Nell v. Froedtert & Community Health, West Bend Clinic, Inc.
Nell v. Froedtert & Community Health, West Bend Clinic, Inc.
Opinion of the Court
¶ 1. Here, we affirm the circuit court's conclusion that public policy precludes recovery of the costs of raising a healthy child as damages for the negligent provision of prenatal vitamins when birth control pills were prescribed. The circuit court granted summary judgment to Froedtert & Community Health, West Bend Clinic, Inc. on Shelby Nell and Austin Omernick's (collectively Nell) complaint against the Clinic, concluding that Nell's suit was barred on public policy grounds. We affirm in part, reverse in part, and remand for further proceedings regarding the mother's claimed personal injury damages allegedly related to the Clinic's negligence because these claims are not sufficiently developed for a public policy determination.
BACKGROUND
¶ 2. This case is about Shelby Nell's pregnancy with and the birth of her second son. Nell had her first son when she was nineteen years old and her second when she was twenty-one. After the birth of her first son, Nell was prescribed birth control pills by the Clinic. Nell received several refills on her prescription for birth control pills, including one on February 11 or 12, 2009. Nell was familiar with what birth control pills looked like; she had started taking birth control pills when she was fifteen or sixteen. The birth control pills were always small and came in containers that showed daily usage. When she picked up her prescription in February 2009, Nell noticed that the pills were different than the birth control pills she was used to getting. There were no usual birth control pill containers in the bag from the pharmacy. Nell was confused, but "too embarrassed" to call the Clinic.
¶ 4. Nell sued the Clinic, alleging that the Clinic's negligence in giving her the wrong pills caused her to become pregnant and deliver her son. Nell claimed as a result of this negligence she suffered damages including pain and suffering during and after her pregnancy, loss of future earning capacity and the cost of raising her child to age eighteen. The Clinic moved for summary judgment, assuming for the purpose of its motion that Nell could prove causal negligence and arguing that public policy barred liability. The circuit court agreed and granted the Clinic summary judgment.
DISCUSSION
Standard of Review
¶ 5. We review de novo the circuit court's decision on summary judgment, employing the same methodology as the circuit court. Flint v. O'Connell, 2002 WI App 112, ¶ 10, 254 Wis. 2d 772, 648 N.W.2d 7. We first review the complaint to see if it states a claim, then review the answer to see if issue was joined. Id. If so, we
Viability of Claim for Damages for Cost of Raising a Healthy Child
¶ 6. Three Wisconsin cases have addressed the viability of a claim for the cost of raising a healthy child as damages when a medical provider's negligence causes an allegedly unwanted pregnancy. Rieck v. Medical Protective Co., 64 Wis. 2d 514, 219 N.W.2d 242 (1974), precluded recovery for the cost of raising a healthy child where the defendant doctor failed to diagnose a pregnancy until it was allegedly too late for the mother to abort. Marciniak v. Lundborg, 153 Wis. 2d 59, 450 N.W.2d 243 (1990), declined to apply Rieck's preclusion in a case where the mother had become pregnant after undergoing surgical sterilization. Finally, Flint, 254 Wis. 2d 772, followed Rieck, denying recovery in another failure to diagnose pregnancy case, even when the mother's pre-existing lupus caused serious complications. We discuss each case in turn.
¶ 7. In Rieck, the parents claimed that their fourth child was the result of an unwanted pregnancy that was diagnosed too late for medical termination.
(1) The injury is too remote from the negligence; or (2) the injury is too wholly out of proportion to the culpability of the negligent tort-feasor; or (3) in retrospect it appears too highly extraordinary that the negligence should have brought about the harm; or (4) because allowance of recovery would place too unreasonable a burden (in the case before us, upon physicians and obstetricians); or (5) because allowance of recovery would be too likely to open the way for fraudulent claims; or (6) allowance of recovery would enter a field that has no sensible or just stopping point.
Id. at 517-18. Determination of whether these factors preclude recovery is made on a case-by-case basis, as the facts of a case are often relevant to the analysis. Flint, 254 Wis. 2d 772, ¶ 13.
