cause of the birth defect and,
therefore, the negligent doctor cannot be held liable for the costs associated with
that defect. See, e.g., Williams v. Univ. of Chicago Hosps. (1997),
179 Ill.2d 80,
227 Ill.Dec. 793,
688 N.E.2d 130; Williams v. Van Biber (Mo.App.1994),
886
S.W.2d 10; Pitre v. Opelousas Gen. Hosp. (La.1988),
530 So.2d 1151, 1158;
Garrison v. Foy (Ind.App.1985),
486 N.E.2d 5, 10; LaPoint v. Shirley
(W.D.Tex.1976),
409 F.Supp. 118.6
{¶ 12} The Supreme Court of Illinois decided a case in 1997 that is directly
on point. That court, in a well-reasoned opinion, held that the parents of a child
born with attention deficit hyperactivity disorder could not recover for the
extraordinary expenses of raising a child with that affliction because any negligence
6. But, see, Fassoulas v. Ramey (Fla.1984), 450 So.2d 822 (extraordinary expenses of raising
deformed child recoverable in wrongful pregnancy action); Emerson v. Magendantz (R.I.1997),
689 A.2d 409, 414 (approving the reasoning in Fassoulas).
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in the performance of the failed sterilization procedure was not a proximate cause
of the disorder. See Williams v. Univ. of Chicago Hosps., supra, 179 Ill.2d 80,
227
Ill.Dec. 793,
688 N.E.2d 130. That court noted that the case before it did not
involve an allegation that the defendants “knew that [the mother] sought
sterilization as a means of avoiding the conception of a child with the particular
defect involved here,” and left for another day the question of whether, given such
knowledge by the defendants, the parents would be able to recover the expenses
they sought. Id. at 87,
227 Ill.Dec. at 797,
688 N.E.2d at 134. The Williams court
then concluded that “proximate cause [cannot] be established in the absence of
allegations forging a closer link between the defendant’s negligence and the
eventual birth of the defective child.”
Id. The court went on to discuss the concept
of proximate cause and its application to the case before it:
“In Neering v. Illinois Central R.R. Co., 383 Ill. 366, 380,
50 N.E.2d 497
(1943), this court stated:
“ ‘What constitutes proximate cause has been defined in numerous
decisions, and there is practically no difference of opinion as to what the rule is.
The injury must be the natural and probable result of the negligent act or omission
and be of such a character as an ordinarily prudent person ought to have foreseen
as likely to occur as a result of the negligence, although it is not essential that the
person charged with negligence should have foreseen the precise injury which
resulted from his act. [Citations.]’
“Thus, ‘[i]f the result is one that an ordinarily prudent person would have
foreseen as likely to occur, then the party will be held responsible, even if the
precise injury which resulted is not foreseen.’ Scott & Fetzer Co. v. Montgomery
Ward & Co., 112 Ill.2d 378, 393,
98 Ill.Dec. 1,
493 N.E.2d 1022 (1986).
“We do not believe that the plaintiffs can establish that the defendant’s
conduct was a proximate cause of their injury, for under the allegations in this case
the plaintiffs’ injury cannot be said to be of such a character that an ordinarily
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January Term, 2000
prudent person should have foreseen it as a likely consequence of the alleged
negligence. The plaintiffs do not allege that any act or omission by the defendants
caused the child’s condition, that the defendants knew of the possibility that a
child conceived in the wake of a failed operation would suffer from a particular
defect, or even that the parents were seeking to avoid a specific risk and that the
defendants were aware of that, assuming that allegations of that nature would be a
sufficient basis for liability.” Williams v. Univ. of Chicago Hosps., 179 Ill.2d at 87-
88,
227 Ill.Dec. at 797,
688 N.E.2d at 134.
{¶ 13} We find the reasoning in Williams persuasive, and, accordingly,
reject the Simmerers’ assertion that Steven’s heart condition was a reasonably
foreseeable result of Dabbas’s negligence. Even accepting as true their statement
that a negligently performed sterilization may lead to the conception and birth of an
unhealthy child, it would not establish proximate cause, as “proximate cause”
contemplates a “probable” or “likely” result, not merely a “possible” one.
