TURPIN v. SORTINI

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Court of Appeal, Fifth District, California.

Joy TURPIN, a minor, etc., Plaintiff and Appellant, v. Adam J. SORTINI et al., Defendants and Respondents.

Civ. No. 4614.

Decided: May 28, 1981

Joseph P. Stretch, San Francisco, for plaintiff and appellant. Stammer, McKnight, Barnum & Bailey, Daniel O. Jamison, Fresno, for defendants and respondents.

OPINION

Plaintiff, Joy Turpin, a minor, appeals from an order1 of the superior court sustaining the defendants' demurrer to the second cause of action without leave to amend. The other causes of action in the complaint are not before us.2

In the second cause of action the 11-month-old minor purports to allege a cause of action for what has come to be termed “wrongful life” against Adam Sortini, a medical doctor, Fresno Community Hospital, and a nonappearing defendant. In sum the complaint alleges the plaintiff was born August 23, 1977, afflicted with a hereditary total deafness abnormality. It is alleged that defendants were negligent in diagnosing the hereditary hearing defect in plaintiff's elder sister, Hope Turpin, in that they advised the parents that Hope's hearing was within normal limits when in fact she was totally deaf. In reliance on the negligent and improperly performed diagnosis of elder sister Hope, plaintiff's parents conceived plaintiff, Joy Turpin; had the hereditary nature of the hearing defect been known plaintiff would not have been conceived, and thus as a result of defendants' negligence plaintiff, Joy Turpin, has been “deprived of the fundamental right of a child to be born as a whole, functional human being without total deafness, all to her general damages.”

Assuming, as we must, the alleged facts to be true, the sole issue is whether the allegations of the second cause of action of the complaint state a cause of action.

Until the recent departure of the Second District, Division One, represented by the case of Curlender v. Bio-Science Laboratories (1980) 106 Cal.App.3d 811, 165 Cal.Rptr. 477 (per Jefferson (Bernard), P. J.), a long and unbroken line of authority, both in and outside of California, has held that a cause of action for “wrongful life” could not be stated.

After a thorough review of these and other authorities, we reject Curlender as unsound under established principles of law and as a sortie into areas of public policy clearly within the competence of the Legislature. The reasons for changing these principles do not comport with the criteria for changing long-standing rules of law under the standards of Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669; specifically, as will be pointed out, there has been no dramatic shift, indeed no shift, in the weight of authority against allowing recovery, and it cannot be said that the reasons for the rule no longer exist.

Adverting to the case law, we begin with the only other California case dealing with a suit for damages for “wrongful life,” Stills v. Gratton, supra, 55 Cal.App.3d 698, 127 Cal.Rptr. 652. In Stills the court held that a three and one-half year-old minor did not state a cause of action against a doctor by alleging the doctor had negligently caused him to be born illegitimate because the doctor had failed to abort successfully the plaintiff at the request of the mother shortly after conception. Relying upon decisions from the distinguished courts of New York, Illinois and New Jersey, the court noted several reasons for denying recovery. First, the court noted that such a tort had yet to be recognized by any court in any jurisdiction. Second, the court noted that “the issue involved is more theological or philosophical than legal.” (Stills v. Gratton, supra, 55 Cal.App.3d at p. 705, 127 Cal.Rptr. 652.) Third, the court noted that the legal implications of creating such a new tort would be “vast, the social impact could be staggering,” and that new litigation spawned by such recognition would be formidable. Finally, the court noted the difficult and unanswerable problem of measuring damages in such a case: “ ‘This court cannot weigh the value of life with impairments against the nonexistence of life itself. By asserting that he should not have been born, the infant plaintiff makes it logically impossible for a court to measure his alleged damages because of the impossibility of making the comparison required by compensatory remedies.’ ” (Stills v. Gratton, supra, 55 Cal.App.3d at p. 706, 127 Cal.Rptr. 652, citing Gleitman v. Cosgrove (1967) 49 N.J. 22, 28, 227 A.2d 689, 692.) Noting that tort damages serve to compensate a plaintiff for injury caused by a defendant's negligent conduct and are awarded to the extent that a plaintiff can be restored to the position he would have occupied had the tort not occurred, the Stills court rejected the notion that damages should be measured by comparing plaintiff with a child born without handicap or illegitimacy. (Ibid., citing Gleitman v. Cosgrove, supra.).

