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01/29/93 ANNE CAUMAN v. GEORGE WASHINGTON

January 29, 1993

ANNE CAUMAN, ET AL, APPELLANTS
v.
GEORGE WASHINGTON UNIVERSITY, ET AL, APPELLEES



Appeal from the Superior Court of the District of Columbia; (Hon. Emmet G. Sullivan, Trial Judge)

Before Ferren, Terry, and Steadman, Associate Judges. Opinion for the court by Associate Judge Terry. Concurring opinion by Associate Judge Ferren.

The opinion of the court was delivered by: Terry

4902*1104TERRY, Associate Judge : Appellants, husband and wife, filed this action seeking damages for emotional injuries caused by the alleged negligence of appellees' employees which ultimately resulted in the "wrongful birth" of a disabled child. The trial court dismissed the case under Super. Ct. Civ. R. 12 (b)(6) for failure to state a claim upon which relief could be granted. Our decisions have left open the question of whether such a claim may be asserted under District of Columbia law. We answer that question today in the negative and affirm the order of dismissal.

I

Appellant Anne Cauman and her husband consulted with Dr. John Larsen, Jr., a specialist in genetic counseling at George Washington University Hospital, regarding Ms. Cauman's pregnancy. Because she was then in her late thirties, Ms. Cauman and her husband were fearful that their child might be born with some defect or impairment. They told Dr. Larsen that the fetus would be aborted in the event that he detected any genetic abnormalities. After performing an amniocentesis on Ms. Cauman and analyzing specimen chromosomes from both parents, Dr. Larsen advised them that these tests revealed no abnormalities.

The couple then sought a second opinion from Dr. Kenneth Rosenbaum, a genetics specialist at Children's Hospital. As they had done with Dr. Larsen, they informed Dr. Rosenbaum that the fetus would be aborted if he discovered any genetic abnormalities. Dr. Rosenbaum reviewed the data collected by Dr. Larsen and advised them that he concurred in Dr. Larsen's opinion.

Thus assured by both doctors, Ms. Cauman elected to continue her pregnancy and not to seek an abortion. The pregnancy appears to have been uneventful. Regrettably, however, the son that was born to Ms. Cauman a few months later was afflicted with severe mental and physical disabilities. Postnatal testing revealed that these disabilities were due to a chromosomal defect. After appellants concluded that they were incapable of providing for their son's special needs, he was adopted by another couple at the age of ten months and now resides in another state. The child is not a party to this litigation.

Appellants sued the hospitals and the physicians *fn1 for damages for the emotional injuries they suffered as a result of the birth of their disabled son. *fn2 They alleged that these injuries stemmed from appellees' negligence in failing to discover the genetic abnormalities in the fetus because they would have sought an abortion if the doctors had informed them of their son's disabilities. The trial court dismissed appellants' complaint under Rule 12 (b)(6) for failure to state a claim upon which relief could be granted.

II

"Dismissal under Rule 12 (b)(6) is warranted only when 'it appears beyond doubt that the plaintiff can prove no set of facts in support of claim which would entitle to relief.'" Klahr v. District of Columbia, 576 A.2d 718, 721 (D.C. 1990), quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In reviewing the decision of the trial court, we must construe appellants' complaint in the light most favorable to their claim and must accept their allegations as true. Haymon v. Wilkerson, 535 A.2d 880, 882 (D.C. 1987); McBryde v. Amoco Oil Co., 404 A.2d 200, 202 (D.C. 1979). We conclude that, even under this generous standard, the dismissal of appellants' claim was proper because District of Columbia law does not provide any basis to hold appellees liable for appellants' emotional injuries.

The District of Columbia recognizes the tort of "wrongful birth." Haymon, supra, 535 A.2d at 886. *fn3 In Haymon we held that a parent may recover "extraordinary medical and other expenses attributable to the care of child" in a wrongful birth action. Id. Nothing was said, however, about damages for emotional injuries suffered by the parents; indeed, Haymon explicitly left undecided the issue of whether such damages are recoverable. See id. at 886 n.5. That is the question facing us here.

We find guidance in answering that question in our decision in Williams v. Baker, 572 A.2d 1062 (D.C. 1990) (en banc). In Williams we held that damages for negligent infliction of emotional distress, previously not available in the District of Columbia without some accompanying physical injury, could be recovered absent physical injury in certain limited circumstances:

If the plaintiff was in the zone of physical danger and was caused by defendant's negligence to fear for his or her own safety, the plaintiff may recover for negligent infliction of serious emotional distress and any resultant physical injury, regardless of whether plaintiff experienced a direct physical impact as a direct result of defendant's negligence.

572 A.2d 1062 at 1067 (emphasis added). Stated slightly differently, the plaintiff must be "physically endangered as a result of the defendant's alleged negligence" in order to recover. 572 A.2d 1062at 1073. In addition, the emotional distress for which damages are sought "must be 'serious' and 'verifiable.'" 572 A.2d 1062at 1068 (citation omitted); see also Jones ...


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