"Wrongful pregnancy" actions are a type of medical malpractice involving a physician's negligent performance of a sterilization procedure. The majority of courts addressing wrongful pregnancy claims have held that the plaintiffs have a valid cause of action and have awarded traditional tort remedies of general and special damages relating to actual medical services incident to the birth and delivery—but not the costs of raising the child. Controversy in recent cases has been over awarding childrearing costs. Several courts have departed from the majority and awarded these damages; Burke v. Rivo is the latest. The Burke court held that in addition to recovering all costs associated with the birth, the parents were entitled to recover from the physician the costs of raising their child, offset against the benefits received by the parents of having their child. This Note examines the Burke court's decision to allow childrearing damages, pointing out its strengths and weaknesses, and suggests that other courts generally follow Burke but with some major additions. Part II of this article begins with a discussion of the Burke v. Rivo opinions. It outlines the facts of the Burke case, discusses the majority's allowance of childrearing damages, and concludes with a discussion of the dissent's concern over a potential negative impact of such an award on the child. Part III notes the three major theories used by courts to deny childrearing expenses. These theories are the overriding benefit theory, the adverse effect on the child theory, and the speculative damages theory. The Note concludes that each of these theories is without merit. Part IV focuses on a two-part rule used by some courts to offset the damage award against the benefits of parenthood. The Note concludes that this benefit rule with its same interest limitation, if properly applied, can operate to make fair recoveries possible. Part V is devoted to discussing whether courts should consider the availability of abortion and/or adoption as potential reducers of damages. While recognizing that not everyone considers abortion or adoption as viable alternatives to parenthood, the Note concludes that because both abortion and adoption are legal alternatives in many jurisdictions, courts in those states must consider them in their damages analysis. Part VI discusses a method for determining what interest the parents sought to prevent by undergoing a sterilization procedure. Such a "motivational analysis" is crucial in the wrongful pregnancy context since, as the Note points out, it is a fair and equitable method for properly ascertaining the correct amount of damages. Part VII is the Note's conclusion. It provides a summary and review of the Note's important points.
Michael C. Pallesen,
Wrongful Pregnancy Actions: Should Courts Allow Recovery for Childrearing Expenses?—Burke v. Rivo, 406 Mass. 764, 551 N.E.2d 1 (1990),
70 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol70/iss2/9