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M.A. v. U.S. (1/2/98), 951 P 2d 851
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
M.A., individually and as )
parent and next friend to J.A.,)
and N.A., as parent and next )
friend to J.A., a minor child, )
) Supreme Court No. S-7593
) United States District Court No.
v. ) A93-424 CI (JWS)
United States of America, ) O P I N I O N
Defendant. ) [No. 4929 - January 2, 1998]
Certified Question from the United States
District Court for the District of Alaska, John W. Sedwick, Judge.
Appearances: Keenan Powell, Powell & Slaten,
LLC, Anchorage, for Plaintiff. Richard L. Pomeroy, Assistant
United States Attorney, and Robert C. Bundy, United States
Attorney, Anchorage, for Defendant.
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
We accepted certification in this case to decide whether
a cause of action exists under Alaska law for a physician's
negligent failure to diagnose a pregnancy and, if so, the scope of
recovery allowed under that cause of action. We conclude that
negligent failure to diagnose a pregnancy gives rise to a cause of
action for medical malpractice and is compensable to the extent
that damages are ordinarily allowable in medical malpractice cases,
but that no recovery may be awarded for expenses of rearing a
healthy child born as a result of the misdiagnosis.
II. FACTS AND PROCEEDINGS
M.A. and N.A., acting on behalf of their minor daughter,
J.A., filed a suit in federal court against the United States of
America (the United States) for injuries stemming from the
allegedly negligent failure of an Alaska Native Medical Center
physician to diagnose J.A. as being pregnant. M.A. and N.A.
contend that the negligence delayed J.A.'s awareness of her
condition and precluded her from safely aborting her child, thus
resulting in the birth of a healthy child. M.A. separately seeks
damages in her own right for negligent infliction of emotional
Upon the filing of cross motions for summary judgment,
the United States District Court for the District of Alaska
certified the following questions:
1. Does negligent failure to diagnose a
pregnancy which results in the birth of a
healthy child give rise to a cause of action
for medical malpractice?
2. In a cause of action for negligent
failure to diagnose pregnancy, what damages
are recoverable for the birth of a healthy
3. Specifically, would recoverable damages
include past medical expenses, pain and
suffering of the mother, and the cost of
raising the child?
4. Would any recoverable damages be offset
by the benefits the parent derives from the
5. If the mother is precluded from bringing
a claim for negligent failure to diagnose
pregnancy, may a close relative bring a claim
for negligent infliction of emotional
We accepted certification pursuant to Alaska Appellate Rule 407
[Fn. 1] and now address these questions.
A. Standard of Review
A decision by this court upon certification from another
court involves determinative questions of Alaska law as to which
there is no controlling precedent. Appellate Rule 407(a). Because
we address questions of law and essentially stand in the shoes of
the certifying court, we must exercise our independent judgment and
select "the rule of law that is most persuasive in light of
precedent, reason, and policy." Guin v. Ha, 591 P.2d 1281, 1284
n.6 (Alaska 1979). For purposes of resolving the certified
questions, we assume that J.A.'s treating physician negligently
failed to diagnose her pregnancy, thereby precluding J.A. from
opting for an abortion and resulting in her delivery of a healthy
child. See Poor v. Moore, 791 P.2d 1005, 1005, 1008 (Alaska 1990).
B. Should a Cause of Action Be Recognized for a Physician's
Negligent Failure to Diagnose a Pregnancy?
We first consider whether to recognize a cause of action
for negligent failure to diagnose a pregnancy. [Fn. 2] The United
States, arguing that the issue is one of public policy, undertakes
an analysis under D.S.W. v. Fairbanks North Star Borough School
District, 628 P.2d 554, 555 (Alaska 1981), where we adopted a
multifactored test for deciding whether a legal duty should be
deemed to arise in novel situations. [Fn. 3] The result of the
D.S.W. analysis, in the United States' view, is that no duty should
be imposed here.
The D.S.W. test, however, does not apply if the existence
of a duty is governed by statute. [Fn. 4] In the present case, the
United States' argument mistakenly assumes the absence of any
generally applicable physician-patient duty arising under statute.