¶ 8. The Rieck court first reasoned that shifting the costs of raising the child to the doctor while allowing the parents to retain all the benefits of the child's love and affection would create a new category of surrogate parent and that the burden of liability would be wholly out of proportion to the doctor's culpability. Rieck, 64 Wis. 2d at 518-19. The court next concluded that allowing this claim would open the door to fraudulent claims and "enter a field that has no sensible or just stopping point," as parents could "invent an intent to prevent pregnancy." Id. at 519. In sum, the court concluded "it would contravene sound public policy to
¶ 9. The defendants in Marciniak argued that Rieck applied to preclude recovery of the costs of raising a child as damages caused by a negligently performed surgical sterilization. Marciniak, 153 Wis. 2d at 69. The supreme court distinguished Rieck on public policy grounds, allowing recovery. Key to the court's decision was the difference between a woman claiming the intent to terminate an existing pregnancy {Rieck) and the desire to avoid pregnancy in the first place {Marciniak). Marciniak, 153 Wis. 2d at 70. Additionally, the court found the difference in the doctors' levels of culpability significant. Id. In Rieck, the doctor failed to diagnose a seven-week pregnancy; there was no allegation that the plaintiffs ever told the doctor that the purpose of the examination was to have an abortion if pregnant. Marciniak, 153 Wis. 2d at 70. In Marciniak, the express purpose of treatment was to permanently avoid pregnancy. Id. Regarding a concern for fraudulent claims, the court noted that Marciniak's "seeking and subsequently being the subject of surgery eliminates that concern." Id. at 68. The court rejected the defendants' other public policy arguments, concluding that the damages were not too speculative, were not out of proportion to culpability, would not create a surrogate parent in the doctor, did not enter a field with no sensible stopping point, would not psychologically harm the child and would not debase the sanctity of life. Id. at 66-68.
¶ 10. In Flint, the court of appeals applied Rieck in a failure-to-diagnose case where the mother's lupus caused significant complications during and after the pregnancy. A few years prior to the pregnancy at issue in the case, Flint had terminated what she thought was
¶ 11. Nearly three years later, Flint called her doctor with nausea, abdominal pain and vaginal bleeding. Id., ¶ 4. The doctor examined Flint, but did not diagnose her then-ongoing pregnancy. Id. Flint's pregnancy was not diagnosed until months later, well into the second trimester. Id., ¶ 5. During her pregnancy, Flint discontinued use of her lupus medication. Id., ¶ 6. She gave birth to a healthy baby, but she herself suffered renal failure after the birth and had to have a kidney transplant. Id., ¶¶ 5-6. Flint contended that her kidney failure was due to the pregnancy, which she claimed she learned of when it was too late to abort. Id., ¶ 6.
¶ 12. Flint alleged negligence in failing to diagnose the pregnancy. Id., ¶ 7. Flint argued that her high-risk pregnancy, her previous abortion and her previous consultation about contraceptives all ensured the trustworthiness of her stated intention to terminate the pregnancy. Id., ¶ 17. These facts, she argued, made her case more like Marciniak, where the court had relied on the plaintiffs surgical sterilization to show credibility of the desire to avoid pregnancy. See Flint, 254 Wis. 2d 772, ¶¶ 17-18.
¶ 13. Regarding Flint's claimed damages for the cost of raising her child (as opposed to her damages for her own deterioration in health), the court determined that the same facts that drove the public policy determination in Rieck were present. The cases were parallel in that (1) both were about an untimely diagnosis of an existing pregnancy, (2) both dealt with the claimed
¶ 14. Significantly, the Flint court also noted that the costs of raising a healthy child would not be available for a negligence claim based on the doctor's failure to inform Flint of the possibility of becoming pregnant. Id., ¶ 9 n.2. Flint had pursued such a claim before the circuit court. Id., ¶¶ 8-9. However, the parties stipulated to defer consideration of this claim on appeal, with the understanding that it would rise or fall based on the outcome of the failure to diagnose claim.
Recoverability of the Cost of Raising Nell's Child
¶ 15. Under the facts of this case, the analysis set forth by the supreme court in Marciniak precludes Nell's recovery. We base our decision on the fifth public policy factor: "allowance of recovery would be too likely to open the way for fraudulent claims." Marciniak, 153 Wis. 2d at 65 (quoting Rieck, 64 Wis. 2d at 517). The crucial distinction between Marciniak and Rieck and Flint was Marciniak's permanent sterilization surgery. While Nell sought to avoid pregnancy, like Marciniak, she did so only on a temporary basis. Nell does not claim that she never wanted to have another baby; she took no steps to permanently prevent pregnancy. As in Rieck and Flint, her case is not about an "interest in permanently avoiding conception." Flint, 254 Wis. 2d 772, ¶ 22. So the question becomes whether we recognize these damages when she claims an interest in temporarily avoiding conception.
