689 A.2d 409 (1997)

Diane EMERSON et al.
v.
Henry MAGENDANTZ, M.D., et al.

No. 95-306-Appeal.

Supreme Court of Rhode Island.

February 26, 1997.

*410 Paul S. Cantor, Providence, for Plaintiffs.

R. Kelly Sheridan, Adam C. Robitaille, Providence, for Defendants.

OPINION

WEISBERGER, Chief Justice.

This case comes before us on questions of law certified by a justice of the Superior Court in response to a motion to dismiss pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure filed by the defendant, Henry Magendantz, M.D., in opposition to a complaint of plaintiffs, Diane Emerson and Thomas F. Emerson (the Emersons or Diane), alleging negligence on the part of the defendant. The certified questions are as follows:

"1. Is there a cause of action under Rhode Island law when a physician negligently performs a sterilization procedure and the patient subsequently becomes pregnant and delivers a child from that pregnancy?

"2. If so, what is the measure of damages?"

The facts giving rise to these certified questions may be summarized as follows from the pleadings and the documents filed by the parties in the Superior Court and in this court. Following the birth of their first child, the Emersons decided for financial reasons to limit their family to one child. Having made this decision, Diane consulted defendant, who was a gynecological specialist, concerning sterilization procedures. The defendant agreed to perform a surgical tubal ligation and did so upon Diane on January 10, 1991. Subsequently, on or about May 31, 1991, Diane was seen by an obstetrician, who determined that she was pregnant in spite of the preceding tubal ligation. Diane gave birth to a child on January 11, 1992. The child, who was named Kirsten, is alleged to have congenital problems that are only generally described in the complaint. Following Kirsten's birth, Diane underwent a second tubal ligation.

In March 1994 the Emersons filed a complaint in the Superior Court for the County of Providence, alleging that Kirsten's birth was proximately caused by defendant's negligent performance of the tubal-ligation procedure. The complaint also alleged that defendant had failed properly to inform Diane and to obtain her consent prior to surgery.

*411 The Emersons also allege that as a result of defendant's negligence Diane suffered severe physical pain and required additional invasive medical treatment. The Emersons further allege that they have suffered mental anguish and distress and that they have lost wages and earning capacity as a result of Diane's unanticipated pregnancy. The Emersons further complain that as a proximate result of defendant's negligence, they have incurred an obligation to expend monetary resources for the medical care and maintenance of Kirsten and that they will continue to be so obligated for many years to come.

I

Is There a Cause of Action under Rhode Island Law When a Physician Negligently Performs a Sterilization Procedure and the Patient Subsequently Becomes Pregnant and Delivers a Child?

This question poses an issue of first impression in this state. Of the numerous courts that have considered this question, only one state court of last resort has declined to recognize a cause of action in tort arising out of the negligent performance of a sterilization procedure. Szekeres v. Robinson, 102 Nev. 93, 715 P.2d 1076 (1986). Even Nevada has suggested there may be an action for breach of warranty. Id. 715 P.2d at 1079.^[1] All other jurisdictions that have considered this question have determined that the negligent performance of a sterilization procedure is a tort for which recovery would be allowed under state law. See, e.g., University of Arizona Health Sciences Center v. Superior Court of Arizona, 136 Ariz. 579, 667 P.2d 1294 (1983); Ochs v. Borrelli, 187 Conn. 253, 445 A.2d 883 (1982); Jones v. Malinowski, 299 Md. 257, 473 A.2d 429 (1984); Burke v. Rivo, 406 Mass. 764, 551 N.E.2d 1 (1990); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977); Marciniak v. Lundborg, 153 Wis.2d 59, 450 N.W.2d 243 (1990). In all, approximately thirty-five jurisdictions recognize a cause of action for negligent performance of sterilization procedures whether performed on the wife or on the husband.

We are persuaded by the overwhelming majority of opinions that recognize negligent performance of a sterilization procedure as a tort for which recovery may be allowed. Therefore, we answer the first question in the affirmative.

II

What Is The Measure Of Damages?

