Page:Wilbur v. Kerr, 275 Ark. 239 (1982).pdf/2

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Wilbur v. Kerr
Cite as 275 Ark. 239 (1982)

[275

a vasectomy to prevent having any more children. The appellee negligently performed two unsuccessful vasectomies on Mr. Wilbur. Mr. Wilbur did not know the operations were unsuccessful, and he and his wife had a normal, healthy daughter — a child neither planned nor expected.^[1]

Originally Mr. Wilbur's lawsuit sought other damages besides the expense of raising the child: Mr. Wilbur's medical expenses, pain and suffering, loss of wages and the cost of yet a third vasectomy, damages on behalf of his wife, occasioned by the pregnancy and the birth of the child. The trial court ruled that Mr. Wilbur could claim all of these damages but ruled that the cost of the care, maintenance, support, and education of the child could not be recovered. Mr. Wilbur then amended his request, deleting all damages requested except the expenses for rearing the child, choosing to base his whole lawsuit on that issue.

This is a matter of first impression with us. A lawsuit for the cost of raising an unwanted or unplanned child has been referred to as one for "wrongful birth" or "wrongful conception."^[2] The development of the law by the various states which have dealt with this question is relatively recent but rapid. See 50 CIN. L. REV. 65 (1981). Most states recognize this as a valid cause for action grounded in tort, but the courts disagree on what damages should be allowed. Mason v. Western Pennsylvania Hospital, 428 A. 2d 1366 (1981); Wilczynski v. Goodman, 73 Ill. App. 3d 51, 391 N.E. 2d 479 (1979); Sherlock v. Stillwater Clinic, 260 N.W. 2d 169 (Minn. 1977); Anonymous v. Hospital, 33 Conn. Sup. 126, 366 A. 2d 204(1976); Bowman v. Davis, 48 Ohio St. 2d 41, 356 N.E. 2d 496 (1976); Stills v. Gratton, 55 Cal. App. 3d 698, 127

↑ When the question concerns the birth of an impaired child, the courts treat it differently. See, e.g., Speck v. Finegold, 408 A. 2d 496 (Pa. Super. Ct. 1979); Jacobs v. Theimer, 519 S.W. 2d 846 (Tex. 1975).
↑ The situation varies. Sometimes it is primarily on behalf of the wife who sought a tubal ligation; sometimes it is against a pharmacist who negligently filled a prescription which would prevent conception. See Sard v. Hardy, 34 Md. App. 217, 367 A. 2d 525 (1976), rev'd 281 Md. 432, 379 A. 2d 1014 (1977) (tubal ligation); Troppi v. Scarf, 31 Mich. App. 240, 187 N.W. 2d 511 (1971) (oral contraceptives).

[1] When the question concerns the birth of an impaired child, the courts treat it differently. See, e.g., Speck v. Finegold, 408 A. 2d 496 (Pa. Super. Ct. 1979); Jacobs v. Theimer, 519 S.W. 2d 846 (Tex. 1975).

[2] The situation varies. Sometimes it is primarily on behalf of the wife who sought a tubal ligation; sometimes it is against a pharmacist who negligently filled a prescription which would prevent conception. See Sard v. Hardy, 34 Md. App. 217, 367 A. 2d 525 (1976), rev'd 281 Md. 432, 379 A. 2d 1014 (1977) (tubal ligation); Troppi v. Scarf, 31 Mich. App. 240, 187 N.W. 2d 511 (1971) (oral contraceptives).

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