600 N.W.2d 670 (1999) 236 Mich. App. 315

Brandy TAYLOR and Brian Taylor, Individually, and Brandy Taylor, as Next Friend and Mother of Shelby Taylor, a Minor, Plaintiffs-Appellants,
v.
Surender KURAPATI, M.D., and Annapolis Hospital, assumed name of United Care, Inc., Defendants-Appellees.

Docket No. 204908.

Court of Appeals of Michigan.

Submitted March 10, 1999, at Detroit. Decided June 25, 1999, at 9:05 a.m. Released for Publication October 8, 1999.

*672 Bendure & Thomas (by Mark R. Bendure and Kevin P. Kavanagh), Detroit, for Brandy and Brian Taylor.

Siemion, Huckabay, Bodary, Padilla, Morganti & Bowerman, P.C. (by Raymond W. Morganti), Southfield, for Surender Kurapati, M.D.

Saurbier, Paradiso & Perrin, P.L.C. (by John M. Perrin and Mark A. Meyer), St. Clair Shores, for United Care, Inc.

Before: DOCTOROFF, P.J., and SMOLENSKI and WHITBECK, JJ. *671

*673 WHITBECK, J.

Plaintiffs Brandy and Brian Taylor, individually, and Brandy Taylor as next friend and mother of Shelby Taylor,^[1] a minor, appeal as of right the trial court's order granting summary disposition in favor of defendants Surender Kurapati, M.D., and Annapolis Hospital with respect to their wrongful birth and negligent infliction of emotional distress claims.

With respect to their wrongful birth claim, the Taylors cite the following description of the tort of wrongful birth in Blair v. Hutzel Hosp., 217 Mich.App. 502, 506-507, 552 N.W.2d 507 (1996), rev'd on other grounds 456 Mich. 877, 569 N.W.2d 167 (1997):

"If a physician breaches the appropriate duty under the facts of a case, and it can be established that the parents would have avoided or terminated the pregnancy, the necessary causal connection is established. The parents should recover for their extraordinary medical expenses and the extraordinary costs of raising the child, as well as the emotional harm they have suffered." [Quoting Proffitt v. Bartolo, 162 Mich.App. 35, 46, 412 N.W.2d 232 (1987).]

With respect to their negligent infliction of emotional distress claim, the Taylors cite Wargelin v. Sisters of Mercy Health Corp., 149 Mich.App. 75, 80-81, 385 N.W.2d 732 (1986), for the proposition that "Michigan has recognized a cause of action based on negligence when a parent who witnesses the negligent infliction of injury to his or her child suffers emotional distress as a consequence."

We note that counsel for the Taylors during oral argument candidly conceded that, but for the claimed existence of the wrongful birth tort, there would be no issue relating to the statute of limitations. Thus, this case revolves around the wrongful birth tort. In this opinion, we address the basic question whether, absent legislative action, such a tort has a rightful place in our jurisprudence. We conclude that it does not. We further conclude that the Taylors failed to file their complaint within the applicable limitation period. We also conclude that the undisputed facts of this case do not support a claim of negligent infliction of emotional distress and that summary disposition was also appropriate with regard to this aspect of the case.

I. Basic Facts And Procedural History

The Taylors filed their complaint in August 1996.^[2] The Taylors alleged that Brandy Taylor had a doctor-patient relationship with Kurapati, a specialist in radiology, and Annapolis. On April 19, 1994, Brandy Taylor gave birth to the couple's daughter, Shelby Taylor. Throughout her pregnancy, Brandy Taylor had been treated by Dr. Leela Suruli. Suruli had ordered that a routine ultrasound be performed in Brandy Taylor's second trimester. The ultrasound was conducted on December 4, 1993, and interpreted by Kurapati, an agent of Annapolis. Kurapati concluded that the pregnancy was seventeen weeks along, plus or minus *674 two weeks, and that there were no visible abnormalities with the fetus. A second ultrasound was conducted on March 16, 1994, and interpreted by another physician, Dr. M.B. Cash. Cash indicated that the baby's femurs could not be adequately identified and believed that a high resolution ultrasound could be helpful for further investigation. Suruli told Brandy Taylor that the baby had short femur bones and would merely be shorter than average. Brandy Taylor decided not to have another ultrasound. Shelby Taylor was born on April 19, 1994, with "gross anatomical deformities including missing right shoulder, fusion of left elbow, missing digits on left hand, missing femur on left leg and short femur on right." A study at the University of Michigan Hospital suggested that Shelby Taylor had femur-fibula-ulna syndrome.