Courts that have recognized the cause of action arising out of the negligent performance of sterilization or comparable procedures have adopted three general types of remedies as compensation for negligent procedures resulting in unwanted pregnancies. Thirty jurisdictions have adopted a remedy of limited recovery. See Boone v. Mullendore, 416 So.2d 718 (Ala.1982); Wilbur v. Kerr, 275 Ark. 239, 628 S.W.2d 568 (1982); Coleman v. Garrison, 349 A.2d 8 (Del.1975), modified in part by Garrison v. Medical Center of Delaware, Inc., 581 A.2d 288 (Del. 1990); Flowers v. District of Columbia, 478 A.2d 1073 (D.C.App.1984); Public Health Trust v. Brown, 388 So.2d 1084 (Fla.Dist.Ct. App.1980); Fulton-DeKalb Hospital Authority v. Graves, 252 Ga. 441, 314 S.E.2d 653 (1984); Cockrum v. Baumgartner, 95 Ill.2d 193, 69 Ill.Dec. 168, 447 N.E.2d 385, cert. denied, 464 U.S. 846, 104 S.Ct. 149, 78 L.Ed.2d 139 (1983); Garrison v. Foy, 486 N.E.2d 5 (Ind.Ct.App.1985); Nanke v. Napier, 346 N.W.2d 520 (Iowa 1984); Byrd v. Wesley Medical Center, 237 Kan. 215, 699 P.2d 459 (1985); Schork v. Huber, 648 S.W.2d 861 (Ky.1983); Pitre v. Opelousas General Hospital, 530 So.2d 1151 (La.1988) (granting expenses of pregnancy and delivery, mother's pain and suffering, loss of consortium, and emotional distress for pregnancy resulting from failed sterilization, and intimating that proof of foreseeable risk of birth defects might result in greater damages); Macomber v. Dillman, 505 A.2d 810 (Me.1986); Rinard v. Biczak, 177 Mich.App. *412 287, 441 N.W.2d 441 (1989); Girdley v. Coats, 825 S.W.2d 295 (Mo. banc 1992); Kingsbury v. Smith, 122 N.H. 237, 442 A.2d 1003 (1982) (court referred to case as "wrongful birth" case, but child was healthy); Hitzemann v. Adam, 246 Neb. 201, 518 N.W.2d 102 (1994); P. v. Portadin, 179 N.J.Super. 465, 432 A.2d 556 (1981); O'Toole v. Greenberg, 64 N.Y.2d 427, 488 N.Y.S.2d 143, 477 N.E.2d 445 (1985); Jackson v. Bumgardner, 318 N.C. 172, 347 S.E.2d 743 (1986); Johnson v. University Hospitals of Cleveland, 44 Ohio St.3d 49, 540 N.E.2d 1370 (1989); Morris v. Sanchez, 746 P.2d 184 (Okl.1987); Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 453 A.2d 974 (Pa.1982); Smith v. Gore, 728 S.W.2d 738 (Tenn.1987); Crawford v. Kirk, 929 S.W.2d 633 (Tex.App.1996); C.S. v. Nielson, 767 P.2d 504 (Utah 1988); Miller v. Johnson, 231 Va. 177, 343 S.E.2d 301 (1986); McKernan v. Aasheim, 102 Wash.2d 411, 687 P.2d 850 (1984) (en banc); James G. v. Caserta, 175 W.Va. 406, 332 S.E.2d 872 (1985); Beardsley v. Wierdsma, 650 P.2d 288 (Wyo.1982).

Under the limited-recovery rule the foregoing jurisdictions frequently grant compensation to the plaintiffs for the medical expenses of the ineffective sterilization procedure, for the medical and hospital costs of the pregnancy, for the expense of a subsequent sterilization procedure, for loss of wages, and sometimes for emotional distress arising out of the unwanted pregnancy and loss of consortium to the spouse arising out of the unwanted pregnancy. They also generally include medical expenses for prenatal care, delivery, and postnatal care.