The subject of medical malpractice is addressed in AS 09.55.530-
.560, whose express purpose is to "codify the law with regard to
medical liability." AS 09.55.530. Alaska Statute 09.55.540(a)
specifically describes a physician's duty to act with "the degree
of knowledge or skill possessed or the degree of care ordinarily
exercised under the circumstances, at the time of the act
complained of, by health care providers in the [doctor's] field or
specialty."[Fn. 5] The diagnosing of pregnancy is well within the
mainstream of commonly rendered medical services to which this
Moreover, the United States' D.S.W. analysis focuses too
heavily on the specific circumstances of the present case. The
existence of a duty turns not on the particularized facts of a
given case, but rather on the basic nature of the relationship
between the parties to the cause of action. [Fn. 6] On past
occasions we have recognized that the unique nature of the
physician-patient relationship confers upon physicians a fiduciary
responsibility toward their patients. See Chizmar v. Mackie, 896
P.2d 196, 203-04 (Alaska 1995) (holding that a doctor has the duty
to refrain from conduct that would foreseeably result in emotional
harm to a patient).
Given the provisions of AS 09.55.540(a) and this court's
recognition of the fiduciary nature of the physician-patient duty,
we conclude that a complaint alleging an examining physician's
negligent failure to diagnose a pregnancy, as well as proximately
resulting injuries, states a valid cause of action for medical
C. Are Expenses of Child Rearing Compensable when Negligent
Misdiagnosis Results in the Birth of a Healthy Child?
The more difficult question is how to conceptualize and
compensate injuries stemming from this tort. The United States
concedes that if negligent failure to diagnose a pregnancy is to be
recognized as a viable cause of action, a plaintiff who proves that
a misdiagnosis has precluded termination of the pregnancy should be
entitled to recover ordinary tort damages through the time of
childbirth, including medical expenses, pain and suffering
associated with the pregnancy and delivery, and lost wages. Cf.
Poor v. Moore, 791 P.2d 1005, 1008 (Alaska 1990). Damages for
emotional distress would also be recoverable. See Chizmar v.
Mackie, 896 P.2d at 203-04.
A harder issue is whether the costs of raising a healthy
child may additionally be awarded and, if so, whether these damages
should be offset by the benefits of parenthood. Neither of the two
jurisdictions recognizing a cause of action for negligent failure
to diagnose a pregnancy has held that child-rearing expenses are
compensable. See Rinard v. Biczak, 441 N.W.2d 441 (Mich. App.
1989); Debora S. v. Sapega, 392 N.Y.S.2d 79 (N.Y. App. Div. 1977).
Courts dealing with the related issue of "wrongful
pregnancy"-- a category typically encompassing failed steriliza-
tion procedures resulting in unwanted pregnancies [Fn. 7] -- are
divided on the recoverability of child-rearing expenses: some allow
full recovery, others adopt a mixed approach in which expenses are
offset by the benefits of having a child, but most allow no
recovery. [Fn. 8] This split in authority in wrongful pregnancy
cases largely reflects diverging policy views. [Fn. 9] States
denying child-rearing expenses advance two principal rationales:
first, the fear that children might someday suffer harm upon
learning that they were not wanted and that a person other than a
parent funded their upbringing; [Fn. 10] second, the belief that a
normal, healthy child should not be regarded as an injury. [Fn. 11]
An additional rationale sometimes mentioned is that child-rearing
costs are too speculative. [Fn. 12] Courts allowing recovery for
wrongful pregnancy have disparaged each of these rationales. [Fn.
In assessing the relative persuasiveness of these
divergent authorities, we take guidance from Poor v. Moore, 791
P.2d at 1007-08, where we declined to allow child-rearing expenses
to a mother who had been seduced and impregnated by her therapist.
We assumed in Poor that the act of seduction amounted to
malpractice, but we nonetheless concluded that the tortious conduct
should not relieve the mother of her duty to support her child.
Id. We took the view that recovery of this kind "could seldom, if
ever, result in benefit to a child." Id. at 1008 (quoting Barbara
A. v. John G., 193 Cal. Rptr. 422 (Ct. App. 1983)).
While M.A. and N.A. accurately observe that Poor is not
binding here because that case involved an action by one parent
against another, Poor is nonetheless highly persuasive. For if
"[t]he fact that the child was conceived during the commission of
a tort on his mother does not relieve her of the statutory and
common law duty of support,"Poor, 791 P.2d at 1007, then it would
seem anomalous that the fact of a failure to diagnose a pregnancy
should relieve both parents of their duty to care for a child whom
they conceived through a volitional act of sexual intercourse.