In their complaint, the Taylors alleged that the standard of care in performing the initial ultrasound had been breached by Kurapati when he failed to locate all four limbs at the time of the ultrasound. The Taylors alleged that the ultrasound should have shown Shelby Taylor's disabilities and that the failure to reveal the disabilities deprived the Taylors of their right to make a reproductive decision regarding the pregnancy. In addition to their claim of medical malpractice, the Taylors also alleged that, because of defendants' negligence, they suffered emotional distress at witnessing the birth of their child.

In early April 1997, Annapolis filed a motion for summary disposition pursuant to MCR 2.116(C)(7), (C)(8), and (C)(10). Annapolis primarily argued that the Taylors had failed to file their complaint within the statute of limitations for medical malpractice actions. Soon thereafter, Kurapati filed a similar motion for summary disposition pursuant to MCR 2.116(C)(7), (C)(8), and (C)(10).

The trial court held a hearing regarding defendants' motions in early May 1997. The trial court concluded that the Taylors' medical malpractice claim was not timely filed and dismissed the complaint with regard to any malpractice claims. However, the trial court allowed the Taylors' claim of negligent infliction of emotional distress to go forward, because the parties had not addressed the issue in their briefs. The trial court gave defendants an opportunity to submit motions for summary disposition with regard to the negligent infliction of emotional distress claim and eventually, without oral arguments, granted defendants' motions for summary disposition of the Taylors' claim of negligent infliction of emotional distress. The trial court also denied the Taylors' motion for reconsideration with regard to its earlier ruling regarding the statute of limitations.

II. The Wrongful Birth Tort

A. The Closely Analogous Birth-Related Torts

(1) Introduction

The wrongful birth tort is within a constellation of birth-related torts and is closely related to two other such torts: "wrongful conception" and "wrongful life." At the outset, however, we note that the relationship between the wrongful birth tort and other, more firmly established torts of birth-related medical malpractice is considerably more tenuous. Michigan has long recognized that causes of action exist in—and we use the cruel but evocative trial parlance with extreme hesitation—"bad baby" cases. In such cases, courts and juries have held physicians and other health professionals liable for birth- or pregnancy-related disabilities caused in whole or in part by their negligence.^[3]

*675 These cases generally involve negligence occurring fairly close in time to, if not contemporaneous with, the birth itself.^[4] This is unlike the wrongful birth tort that usually involves an allegation of a negligent failure relatively early in the pregnancy to inform the parents of the risk of birth defects. Further, these cases do not involve the intermediate step of parental action. That is, they do not involve an allegation that the negligence deprived the parents of the opportunity to terminate the pregnancy.^[5] In other words, such cases are simply a typical claim of medical malpractice injuring a person. They are not wrongful birth claims because they involve no allegation that the baby involved should never have been born, but rather involve an allegation that, absent malpractice, the same baby would have been born without certain injuries.

Further, despite rhetorical similarities, the wrongful birth tort has little to do with "end of life" cases. These cases have their basis in a person's right to make medical decisions, grounded in the common law,^[6] state statutes or state constitutions,^[7] or in the federal constitutional liberty interest^[8] in refusing unwanted medical treatment. In this regard, Michigan recognizes a right to withhold or withdraw life-sustaining medical treatment under the common-law doctrine of informed consent. In re Martin, 450 Mich. 204, 215, 538 N.W.2d 399 (1995). Any similarity that might exist between these end of life cases and the wrongful birth tort derives not from situations involving a competent patient's right to make such medical decisions. Rather the similarity derives from situations involving a once-competent patient, who has utilized a living will^[9] or other advance directive ^[10] or a do-not-resuscitate order^[11] to proscribe certain types of treatment; a once-competent patient who has left no such instructions;^[12] or a never-competent patient.^[13] Generally, *676 these situations involve the use of surrogates who have, or who seek, the power to make life or death decisions on behalf of the patient. There is, therefore, an analogy between these cases and the surrogate role of the parents in wrongful birth cases who have, but argue that the physician's negligence deprived them of, the right under controlling federal precedent to terminate a pregnancy.