In Gleitman, the New Jersey high court in comprehensive and articulate detail discussed the difficulty in measuring the value of impaired life against no life. In that case a blind and deaf infant plaintiff sued defendant doctors for negligently failing to timely inform the plaintiff's mother that prenatal rubella could cause defective offspring. The court dismissed the minor's cause of action, holding that the conduct complained of does not give rise to damages cognizable at law. The court said:

“The infant plaintiff is therefore required to say not that he should have been born without defects but that he should not have been born at all. In the language of tort law he says: but for the negligence of defendants, he would not have been born to suffer with an impaired body. In other words, he claims that the conduct of defendants prevented his mother from obtaining an abortion which would have terminated his existence, and that his very life is ‘wrongful.’

“The normal measure of damages in tort actions is compensatory. Damages are measured by comparing the condition plaintiff would have been in, had the defendants not been negligent, with plaintiff's impaired condition as a result of the negligence. The infant plaintiff would have us measure the difference between his life with defects against the utter void of nonexistence, but it is impossible to make such a determination. This Court cannot weigh the value of life with impairments against the nonexistence of life itself. By asserting that he should not have been born, the infant plaintiff makes it logically impossible for a court to measure his alleged damages because of the impossibility of making the comparison required by compensatory remedies. As a recent commentator put the matter:

“ ‘(N)o comparison is possible since were it not for the act of birth the infant would not exist. By his cause of action, the plaintiff cuts from under himself the ground upon which he needs to rely in order to prove his damage.’ Tedeschi, ‘On Tort Liability for ”Wrongful Life,“ ‘ 1 Israel L.Rev. 513, 529 (1966).” (Gleitman v. Cosgrove, supra, 227 A.2d at p. 692.)

Speck v. Finegold (1979) 268 Pa.Super. 342, 408 A.2d 496, 508, arrived at the same result. In that case the plaintiff infant was crippled with hereditary neurofibromatosis. The defendant doctor had negligently performed a vasectomy upon the father who had requested it after deciding that the best interest of his family would be served if no additional children were born bearing the hereditary affliction. The Pennsylvania court stated:

“(I)t is not a matter of taking into consideration the various and convoluted degrees of the imperfection of life. It is rather the improbability of placing the child in a position she would have occupied if the defendants had not been negligent when to do so would make her nonexistent. The remedy afforded an injured party in negligence is intended to place the injured party in the position he would have occupied but for the negligence of the defendant. Thus, a cause of action brought on behalf of an infant seeking recovery for a ‘wrongful life’ on grounds she should not have been born demands a calculation of damages dependent on a comparison between Hobson's choice of life in an impaired state and nonexistence. This the law is incapable of doing.” (Ibid.; fn. omitted.)

Recovery has been denied in part for the same reason in numerous cases. (See Becker v. Schwartz (consolidated with Park v. Chessin) (1978) 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807; Elliott v. Brown (Ala.1978) 361 So.2d 546, 547-548; Stewart v. Long Island College Hospital (1968) 58 Misc.2d 432, 296 N.Y.S.2d 41, 46; Williams v. State (1966) 18 N.Y.2d 481, 276 N.Y.S.2d 885, 223 N.E.2d 343, 344.)

Curlender avoids resolving this fundamental problem of measuring damages, that is, comparing the value of impaired life against no life. Without analysis, the court brushes off the problem by merely observing that the injury “ is the birth of plaintiff with such defect” (106 Cal.App.3d at p. 829, 165 Cal.Rptr. 477) and the conclusional statement “(w)e need not be concerned with the fact that had defendants not been negligent, the plaintiff might not have come into existence at all” (id., at p. 829, 165 Cal.Rptr. 477).

Turning to the issue of public policy, it is explicit that the minor plaintiff herein predicated her right to recover upon an alleged right to be born as a whole, functional human being without defect, alleging specifically she was “deprived of the fundamental right of a child to be born as a whole, functional human being without total deafness, all to her general damages.” Curlender is implicitly grounded upon the same concept. That assumption requires further examination in light of precedent. For sound public policy reasons and concepts of the proper separation of the legislative and judicial powers, courts have rejected such a notion. The reasons are both philosophical and practical.

Running through the cases is the central thought that in a wrongful life context the attempt to quantify the value of human life, whether or not afflicted with a defect, runs counter to the traditional notion of our American heritage which places a special value and premium upon all human life, whether or not the physical or mental condition of the physical being which embodies that life is less than perfect. This principle has been explicated in a number of cases. In Becker v. Schwartz (consolidated with Park v. Chessin), supra, involving a child with Down's Syndrome (in Becker) and a child with polycystic kidney disease (in Park), the court explained, 386 N.E.2d at page 812:

“There is no precedent for recognition at the Appellate Division of ‘the fundamental right of a child to be born as a whole, functional human being’ (60 A.D.2d at p. 88, 400 N.Y.S.2d at p. 114). Surely the use of somewhat similar words in another context affords no such basis. (Cf. Endresz v. Friedberg, 24 N.Y.2d 478, 483, 301 N.Y.S.2d 65, 68, 248 N.Y.S.2d 901, 903, distinguishing Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691.) Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians. Surely the law can assert no competence to resolve the issue, particularly in view of the very nearly uniform high value which the law and mankind has placed on human life, rather than its absence. Not only is there to be found no predicate at common law or in statutory enactment for judicial recognition of the birth of a defective child as an injury to the child; the implications of any such proposition are staggering. Would claims be honored, assuming the breach of an identifiable duty, for less than a perfect birth? And by what standard or by whom would perfection be defined?” (Becker v. Schwartz, supra, 46 N.Y.2d 401, 405, 413 N.Y.S.2d 895, 386 N.E.2d 807, 812.)