There is also reason to fear that such a rule would tend
to influence the fates of children who are born of unplanned and
unwanted pregnancies. When a young mother like J.A. considers
whether to keep or relinquish for adoption her newborn child, she
faces a profoundly difficult and uniquely personal decision. The
child's best interests will clearly be served if this decision is
firmly grounded in the mother's family values, her moral
convictions, and her feelings for her child; yet a rule permitting
awards of child-rearing expenses might encourage a decision founded
instead on the vagaries of legal strategy and the desire for
compensation. The risk of this pernicious influence weighs heavily
against any arguable benefit that might be gained from an award of
On prior occasions we have recognized and invoked our
"power to limit claims . . . for public policy reasons." Chizmar,
896 P.2d at 211. We find such restraint necessary here. We hold
that a claim of medical malpractice involving negligent failure to
diagnose a pregnancy may result in recovery of ordinary tort
damages for proximately caused injuries; [Fn. 14] those damages may
compensate for injuries incurred through the time of childbirth.
Beyond that point, no compensation for expenses or other damages
related to rearing a healthy child may be allowed.
D. May M.A. Independently Recover for Negligently Inflicted
The final question centers on M.A.'s right to recover
independently of J.A. for emotional distress that M.A. incurred as
a result of the misdiagnosis of her daughter's condition.
To recover in an action for negligent infliction of
emotional distress, M.A. must have a viable "bystander claim"or
establish that J.A.'s physician owed M.A. a preexisting duty.
Chizmar v. Mackie, 896 P.2d 196, 201, 203-04 (Alaska 1995); see
also Hawks v. State of Alaska, 908 P.2d 1013, 1016 (Alaska 1995).
M.A. asserts that she was owed an independent duty by her
daughter's physician -- that, in assuming responsibility for
treating J.A., J.A.'s physician also "undertook a duty directly to
M.A. to act with the degree of knowledge or skill possessed or the
degree of care ordinarily exercised under the circumstances by
health care providers[.]" Yet the source of a physician's duty to
provide reasonably competent care lies in the unique nature of the
physician-patient relationship. [Fn. 15] M.A. had no physician-
patient relationship with her daughter's physician; nor does M.A.
establish any other source from which a duty toward her might have
arisen. [Fn. 16]
Furthermore, the circumstances of this case could not
support the type of "bystander claim"that allows recovery for
emotional distress in the absence of a preexisting duty. Under
Mattingly v. Sheldon Jackson College, 743 P.2d 356, 365-66 (Alaska
1987), a bystander claim is permissible when a person closely
related to a tort victim and in near proximity to the scene of the
negligent injury suffers severe and foreseeable emotional distress
due to "shock result[ing] more or less contemporaneously with,"or
"follow[ing] closely on the heels of,"the injury's discovery.
Here, M.A. was not in close proximity to J.A., either at the time
of the alleged misdiagnosis or when J.A. subsequently learned of
her pregnancy; M.A.'s eventual "shock,"if any, does not appear to
have occurred contemporaneously with her daughter's discovery of
the injury; and there is no indication that the immediate "shock"
came in response to the alleged injury -- the lateness of the
pregnancy's discovery -- rather than to discovery of the pregnancy
We do not question the devastating emotional impact on
M.A. that was caused by news of J.A.'s pregnancy. The present case
is nevertheless clearly not a suitable one for bystander recovery.
Absent any colorable claim of a preexisting duty by J.A.'s
physician toward M.A. or of circumstances creating bystander
liability, M.A. has no independent right to recover for emotional
distress resulting from negligent misdiagnosis of her daughter's
To summarize, we hold that negligent failure to diagnose
a pregnancy that results in the birth of a healthy child gives rise
to a cause of action for medical malpractice. Recoverable damages
include damages through the time of birth that could ordinarily be
recovered in a medical malpractice action. But following birth,
the cost of raising a healthy child and other damages relating to
child-rearing are not recoverable. And absent a preexisting duty
or circumstances establishing a bystander claim, there is no
independent cause of action on the part of the patient's relatives
for negligent infliction of emotional distress.
1 Appellate Rule 407(a) provides:
The supreme court may answer questions of law
certified to it by the Supreme Court of the
United States, a court of appeals of the
United States, [or] a United States district
court . . . when requested by the certifying
court if there are involved in any proceeding
before it questions of law of this state which
may be determinative of the cause then pending
in the certifying court and as to which it
appears to the certifying court there is no
controlling precedent in the decisions of the
supreme court of this state.