Furthermore, the Simmerers’ “but for” argument—that Steven’s heart defect would
not have existed but for Dabbas’s negligence—is insufficient to establish proximate
cause. A “but for” test is, at most, “ ‘a rule of exclusion: if the event would not
have occurred “but for” the defendant’s negligence, it still does not follow that there
is liability, since other considerations remain to be discussed and may prevent
liability. It should be quite obvious that, once events are set in motion, there is, in
terms of causation alone, no place to stop.’ ” Anderson v. St. Francis-St. George
Hosp., Inc. (1996), 77 Ohio St.3d 82, 86,
671 N.E.2d 225, 228, citing Prosser &
Keeton, Law of Torts (5 Ed.1984) 266. See, also, Hester,
89 Ohio St.3d at 580-
581,
733 N.E.2d at 1165.
{¶ 14} According to the Simmerers, this court has already spoken on the
issue of recovery of extraordinary expenses associated with a birth defect in a
wrongful pregnancy case when it decided Bowman v. Davis (1976), 48 Ohio St.2d
41,
2 O.O.3d 133,
356 N.E.2d 496. But the Simmerers have misunderstood that
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case. In Bowman, the parents of twins born after a negligently performed
sterilization procedure sued for pregnancy-related damages, damages to the family
“due to ‘the change in the family status,’ ” child-rearing costs of raising the twins,
and the extraordinary costs of raising one of the twins, who was born with major
birth defects. Id. at 42,
2 O.O.3d at 134,
356 N.E.2d at 497. The jury awarded a
general verdict of $450,000, untested by interrogatories, and the issue on appeal
was whether an action in wrongful pregnancy in general was barred on public
policy grounds—not whether the kinds of damages sought were recoverable. This
court’s affirmance of the verdict, therefore, was not an approval of extraordinary
costs. Furthermore, the general nature of the verdict renders it unclear whether any
part of the damage award was for extraordinary costs. The Simmerers’ argument,
therefore, that Bowman constitutes a previous statement by this court that postpregnancy extraordinary costs associated with birth defects are recoverable in a
wrongful pregnancy action is without merit. See, also,
Hester, supra,89 Ohio St.3d
at 579,
733 N.E.2d at 1164 (“Our holding [in Bowman] was confined to a
determination that public policy did not preclude parents from bringing an action
in tort against medical providers following a negligently performed and
unsuccessful sterilization procedure.”).
{¶ 15} The Simmerers also point to Flanagan, 87 Ohio App.3d 768,
623
N.E.2d 185, to support their position. In that case, the Fourth District Court of
Appeals, in addition to recognizing wrongful birth as a legitimate cause of action
in Ohio and rejecting wrongful life, concluded that, based on this court’s statement
in Johnson that child-rearing costs for a “normal, healthy” child are not recoverable
in a wrongful pregnancy action, extraordinary costs associated with birth defects
would be recoverable in such an action.
Id. at 773,
623 N.E.2d at 188. Based on
our analysis of this case, however, we conclude that the Fourth District’s
interpretation of Johnson was incorrect.
III. Conclusion
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{¶ 16} For the above reasons, we hold that medical expenses and
emotional distress damages associated with a child’s birth defect are not
recoverable in a wrongful pregnancy action, when the child’s birth defect was not
reasonably foreseeable by the defendant who negligently performed the
sterilization procedure.
Judgment affirmed.
MOYER, C.J., and LUNDBERG STRATTON, J., concur.
PFEIFER, J., concurs in syllabus and judgment only.
DOUGLAS, RESNICK and F.E. SWEENEY, JJ., dissent.
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PFEIFER, J., concurring in syllabus and judgment only.
{¶ 17} I concur to make clear that the causal chain was too extended in this
case for the negligent doctor to be liable for damages related to Steven Simmerer’s
heart defect. However, if the Simmerers had sought a permanent sterilization in
order to prevent the birth of a child who might be especially at risk for birth defects,
I would hold differently. In that instance, I believe there would be enough of a
direct link to the child’s condition that the doctor who negligently performed the
sterilization procedure could be held liable.
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ALICE ROBIE RESNICK, J., dissenting.
{¶ 18} I would reverse the judgment of the court of appeals and remand this
cause to the trial court. I believe that, under the standards of Civ.R. 56(C),
appellants have succeeded in raising a jury question on their claim for medical
damages. This case is distinguishable from Johnson v. Univ. Hosp. of Cleveland
(1989), 44 Ohio St.3d 49,
540 N.E.2d 1370, in that this case does not involve a
“normal, healthy child.” See
id. at paragraph two of the syllabus.
DOUGLAS and F.E. SWEENEY, JJ., concur in the foregoing dissenting
opinion.
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