However, the analogy is not a close one, for several reasons. First, although much of the litigation and legislative activity in the end of life area may have its roots in a fear of liability, the actions themselves do not generally arise in a tort context. Second, courts generally recognize that the right to refuse life-prolonging procedures, whether directly or through surrogates, is not an absolute one and often balance that right against the state's interests, including the interest in preserving life, preventing suicide, protecting innocent third parties, and maintaining the ethical integrity of the medical profession.^[14] In wrongful birth cases, however, courts often consider these interests to be inapplicable or shunt them aside. Thus, the most fruitful comparisons for analytic purposes are to the closely analogous birth-related torts of wrongful conception and wrongful life.

(2) Wrongful Conception

As Anthony Jackson outlines,^[15] an action for wrongful conception, also known as wrongful pregnancy, arises where the defendant's negligent conduct failed to prevent the birth of a child in the following situations: (1) where a physician negligently performs a vasectomy or tubal ligation ^[16] or when a physician, pharmacist, or other health professional provides any other type of ineffective contraception, the parents conceive, and the birth of a healthy, but unplanned, baby results;^[17] (2) where a physician negligently fails to diagnose a pregnancy, thereby denying the mother the choice of termination of the pregnancy at a timely stage, and the birth of a healthy, but unwanted, baby results;^[18] and (3) where a physician negligently attempts to terminate the pregnancy and the birth of a healthy, but unwanted, baby results.^[19] Of course, the latter two situations do not actually involve a claim that a defendant's negligence was a factor in the conception of the child.

As noted, this Court has recognized a cause of action for wrongful conception. According to our research, the first case definitively on point was Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971). In Troppi, as this Court described it in Rouse v. Wesley, 196 Mich.App. 624, 628, 494 N.W.2d 7 (1992), the parents had seven children and decided to limit the size of their family. The Troppis' physician prescribed oral contraceptives for Mrs. Troppi but the defendant pharmacist negligently provided Mrs. Troppi with tranquilizers. Presumably as a result, Mrs. Troppi conceived and delivered an eighth, and healthy, child. Id. The Troppi panel permitted *677 the Troppis to maintain an action for the costs^[20] of raising this eighth child to the age of majority.

The Troppi panel was careful to declare, at least initially, that it was not blazing new ground:

Contraception, conjugal relations, and childbirth are highly charged subjects. It is all the more important, then, to emphasize that resolution of the case before us requires no intrusion into the domain of moral philosophy. At issue here is simply the extent to which defendant is civilly liable for the consequences of his negligence. In reversing and remanding for trial, we go no further than to apply settled common-law principles. [Troppi, supra at 244-245, 187 N.W.2d 511.]

The Troppi panel then reviewed the common-law concepts of breach of duty,^[21] causation in fact,^[22] and direct and proximate causation resulting in damages^[23] and concluded:

This review of the elements of tort liability points up the extraordinary nature of the trial court's holding that the plaintiffs were entitled to no recovery as a matter of law.[^[24]] We have here a negligent, wrongful act by the defendant, which act directly and proximately caused injury to the plaintiffs.

What we must decide is whether there is justification here for a departure from generally applicable, well-established principles of law:

"The general rule of damages in an action of tort is that the wrongdoer is liable for all injuries resulting directly from the wrongful acts, whether they could or could not have been foreseen by him, provided the particular damages in respect to which he proceeds are the legal and natural consequences of the wrongful act imputed to the defendant, and are such as, according to common experience and the usual course of events, might reasonably have been anticipated. Remote, contingent, or speculative damages will not be considered in conformity to the general rule above laid down." Van Keulen & Winchester Lumber Co. v. Manistee & N. R. Co. [222 Mich. 682, 687, 193 N.W. 289 (1923).] [Troppi, supra at 246-247, 187 N.W.2d 511.]

Having declared that the issue with respect to this new tort was whether its noncreation could be justified as an exception to common-law principles, the Troppi panel concluded that there was no valid reason why the trier of fact should not be free to assess damages "as it would in any other negligence case." Id. at 252, 187 N.W.2d 511. Picking up speed, the Troppi panel plunged into a discussion of public policy (relying, in part, on its perception of "the State's advocacy of family planning," *678 id. at 253, 187 N.W.2d 511) and then paused at midpoint to soundly endorse the application of the "benefits rule." See id. at 252-262, 187 N.W.2d 511. The Restatement as then in effect, Restatement, Torts, § 920, p. 616, expressed this rule as:

Where the defendant's tortious conduct has caused harm to the plaintiff or to his property and in so doing has conferred upon the plaintiff a special benefit to the interest which was harmed, the value of the benefit conferred is considered in mitigation of damages, where this is equitable. [Emphasis supplied.]