¶ 16. A comparison with Flint is instructive. Flint presented compelling facts to demonstrate her legitimate desire not to become pregnant — her own lupus-impaired health, her previous abortion, her apparent belief that she could not become pregnant based on the diagnosis of ovarian failure. Yet despite these facts lending trustworthiness to Flint's claim that she wanted to avoid pregnancy, we followed Rieck and denied recovery. Flint, 254 Wis. 2d 772, ¶ 22. Even with the health problems
¶ 17. Nell claims that her use of birth control pills manifests that same desire to prevent pregnancy evident in Marciniak, even if she only sought to temporarily avoid pregnancy. But if the circumstances in Flint did not provide a sufficient guarantee of trustworthiness, Nell's claim does not either. Nell was young and, as far as we know, healthy when she became pregnant and delivered her healthy baby. Nell's case presents the same opportunities for fraud as in Rieck and Flint. Claims of inadequate directions, wrong pills or any ineffectiveness of the chosen contraceptive method provide too many avenues for a parent to invent an intent to prevent pregnancy or deny "any possibility of change of mind or attitude." Rieck, 64 Wis. 2d at 519. Just as with the alleged failure to inform about the possibility of pregnancy, a patient who gets the wrong pills could change her mind at any time. As the Flint court concluded, whether the alleged intent to avoid the pregnancy is prior to conception or during an ongoing pregnancy, the public policy concern with fraud, given the potential size of the damage award, is the same.
Nell's Claimed Damages Other than the Cost of Raising Her Child
¶ 18. In addition to the costs of raising her child, Nell claims damages for pain and suffering, loss of future earning capacity, and postpartum depression. Nell's only argument as to why these damages are recoverable is that they are "directly related to the negligence of the [C]linic in providing the wrong prescribed medication to the plaintiff, just as any other damages caused by the negligent act of a tortfeasor." The Clinic responds that these damages fail on every one of the six public policy grounds, in particular the concern for fraudulent claims and the lack of any sensible or just stopping point.
¶ 19. In Flint, the court remanded for a full public policy analysis of Flint's personal injury damages "relat
¶ 20. Like Flint, Nell claims damages for both the cost of raising her healthy child and for her own personal injuries she claims resulted from the Clinic's negligence. As discussed above, the costs of raising
CONCLUSION
¶ 21. Here, Nell seeks damages for the cost of raising her child from a pregnancy caused by the negligent provision of prenatal vitamins when birth control pills were prescribed and damages allegedly resulting from the pregnancy. This is not a permanent sterilization case, and the costs of raising the child are therefore barred by public policy. We remand for further proceedings regarding Nell's own personal injuries.
By the Court. — Judgment affirmed in part; reversed in part and cause remanded with directions.
All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
The parties did not bring to our attention any case holding that a parent can recover as damages the costs of raising a healthy child born after a medical provider has negligently failed to provide prescribed birth control pills. Our independent research has not found any good law so holding. 70 C.J.S. Physicians and Surgeons § 161 (2012) states: "Damages recoverable in wrongful conception or wrongful pregnancy cases are generally limited to those caused by the negligently unsuccessful sterilization procedure and the resultant pregnancy." The only case we found to the contrary has been overruled. See Troppi v. Scarf, 187 N.W.2d 511 (Mich. App. 1971), declined to follow by Rouse v. Wesley, 494 N.W.2d 7, 10-11 (Mich. App. 1992), overruling recognized by Taylor v. Kurapati, 600 N.W.2d 670, 681 & n.34; (Mich. App. 1999); see also Mich. Comp. Laws Ann. § 600.2971 (West 2012) (limiting actions for wrongful birth to those for intentional or grossly negligent acts or omissions).
Reference
- Full Case Name
- Shelby R. Nell and Austin R. Omernick v. Froedtert & Community Health, West Bend Clinic, Inc., Defendant-Respondent, Forward Health, Wisconsin Department of Health Services, Subrogated
- Cited By
- 1 case
- Status
- Published