The Pennsylvania court expressed a similar idea:

“(T)here is no precedent in appellate judicial pronouncements that holds a child has a fundamental right to be born as a whole, functional human being. Whether it is better to have never been born at all rather than to have been born with serious mental defects is a mystery more properly left to the philosophers and theologians, a mystery which would lead us into the field of metaphysics, beyond the realm of our understanding or ability to solve. The law cannot assert a knowledge which can resolve this inscrutable and enigmatic issue.” (Speck v. Finegold, supra, 408 A.2d at p. 508.)

For similar expressions, see Gleitman v. Cosgrove, supra, 227 A.2d 689, 693; Berman v. Allan (1979) 80 N.J. 421, 404 A.2d 8, 12-13; Williams v. State, supra, 18 N.Y.2d 481, 276 N.Y.S.2d 885, 223 N.E.2d 343, 344; Elliott v. Brown, supra, 361 So.2d 546, 548 (Ala.); Zepeda v. Zepeda (1963) 41 Ill.App.2d 240, 190 N.E.2d 849.

Further, there is justified concern that the recognition of a cause of action in these circumstances would open up enormous new areas of claims, the true nature and extent of which cannot be predicted. This pragmatic consideration, together with philosophical questions which, by their nature, involve broad areas of public policy, create issues with which only the legislative branch is properly equipped to deal. Yet Curlender entirely ignores these expressed concerns, stating simply:

“The reality of the ‘wrongful-life’ concept is that such a plaintiff both exists and suffers, due to the negligence of others. It is neither necessary nor just to retreat into meditation on the mysteries of life.” (Curlender v. Bio-Science Laboratories, supra, 106 Cal.App.3d at p. 829, 165 Cal.Rptr. 477.)

By such a narrow, humanistic approach to an issue laden, as it is, with questions and considerations beyond the judicial ken, Curlender represents at least an unwise jurisprudential example which we decline to follow.3

Curlender concludes that illegitimacy is not an injury. It is, however, not a reality that despite social gains the disadvantage and stigma of being a bastard have far from disappeared? (See Zepeda v. Zepeda, supra, 41 Ill.App.2d 240, 190 N.E.2d 849, 857.) It is not specious to argue that the burden of illegitimacy is a less compensable injury than many physical impairments or defects? Though not justified, may it not in fact be true that an unwanted, illegitimate child, even more than the cared-for although physically handicapped child, is doomed to a life of hardship and social stigma?

Further, recognition in Curlender (see 106 Cal.App.3d at p. 829, 165 Cal.Rptr. 477) of a cause of action in minors to sue their parents for genetic defects has implications involving transcendent public policy questions impinging upon intimate and sensitive family relationships into which the court should not intrude. The right of parents to make a decision to take the risk of having offspring with a defect rather than to live childless, for example, should not be tampered with by judicial intermeddling.

Neither this cause of action nor the one at issue in Curlender is a necessary or even logical extension of Roe v. Wade (1973) 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (legalizing abortions under certain restricted circumstances), upon which Curlender relies. There is nothing whatsoever in Roe v. Wade intimating that the Wade court had the intention of conferring a substantive right to sue theretofore nonexistent.

If any decision requires the wise deliberation and painstaking investigation that only the Legislature can give, the determination that impaired but living children should be enabled to sue for the injury of birth is such a decision. Accordingly, the issue here could better be left to legislative determination.4

The trial court is directed to enter a judgment of dismissal as of the earliest date it could have been entered, and the judgment is affirmed.

I respectfully dissent.

The majority relies on several theories for denying recovery: (1) other than Curlender v. Bio-Science Laboratories (1980) 106 Cal.App.3d 811, 165 Cal.Rptr. 477, precedent is against the cause of action; (2) damages are difficult to measure; (3) the law is incapable of stating that an imperfect life is worse than no life at all; (4) the recognition of the tort would open up enormous new areas of claims; and (5) the courts should defer to the Legislature. These arguments do not withstand examination.

