The fact that child-rearing costs cannot be recovered as the result of the birth of a normal, healthy child does not mean, however, that health care providers are immunized from all liability resulting from unsuccessful sterilization operations. Damages for the expense, pain and suffering, and loss of consortium associated with the failed operation, pregnancy, and childbirth, if proven, may be recovered.
On March 7, 1980, Dr. Glen Aasheim performed a sterilization operation known as a tubal ligation upon Karen McKernan. Despite the operation, Karen became pregnant and gave birth to a healthy, normal child. In February 1983, Karen and her husband James McKernan filed a lawsuit against the doctor, alleging that the defendant performed the tubal ligation negligently, failed to obtain Karen's informed consent to the tubal ligation, breached his warranty that the tubal ligation would result in permanent sterilization, and violated Karen's constitutional right to prevent future pregnancies. The complaint sought, among other things, damages to the cost of rearing and educating the child. The defendant moved for partial summary judgment dismissing the aforementioned damage. The trial court granted the motion and held that child-rearing costs could not be recovered.
Can parents recover damages in a tort action for the cost of rearing and educating an unplanned normal, healthy child resulting from an unsuccessful sterilization operation?
The Court noted that the majority of courts held, for a variety of reasons that no damages could be recovered for the cost of rearing and educating a normal, healthy child born as the result of medical malpractice. The court also discussed the minority position, the so-called "benefits rule," that permitted the recovery of child-rearing costs on the basis that a healthy, normal child was always more benefit than burden. The court objected to portions of both positions but, nonetheless, found that recovery of child-rearing costs arising from the birth of a normal, healthy child after an unsuccessful sterilization operation violated the public policy of the State of Washington.