A number of jurisdictions allow for recovery of the cost of child rearing as an element of damages. These jurisdictions may be divided into two groups. One group allows the cost of child rearing but balances against this cost the benefits derived by the parents, either economic or emotional, from having a healthy child. See, e.g., University of Arizona Health Sciences Center v. Superior Court of Arizona, 136 Ariz. 579, 667 P.2d 1294 (1983); Ochs v. Borrelli, 187 Conn. 253, 445 A.2d 883 (1982); Burke v. Rivo, 406 Mass. 764, 551 N.E.2d 1 (1990).

Two jurisdictions have adopted a full-recovery rule without offsetting either the economic or the emotional benefits to be derived from having a healthy child. Lovelace Medical Center v. Mendez, 111 N.M. 336, 805 P.2d 603 (1991); Marciniak v. Lundborg, 153 Wis.2d 59, 450 N.W.2d 243 (1990). These two courts apply traditional tort principles in allowing for recovery of all damages that are reasonably foreseeable and that would result from the negligent performance of the sterilization procedure. In analyzing § 920 of the Restatement (Second) Torts (1979), which recommends consideration of benefits conferred in mitigation of damages, the New Mexico Supreme Court concluded that applying emotional benefits to economic loss did not apply similar benefits to similar losses. Lovelace, 805 P.2d at 613-14. Consequently that court denied recovery for emotional distress and also denied any offset of emotional benefits derived from having a healthy child. Id.

Similarly the Supreme Court of Wisconsin declined to offset emotional benefits against economic loss. Marciniak, 450 N.W.2d at 249. The court also declined to offset economic benefits because the court deemed them to be insignificant. Id.

After considering with great care the opinions in support of limited recovery, of full recovery with benefit offsets, and of full recovery without benefit offsets, we have decided to adopt the limited-recovery rule as described above, save for the element of emotional distress arising out of an unwanted pregnancy that results in the birth of a healthy child.

The Supreme Court of Washington in McKernan v. Aasheim, supra, has made some pertinent comments:

"We believe that it is impossible to establish with reasonable certainty whether the birth of a particular healthy, normal child damaged its parents. Perhaps the costs of rearing and educating the child could be determined through use of actuarial tables or similar economic information. But whether these costs are outweighed by the *413 emotional benefits which will be conferred by that child cannot be calculated. The child may turn out to be loving, obedient and attentive, or hostile, unruly and callous. The child may grow up to be President of the United States, or to be an infamous criminal. In short, it is impossible to tell, at an early stage in the child's life, whether its parents have sustained a net loss or net gain." 687 P.2d at 855.

Similarly, the Delaware Supreme Court, in denying recovery of child-rearing costs, suggested that determining damage from the birth of a child was an "exercise in prophecy." Coleman v. Garrison, 349 A.2d 8, 12 (Del.1975). Such a weighing process might be applied at the end of a life but not at the beginning. Such an undertaking was not felt to be within the specialty of factfinders. Id. In Rieck v. Medical Protective Co. of Fort Wayne, Indiana, 64 Wis.2d 514, 219 N.W.2d 242 (1974), later superseded by Marciniak v. Lundborg, supra, the Supreme Court of Wisconsin, in a wrongful-birth case wherein pregnancy was diagnosed too late for an abortion to be performed, commented upon the alternative of adoption as follows:

"To allow damages in a suit such as this would mean that the physician would have to pay for the fun, joy and affection which plaintiff * * * will have in the rearing and educating of this, defendant's fifth child. Many people would be willing to support this child were they given the right of custody and adoption, but according to plaintiff's statement, plaintiff does not want such. He wants to have the child and wants the doctor to support it. In our opinion to allow such damages would be against public policy." Rieck, 219 N.W.2d at 245 (quoting Shaheen v. Knight, 11 Pa.D. & C.2d 41 (1957)).