2 Michigan and New York recognize this cause of
action. Rinard v. Biczak, 441 N.W.2d 441 (Mich. App. 1989); Debora
S. v. Sapega, 392 N.Y.S.2d 79 (N.Y. App. Div. 1977). Illinois and
Wisconsin have declined to do so. Cockrum v. Baumgartner, 447
N.E.2d 385 (Ill. 1983); Rieck v. Med. Protective Co., 219 N.W.2d
242 (Wis. 1974). See also Butler v. Rolling Hill Hosp., 555 A.2d
205 (Pa. 1989) (Pennsylvania statute prohibiting causes of action
for wrongful life or wrongful birth precluded cause of action for
failure to diagnose pregnancy).
Specifically, we quoted with approval the test articulated in
Peter W. v. San Francisco Unified School District, 131 Cal. Rptr.
854, 859-60 (Ct. App. 1976):
[t]he foreseeability of harm to the plaintiff,
the degree of certainty that the plaintiff suffered injury, the
closeness of the connection between the defendant's conduct and the
injury suffered, the moral blame attached to the defendant's
conduct, the policy of preventing future harm, the extent of the
burden to the defendant and consequences to the community of
imposing a duty to exercise care with resulting liability for
breach, and the availability, cost and prevalence of insurance for
the risk involved.
See D.S.W., 628 P.2d at 555. See also Hawks v. State of Alaska,
908 P.2d 1013, 1016 (Alaska 1995), and Estate of Day v. Willis, 897
P.2d 78, 81 (Alaska 1995).
See Estate of Day v. Willis, 897 P.2d at 81 ("Whether a legal
duty exists, when not governed by statute, is a public policy
question involving specified considerations that this court
enumerated in [D.S.W.].").
5 AS 09.55.540(a) provides:
[T]he plaintiff [in an action based on negligence] has the burden
of proving by a preponderance of the evidence
1) the degree of knowledge or skill possessed or the degree of
care ordinarily exercised under the circumstances, at the time of
the act complained of, by health care providers in the field or
specialty in which the defendant is practicing;
2) that the defendant either lacked this degree of knowledge
or skill or failed to exercise this degree of care; and
3) that as a proximate result of this lack of knowledge or
skill or the failure to exercise this degree of care the plaintiff
suffered injuries that would not otherwise have been incurred.
Cf. W. Page Keeton et al., Prosser and Keeton on the Law of
Torts 53, at 356 (5th ed. 1984) ("It is better to reserve 'duty'
for the problem of the relation between individuals which imposes
upon one a legal obligation for the benefit of the other, and to
deal with particular conduct in terms of a legal standard of what
is required to meet the obligation.").
7 See Poor v. Moore, 791 P.2d at 1006. In contrast, in a
case involving negligent failure to diagnose a pregnancy, there is
no causal link between the negligence and the pregnancy.
8 Wrongful pregnancy cases allowing full recovery of
child-rearing expenses include Lovelace Med. Ctr. v. Mendez, 805
P.2d 603 (N.M. 1991); Zehr v. Haugen, 871 P.2d 1006 (Or. 1994); and
Marciniak v. Lundborg, 450 N.W.2d 243 (Wis. 1990) (however,
Wisconsin has rejected a cause of action for failure to diagnose
pregnancy (Rieck v. Med. Protective Co., 219 N.W.2d 242 (Wis.
Cases following the mixed approach, or "benefits rule,"
include Hartke v. McKelway, 707 F.2d 1544 (D.C. Cir. 1983) (not
followed by the D.C. Court of Appeals); University of Arizona v.
Superior Court, 667 P.2d 1294 (Ariz. 1983); Stills v. Gratton, 127
Cal. Rptr. 652 (Ct. App. 1976); Ochs v. Borrelli, 445 A.2d 883
(Conn. 1982); Jones v. Malinowski, 473 A.2d 429 (Md. 1984); Burke
v. Rivo, 551 N.E.2d 1 (Mass. 1990); and Sherlock v. Stillwater
Clinic, 260 N.W.2d 169 (Minn. 1977) (questionable in light of dicta
in Hickman v. Group Health Plan, Inc., 396 N.W.2d 10 (Minn. 1986)).
Cases precluding recovery for child-rearing expenses
include Boone v. Mullendore, 416 So.2d 718 (Ala. 1982); Wilbur v.
Kerr, 628 S.W.2d 568 (Ark. 1982); Coleman v. Garrison, 349 A.2d 8
(Del. 1975); Flowers v. District of Columbia, 478 A.2d 1073 (D.C.
1984); Fassoulas v. Ramey, 450 So.2d 822 (Fla. 1984); Fulton-DeKalb
Hosp. Auth. v. Graves, 314 S.E.2d 653 (Ga. 1984); Cockrum v.