The Troppi panel saw no problem in applying this rule in a wrongful conception case:

Since pregnancy and its attendant anxiety, incapacity, pain, and suffering are inextricably related to child bearing, we do not think it would be sound to attempt to separate those segments of damage from the economic costs of an unplanned child in applying the "same interest" [^[25]] rule. Accordingly, the benefits of the unplanned child may be weighed against all the elements of claimed damage.

The trial court evidently believed, as did the court in Shaheen v. Knight, supra,[^[26]] that application of the benefits rule prevents any recovery for the expenses of rearing an unwanted child. This is unsound. Such a rule would be equivalent to declaring that in every case, as a matter of law, the services and companionship of a child have a dollar equivalent greater than the economic costs of his support, to say nothing of the inhibitions, the restrictions, and the pain and suffering caused by pregnancy and the obligation to rear the child.

There is a growing recognition that the financial "services" which parents can expect from their offspring are largely illusory.[^[27]] As to companionship, cases decided when "loss of companionship" was a compensable item of damage for the wrongful death of a child reveal no tendency on the part of juries to value companionship so highly as to outweigh expenses in every foreseeable case.[^[28]]

Our discussion should not be construed as an expression of doubt as to the efficacy of the benefits rule in cases like the one before us. On the contrary, we believe that rule to be essential to the rational disposition of this case and the others that are sure to follow. The benefits rule allows flexibility in the case-by-case adjudication of the enormously varied claims which the widespread use of oral contraceptives portends. [Id. at 255-256, 187 N.W.2d 511 (emphasis supplied).]

The Troppi panel then brushed aside the problem of placing a dollar value on the companionship and services of an unwanted child. The panel stated that "difficulty in determining the amount to be subtracted from the gross damages does not justify throwing up our hands and denying recovery altogether," id. at 261, 187 N.W.2d 511, holding that a trier of fact could find a basis for the "reasonable ascertainment of the amount of the damages," id. This Court reached a similar result in Green v. Sudakin, 81 Mich.App. 545, 265 N.W.2d *679 411 (1978).^[29]

However, in Rinard v. Biczak, 177 Mich. App. 287, 441 N.W.2d 441 (1989), this Court reached a far different conclusion. Rinard involved a suit by the plaintiffs against the defendant physician in which the plaintiffs alleged medical malpractice for the defendant's failure to diagnose Mrs. Rinard's pregnancy. At trial, the plaintiffs testified that Mrs. Rinard probably would have sought to terminate the pregnancy had the defendant properly diagnosed that pregnancy. The jury awarded the plaintiffs damages for the cost of raising their healthy child. Id. at 289-290, 441 N.W.2d 441. The Rinard panel reversed, holding that neither natural nor adoptive parents can recover the costs of "raising a normal, healthy child because those costs are outweighed by the benefits of that child's life." Rinard, supra at 290, 441 N.W.2d 441.

In reaching this conclusion, the Rinard panel observed that Michigan is among the minority of states that allow the recovery of the costs of raising a child as an element of damages, offset by the benefits received by the parents from a parent-child relationship. Rinard, supra at 292, 441 N.W.2d 441. The panel commented that, "[i]n a substantially greater number of jurisdictions, courts have denied the recovery of child-rearing costs." Id. (citations omitted). Further, "[i]t appears that the majority of states do not allow recovery of the costs of raising `a healthy, normal child' as a element of damages in a wrongful pregnancy case."^[30] The Rinard panel then went on to criticize the application of the benefits rule in wrongful pregnancy cases:

Courts have not allowed the recovery of the costs of raising a normal, healthy child as an element of damages for many reasons.[^[31]] We consider the best reason to be that the costs of raising such a child are outweighed by the value of that child's life. In Rohm v. Stroud, 386 Mich. 693, 696, 194 N.W.2d 307 (1972), our Supreme Court stated that the value of a minor child's services to a parent is at least as great as the amount expended by the parent on the child's support, maintenance and education. In that wrongful death case, our Supreme Court further stated that parents are at least entitled to the presumption that a child is worth his keep, and the negligent act which snuffs out their child's life deprives them of services at least equal to the amount of their pecuniary outlay. 386 Mich. [at] 697 [194 N.W.2d 307].