In Johnson v. University Hospitals of Cleveland, 44 Ohio St.3d 49, 540 N.E.2d 1370, 1377 (1989), the Supreme Court of Ohio, after considering rules adopted by the various states, suggested that it would not mechanically apply the rules of proximate cause and foreseeability. It suggested that proximate cause is merely the limitation that the courts have placed upon the actor's responsibility for the consequences of the actor's conduct. Id. (citing Prosser & Keeton, The Law of Torts, § 41 at 264 (5th Ed.1984)). The court cited with approval the text that "`the legal limitation of the scope of liability is associated with policy—with our more or less inadequately expressed ideas of what justice demands.'" 540 N.E.2d at 1377. The court went on to reject the no-recovery rule, the offsetting-benefits rule, and the full-recovery rule. Id. at 1378. In rejecting the full-recovery rule, the court stated that the "strict rules of tort should not be applied to an action to which they are not suited, such as a wrongful pregnancy case, in which a doctor's tortious conduct permits to occur the birth of a child rather than the causing of an injury." Id. The court went on to state that the "limited-damages theory [was] the most persuasive rule." Id. In Cockrum v. Baumgartner, supra, the Supreme Court of Illinois also canvassed the field of decisional and textual law. It concluded by stating:

"We cannot on balance accept the plaintiffs' contention too that we should rigidly and unemotionally, as they put it, apply the tort concept that a tortfeasor should be liable for all of the costs he has brought upon the plaintiffs. It has been perceptively observed, by distinguished authority [Justice Holmes], that the life of the law is not logic but experience. Reasonableness is an indispensable quality in the administration of justice. * * * The reasons given for denying so-called rearing costs are more convincing than the reasons for abstractly applying a rule not suited for the circumstances in this character of case." 69 Ill.Dec. at 173, 447 N.E.2d at 390.

We are of the opinion that the public policy of this state would preclude the granting of rearing costs for a healthy child whose parents have decided to forego the option of adoption and have decided to retain the child as their own with all the joys and benefits that are derived from parenthood. Their decision to forego the option of releasing the child for adoption constitutes most persuasive evidence that the parents consider the benefit of retaining the child to outweigh the economic costs of child rearing. See Public Health Trust v. Brown, 388 So.2d 1084, 1086 (Fla.Dist.Ct.App.1980), pet. den., 399 So.2d *414 1140 (Fla.1981); see also Fassoulas v. Ramey, 450 So.2d 822 (Fla.1984).

In implementing the limited-benefit rule, such parents would be entitled to recover the costs that the overwhelming majority of jurisdictions have allowed. Under this rule, plaintiffs would be entitled to recover the medical expenses of the ineffective sterilization procedure, the medical and hospital costs of the pregnancy, the expense of a subsequent sterilization procedure, loss of wages, loss of consortium to the spouse arising out of the unwanted pregnancy, and medical expenses for prenatal care, delivery, and postnatal care. However, no recovery would be allowable for emotional distress arising out of the birth of a healthy child.

In the event of the birth of a child who suffers from congenital defects, which birth is a result of an unwanted pregnancy arising out of a negligently performed sterilization procedure, we would follow the reasoning of the Supreme Court of Florida. In Fassoulas, the prospective parents, having had two children both of whom had been born with severe congenital abnormalities, sought to prevent the birth of further children through a vasectomy performed upon the husband. 450 So.2d at 822. The vasectomy was unsuccessful, and two children were born, the second with a birth deformity that was corrected. Id. at 822-23. The court went on to deny child-rearing damages for a normal, healthy child, id. at 823-24, but observed that in the case of a physically or a mentally handicapped child, special medical and educational expenses beyond normal rearing costs should be allowed. Id. at 824. The court recognized that the "`financial and emotional drain associated with raising such a child is often overwhelming to the affected parents.'" Id. Therefore, the court held that special costs associated with bringing up a handicapped child would be recoverable. We believe that the reasoning of the Florida court is sound but would add that when a physician is placed on notice, in performing a sterilization procedure, that the parents have a reasonable expectation of giving birth to a physically or a mentally handicapped child or if the physician should be placed on notice, by reason of statistical information of which he/she is or should be aware in the practice of his/her profession, then the entire cost of raising such a child would be within the ambit of recoverable damages. It should also be noted that the extraordinary costs of maintaining a handicapped child would not end when the child reached majority. Nor would the physician's liability necessarily end at that point. Offset against such liability would be any economic benefits derived by the parents from governmental or other agencies that might contribute to defraying the costs of caring for the child or its support in adult life. Also in the event of the birth of a physically—or a mentally—handicapped child, the parents should be entitled to compensation for emotional distress.