Baumgartner, 447 N.E.2d 385 (Ill. 1983); Garrison v. Foy, 486
N.E.2d 5 (Ind. App. 1985); Nanke v. Napier, 346 N.W.2d 520 (Iowa
1984); Byrd v. Wesley Med. Ctr., 699 P.2d 459 (Kan. 1985); Schork
v. Huber, 648 S.W.2d 861 (Ky. 1983); Pitre v. Opelousas Gen. Hosp.,
517 So.2d 1019 (La. App. 1987); Macomber v. Dillman, 505 A.2d 810
(Me. 1986); Rinard v. Biczak, 441 N.W.2d 441 (Mich. App. 1989);
Rolf v. Youngblood, 753 S.W.2d 24 (Mo. App. 1988); Hitzemann v.
Adam, 518 N.W.2d 102 (Neb. 1994); Szekeres v. Robinson, 715 P.2d
1076 (Nev. 1986); Kingsbury v. Smith, 442 A.2d 1003 (N.H. 1982);
Gracia v. Meiselman, 531 A.2d 1373 (N.J. Super. 1987) (dicta);
O'Toole v. Greenberg, 477 N.E.2d 445 (N.Y. 1985); Jackson v.
Bumgardner, 347 S.E.2d 743 (N.C. 1986); Johnson v. Univ. Hosps. of
Cleveland, 540 N.E.2d 1370 (Ohio 1989); Morris v. Sanchez, 746 P.2d
184 (Okla. 1987); Mason v. Western Pa. Hosp., 453 A.2d 974 (Pa.
1982); Smith v. Gore, 728 S.W.2d 738 (Tenn. 1987); Terrell v.
Garcia, 496 S.W.2d 124 (Tex. Civ. App. 1973); C.S. v. Nielson, 767
P.2d 504 (Utah 1988); Miller v. Johnson, 343 S.E.2d 301 (Va. 1986);
McKernan v. Aasheim, 687 P.2d 850 (Wash. 1984); James G. v.
Caserta, 332 S.E.2d 872 (W. Va. 1985); and Beardsley v. Wierdsma,
650 P.2d 288 (Wyo. 1982).
See generally Poor, 791 P.2d at 1006-07.
See generally Russell G. Donaldson, Annotation, Recoverability
of Cost of Raising Normal, Healthy Child Born as Result of
Physician's Negligence or Breach of Contract or Warranty 2[a], 89
A.L.R. 4th 632 (1991).
See, e.g., Boone v. Mullendore, 416 So.2d 718 (Ala. 1982);
Wilbur v. Kerr, 628 S.W.2d 568 (Ark. 1982).
See, e.g., Cockrum v. Baumgartner, 447 N.E.2d 385 (Ill. 1983).
See, e.g., Boone v. Mullendore, 416 So.2d 718 (Ala. 1982);
Sorkin v. Lee, 434 N.Y.S.2d 300 (N.Y. App. Div. 1980).
13 See, e.g., Burke v. Rivo, 551 N.E.2d 1, 4-5 (Mass.
1990) (disparaging future harm to child rationale); University of
Arizona v. Superior Court, 667 P.2d 1294, 1298-99 (Ariz. 1983)
(criticizing sanctity of life rationale); and Marciniak v.
Lundborg, 450 N.W.2d 243, 245-46 (Wis. 1990) (rejecting rationale
As we said in Poor, 791 P.2d at 1008 (footnotes omitted), the
is entitled to recover tort damages for any
injury . . . proximately resulting from [the defendant's] conduct.
Thus, [the plaintiff] may recover medical expenses, pain and
suffering, and lost wages resulting from the tort. [The plaintiff]
may also recover any damages which a client under like circum-
stances who did not become pregnant, could recover, including
damages for emotional distress, as well as punitive damages, if
Cf. Chizmar, 896 P.2d at 205 ("As Savitri's treating
physician, Dr. Mackie owed her a duty to refrain from activity
which presented a foreseeable and unreasonable risk of causing
emotional distress."(emphasis added)); Burgess v. Superior Court,
831 P.2d 1197, 1204 (Cal. 1992) ("Under the facts of this case,
[the mother] is . . . permitted to recover . . . as a result of the
breach of the duty of care arising from the physician-patient
There is no suggestion here of a potential contractual duty,
since it is undisputed that M.A. did not take her daughter to the
hospital or arrange for her to be examined.