The instant case does not involve a wrongful death claim. However, allowing the costs of raising a child as an element of damages logically requires the conclusion that the nonexistence of that child would be a benefit. [Morris v. Sanchez, 746 P.2d 184, 188 (Okla., 1987) ]. We agree with the reasoning of the Illinois Court of Appeals which stated:

"The existence of a normal, healthy life is an esteemed right under our laws, *680 rather than a compensable wrong. [Wilczynski v. Goodman, 73 Ill.App.3d 51, 62, 29 Ill.Dec. 216, 391 N.E.2d 479, 487 (1979).]"

In a proper hierarchy of values, the benefit of life should not be outweighed by the expense of supporting it. [Cockrum v. Baumgartner, 95 Ill.2d 193, 201, 69 Ill.Dec. 168, 447 N.E.2d 385 (1983).] A court "`has no business declaring that among the living are people who never should have been born.'"[^[32]] Proffitt, supra, p. 51 [412 N.W.2d 232], quoting Smith v. Cote, 128 N.H. 231, 249, 513 A.2d 341, 353 (1986).

Another reason for not allowing the recovery of child-rearing costs as an element of damages is that, to maximize their recovery under the benefits rule, parents must demonstrate that they did not want their child and that the child is of minimal value to them. Michigan should not allow "`the unseemly spectacle of parents disparaging the "value" of their children or the degree of their affection for them in open court.'" Cockrum, supra, p. 202 [69 Ill.Dec. 168, 447 N.E.2d 385], quoting Public Health Trust v. Brown, 388 So.2d 1084, 1086, n. 4 (Fla.App., 1980). A related concern is for the child who may learn that his parents did not want him to exist and sued to have the person who made his existence possible provide for his support. Wilbur v. Kerr, 275 Ark. 239, 242-244, 628 S.W.2d 568, 570-571 (1982). [Rinard, supra at 292-294, 441 N.W.2d 441 (citations omitted).]

Thus, in the 1970s and 1980s, this Court reached conflicting conclusions concerning the value of a healthy child's life. On the one hand, the Troppi and Rinard panels assumed that a trier of fact could ascertain a "reasonable" value for that life, which might or might not exceed the expense of the child's support. On the other hand, the Rinard panel concluded that the value of that life is at least equal to the expense of the child's support and, further, that the benefit of that child's life should not be outweighed by the expense of supporting it.

This Court resolved, at least partially, this conflict in Rouse, supra. Rouse was unquestionably a wrongful conception case in which the plaintiffs sued over an unsuccessful tubal ligation performed on Mrs. Rouse. Id. at 625-626, 494 N.W.2d 7. As in Troppi, presumably as a result of the fact that the surgery was unsuccessful, Mrs. Rouse thereafter conceived. She then delivered a sixth, and healthy, child. While the trial court permitted the plaintiffs to maintain the action for medical costs and pain and suffering, it granted the defendants summary disposition with respect to the plaintiffs' claim for damages for the cost of raising the child to the age of majority, following the decision in Rinard, supra. See Rouse, supra at 625-626, 494 N.W.2d 7. Thereafter, on the plaintiffs' motion, the trial court dismissed the remaining counts in the complaint without prejudice. The plaintiffs appealed, contending that the trial court should have permitted them to maintain an action for the cost of raising the child to majority as part of their suit for wrongful conception. Id. at 626, 494 N.W.2d 7.

The Rouse panel held that in the context of a wrongful conception^[33] action, a plaintiff may not recover the customary cost of raising and educating the child. Id. at 631-632, 494 N.W.2d 7. In reaching this narrow decision, the Rouse panel articulated a broader concept and one that we consider to be of surpassing importance:

*681 As recognized by this Court on previous occasions, the subjects of reproduction, contraception, and the decision to avoid or terminate pregnancy are highly personal subjects fraught with controversy. It is therefore understandable that a conflict has arisen in decisions from this Court, as well as in other jurisdictions, with respect to whether parents may recover the customary cost of raising a child where, although the parents attempt to avoid pregnancy, conception and the birth of a child occurs as a result of the negligence of a doctor or other responsible person. We hold, however, that such recovery should not be available in Michigan.