The foregoing determinations are made by this court in answer to the second certified question submitted by the Superior Court. The papers in the case may be remanded to the Superior Court for further proceedings.^[2]

*415 BOURCIER, J., with whom FLANDERS, J., joins, concurring in part and dissenting in part.

I concur with my colleagues' response to the first certified question that a cause of action exists when a physician negligently performs a sterilization procedure and the patient subsequently becomes pregnant and a child results from that pregnancy. I dissent, however, from their response to the second certified question regarding the measure of damages available to the unfortunate patient upon whom the doctor's negligence has been visited.

I believe that the true legal nature of the cause of action that we all recognize and acknowledge in this certification proceeding is nothing more and nothing less than a medical malpractice cause of action. As aptly noted in Miller v. Johnson, 231 Va. 177, 343 S.E.2d 301 (1986):

"Under traditional tort principles, it is clear that a physician who performs an abortion or sterilization procedure owes a legal duty to the patient. Where the patient can establish failure to perform the procedure with reasonable care and damages proximately resulting from breach of the duty, she is entitled to recover as in any other medical malpractice action."^[3]Id. 343 S.E.2d at 304.

Accordingly, I would use as a starting premise in determining what measure of damages should be permitted to a victim of medical malpractice negligence the same unquestioned basic common law rule of damages that we have applied in all negligence cases for centuries. We have always permitted the victim of a negligent tortfeasor to recover for all of the injuries and damages that can be proven to have been reasonably foreseeable and proximately caused by the tortfeasor's negligence. Atlantic Tubing & Rubber Co. v. International Engraving Co., 528 F.2d 1272 (1st Cir.), cert. denied, 429 U.S. 817, 97 S.Ct. 60, 50 L.Ed.2d 77 (1976); Hueston v. Narragansett Tennis Club, Inc., 502 A.2d 827 (R.I.1986); Prue v. Goodrich Oil Co., 49 R.I. 120, 140 A. 665 (1928). See also Restatement (Second) Torts § 917 (1979); 1 Minzer, Nates, Kimball, Axelrod and Goldstein, Damages in Tort Actions, chs. 1, 2 (1996); 4 Harper, James, and Gray, The Law of Torts, §§ 20.4, 20.5 at 130-39 (2d ed.1986).

Even though it appears that our recognition here of the plaintiff's cause of action, whether described as an action for "wrongful birth," "wrongful life," or "wrongful conception,"^[4] is relatively new,^[5] the existence of the common law cause of action, trespass on the case, into which it relates and fits and from which it emanates, is centuries old, giving suitable credence to the adage "[t]he genius of the common law is its ability to create and adopt remedies for each new wrong as it occurs." 1 Lee & Lindahl, Modern Tort Law § 1.02 at 4 (rev. ed.1966). In the certified damages question presented to us, we have been requested by the Superior Court trial justice to promulgate the remedy available to *416 a plaintiff in this state in a wrongful conception or wrongful pregnancy action.

I believe that the recovery-damage rule we formulate in response to that certification request should follow as closely as possible our centuries old rule for damages in negligence cases in order to preserve not only stability in the law, but consistency as well, in that rule of damages. It (1) should not discriminate in favor of one class of plaintiffs as against another in negligence malpractice cases, (2) should not discriminate and favor one particular class of medical specialist as against all other medical specialists in medical malpractice cases, (3) should respect and follow the constitutional right of women to decide if they do not want to give birth to a child or children as recognized in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and (4) should ensure that the victim of a medical doctor's negligence will have full and fair "recourse to the laws, for all injuries or wrongs" proximately resulting from that negligence as guaranteed by article 1, section 5, of the Rhode Island Constitution.

I believe the damages rule we should adopt and promulgate for the victim of a physician's negligence in a wrongful conception or wrongful pregnancy negligence case is the rule adopted by the Supreme Judicial Court of Massachusetts in Burke v. Rivo, 406 Mass. 764, 551 N.E.2d 1 (1990), and by the Connecticut Supreme Court in Ochs v. Borrelli, 187 Conn. 253, 445 A.2d 883 (1982). That rule would satisfy all the foregoing considerations that I believe our damages rule should accommodate.

I acknowledge, as do my colleagues, that appellate courts throughout this country that have considered this damage question have been sharply divided with regard to what should be proper compensation for the victim of medical negligence malpractice in the course of a sterilization procedure.

Some courts, the minority, permit the victim of the physician's negligence to recover for all the damages proximately resulting from the physician's negligence, including emotional as well as predicted costs and expenses that will be incurred raising and providing for the unplanned-for child until that child reaches the age of maturity. Some courts deny any recovery for emotional damages or child rearing expenses. Still other courts permit recovery for emotional damages but not for child rearing, and one or possibly two courts deny all damages for the unplanned pregnancy, and birth, save for the recovery of the medical charges paid to the doctor who performed the negligent sterilization procedure and for the hospital expenses incurred in the delivery and the birth of the child. The most balanced and practical number of cases, however, follow the Massachusetts and Connecticut rule and the Restatement (Second) Torts § 920 (1979) which both permit full recovery for all damages proximately resulting from the physician's negligence while also permitting the trial jury to mitigate or reduce any damage award by what may be proven to be the value of the benefit that is conferred upon the plaintiff parent or parents by the birth of the child.

If one were to look for what might be deemed a common element running through most of the cases, it would be that most all agree that the parents of the unplanned-for child are at least entitled to recover the amounts paid by them for the medical charges paid to the negligent physician and for the medical costs and hospital expenses incurred by the mother for the unplanned birth, along with any loss of wages sustained by the mother during her pregnancy. In addition, most courts would also permit the mother to recover for the cost of any corrective sterilization procedure and would permit, in the case of a husband, the husband's right to recover for any loss of consortium sustained during his wife's unplanned pregnancy.

My review of the subject case holdings and the divergent views reflected therein convinces me that the certified question to which we are requested to respond in this case permits us the opportunity to learn from careful examination of the various viewpoints and to promulgate and declare a rule that will borrow only what is both good and reasonable from those earlier reported decisions. *417 Unlike my colleagues, I would not borrow from McKernan v. Aasheim, 102 Wash.2d 411, 687 P.2d 850 (1984). That court denies any recovery to the negligent physician's patient for emotional trauma or child-raising costs although all are certainly directly caused by the physician's tortious negligence. Its reasoning for doing so is simply stated as follows:

"In our view, however, its basic soundness lies in the simple proposition that a parent cannot be said to have been damaged by the birth and rearing of a normal, healthy child * * * it is a matter of universally-shared emotion and sentiment that the intangible but all-important, incalculable but invaluable `benefits' of parenthood far outweigh any of the mere monetary burdens involved. Speaking legally, this may be deemed conclusively presumed by the fact that a prospective parent does not abort or subsequently place the `unwanted' child for adoption." Id. 687 P.2d at 852 (quoting Public Health Trust v. Brown, 388 So.2d 1084, 1085-86 (Fla.Dist.Ct.App.1980)).

That "abort, give away, and get no emotional trauma and child support damages" rule announced by the Washington court, appears, in my opinion, to deny a woman's constitutional right not to have children recognized in Eisenstadt, Griswold and Roe, supra. If a medical doctor's negligence deprives any woman, unmarried or married, of that constitutional right, she ought to be entitled to recover, as do all other victims of medical malpractice, for all her proximately resulting damages and injuries, physical as well as emotional. I perceive of no justification for courts to force a Hobson's choice upon the unfortu