We recognize that the cost of raising a child to majority is significant and may, in certain circumstances, impose a hardship upon the child's parents. We further recognize, however, that all human life is presumptively valuable. Simply stated, a child should not be considered a "harm" to its parents so as to allow recovery for the customary cost of raising the child. Our Supreme Court has held in the context of wrongful death actions that the benefits of the services of a minor child to the child's parents are at least as great as the cost of raising the child to majority. Rohm [supra.] [^[34]] See also Rinard, supra, [at] 292 [441 N.W.2d 441]. Similarly, in the context of a wrongful pregnancy action, we hold as a matter of law that the value of the life of a child will always outweigh the customary cost of raising that child to majority. The benefits rule is therefore inapplicable in a wrongful pregnancy action. [Rouse, supra at 630-631, 494 N.W.2d 7 (emphasis supplied).]

We recognize that the Rouse decision did not rule out a wrongful conception action for medical costs and pain and suffering. We further recognize that Rouse dealt with an unwanted, but healthy, child while wrongful birth actions deal with unwanted, and disabled, children. We do not concede, however, that an intermediate appellate court of this state should implicitly endorse the view that the life of a disabled child is worth less than the life of a healthy child. If all life is presumptively valuable, Rouse, supra at 631, 494 N.W.2d 7, how can we say that what we really mean is that all lives except for the lives of the disabled are presumptively valuable? If we say that the benefits rule is inapplicable to the lives of healthy children, id., how can we then continue, at least implicitly, to apply that rule to the lives of disabled children? If we conclude that in a proper hierarchy of values, the expense of supporting life should not outweigh the benefit of that life, Rinard, supra at 293, 441 N.W.2d 441, how can we say that what we really mean is that such expense should not outweigh the benefit of lives of healthy children, but can outweigh the benefit of lives of disabled children? If we say that a court "has no business declaring that among the living are people who never should have been born," id., how can we continue to say—and here virtually explicitly through the device of compensating the parents for the expenses of that "wrongful birth"—that courts can go about the business of declaring that living, but disabled, children should never have been born? To say the least, this Court's language in its partial repudiation of the wrongful conception doctrine in Rouse raises the most troubling of questions about the continued viability of the wrongful birth tort in Michigan.^[35]

*682 (3) Wrongful Life

As Anthony Jackson outlines:^[36]

The claim is brought by or on behalf of the child who alleges that she was born because of the doctor's negligent failure to properly advise her parents and, as a result, has to suffer the condition. The doctor's negligent advice causes the pain, suffering, and financial hardship experienced each day by the child.

The doctor has not caused the disability itself. But for the doctor's negligent acts, however, the child would not have been born and, thus, would not have suffered the ensuing condition. The parents either would have decided not to conceive or, if they became aware of the condition at a later stage, would have terminated the pregnancy in accordance with the applicable law.

In Proffitt v. Bartolo, 162 Mich.App. 35, 412 N.W.2d 232 (1987), this Court held that the wrongful life cause of action was not available in Michigan. Proffitt involved, in count I, the parents' action for wrongful birth. Count II, however, was the parents' action on behalf of their daughter, Maya Proffitt, alleging that she would be unable to earn any income and therefore seeking recovery for the "`extensive medical, institutional and educational' expenses" that she would incur after reaching age eighteen. Maya Proffitt's parents also requested, on her behalf, damages for the "`severe pain and suffering, emotional distress and pain, embarrassment and humiliation' resulting from her grave congenital deformities." Proffitt, supra at 39, 412 N.W.2d 232.

The underlying allegation of negligence involved the defendant physician Dr. Bartolo's treatment of Mrs. Proffitt. As the Proffitt panel described it:

Dr. Bartolo sent Yasmin to Mercy-Memorial Hospital in Monroe, Michigan, for studies. On February 26, 1976, the blood studies were performed, including a test for rubella. During March, 1976, Yasmin continued under Dr. Bartolo's care and complained of chronic headaches, fever, malaise, and gastrointestinal discomfort. On March 17, 1976, Dr. Bartolo again admitted Yasmin to the hospital for the treatment of a parasitic infection associated with hematemesis and headaches. Dr. Bartolo diagnosed Yasmin's condition as a whipworm infestation and discharged her from the hospital on March 19, 1976. In the following months, Yasmin continued to complain of chronic headaches, nausea, malaise, and fever to Dr. Bartolo.

David called Dr. Bartolo on June 14, 1976, to complain about Yasmin's high fever. At the end of the conversation, Dr. Bartolo advised plaintiffs that he could no longer provide professional services to them and that they should seek the services of another physician. Plaintiffs retained the services of another physician who delivered the child, plaintiff Maya S. P