LACK OF PRECEDENT

Litigation in this area is new. None of the cases cited by the majority is even twenty years old. Although deference should be accorded decisions of other jurisdictions, they should be followed only if consonant with California law.

In California, at least, the burden is not on the plaintiff to bring herself within some new principle of law. The opposite is the case. Civil Code section 1714 provides in part: “Every one is responsible for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, ” Thus it is seen that the burden is on a defendant to create some exemption or immunity from responsibility for his negligent act, otherwise the plaintiff recovers.

As said by Justice Peters in Rowland v. Christian (1968) 69 Cal.2d 108, 112-113, 70 Cal.Rptr. 97, 443 P.2d 561:

“Although it is true that some exceptions have been made to the general principle that a person is liable for injuries caused by his failure to exercise reasonable care in the circumstances, it is clear that in the absence of statutory provision declaring an exception to the fundamental principle enunciated by section 1714 of the Civil Code, no such exception should be made unless clearly supported by public policy. (Lipman v. Brisbane Elementary School Dist., 55 Cal.2d 224, 229-230, 11 Cal.Rptr. 97, 359 P.2d 465 ; Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 213 et seq., 11 Cal.Rptr. 89, 359 P.2d 457 ; Malloy v. Fong, 37 Cal.2d 356, 366, 232 P.2d 241 )

“A departure from this fundamental principle involves the balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved ”

Of the factors listed above which may create a public policy denying recovery, the only one mentioned by the majority in the case before us is the extent of the burden to the defendant and the consequences to the community. I will deal with that later.

Stills v. Gratton (1976) 55 Cal.App.3d 698, 127 Cal.Rptr. 652, contains language which gives comfort to the defendants. But the case is dissimilar from the instant case. In Stills, the child “was and is a healthy, happy youngster who is a joy to his mother.” (Id., at p. 705, 127 Cal.Rptr. 652.) His only disability was illegitimacy. In view of social mores as they existed in the 1970's, any damages would be highly speculative.

Stills is weak authority, if it is precedent at all, for departing from established California law that imposes liability on negligent tortfeasors absent some overriding public policy.

DAMAGES ARE DIFFICULT TO MEASURE

There appears to be a concession that the parents of Joy are entitled to recover their special damages including extraordinary expenses which will be incurred on the child's behalf by virtue of her total deafness. Indeed, a broader statement of loss would have been possible. (Custodio v. Bauer (1967) 251 Cal.App.2d 303, 59 Cal.Rptr. 463.)

Presumably, these damages will be cut off at age 18. Who takes over then, the taxpayer? If the parents, either out of a sense of paternal duty, or because of the mandate of Civil Code section 206 continue to assist the plaintiff after her 18th birthday, what happens when they die? Or if by reason of accident or misfortune they have no ability to support her?1

I am willing to concede that it is difficult “to weigh the value of life with impairments against the nonexistence of life itself,” and agree that it should not be attempted. But if it is appropriate to award the parents special damages for the extra cost of living incurred because of a loss of hearing, why should not the child have a recovery measured by the same criteria for her life after she attains majority?

In deciding against conceiving a child who might be genetically defective the parents may be as concerned for the child's difficult life as an adult as for their own expenses during the child's minority.

This is not the first area of the law where defendants have sought to avoid liability on the ground that damages are difficult to measure. The most obvious one is damages for mental suffering. The arguments have been summarized in Prosser on Torts (4th ed. 1971) section 54, page 327:

“ it is said that mental disturbance cannot be measured in terms of money, and so cannot serve in itself as a basis for the action; that its physical consequences are too remote, and so not ‘proximately caused;’ that there is a lack of precedent, and that a vast increase in litigation would follow. All these objections have been demolished many times, and it is threshing old straw to deal with them ” (Fns. omitted.)

The arguments advanced by the defendants here sound strikingly similar to those advanced for denying recovery for emotional distress. Unfortunately for this plaintiff, they are not yet old enough to be dismissed as “old straw.”

THE LAW IS INCAPABLE OF STATING THAT AN IMPERFECT LIFE IS WORSE THAN NO LIFE AT ALL

The argument is reminiscent of those raised against recovery by parents for wrongful life. Those arguments were raised and dealt with in Custodio v. Bauer, supra, 251 Cal.App.2d 303, 59 Cal.Rptr. 463. As against the argument that it was contrary to public policy to require a negligent physician to pay for the joy of raising a healthy child, the Custodio court pointed out that the cause of action is not for birth of the child, but for the financial loss that is occasioned by the child's birth.

It is a diversion to pontificate about the inherent value of life in our society. No one is suggesting that the plaintiff's life does not have value. The question before the court is whether she will be equipped to meet life on some sort of an equal basis.

I, for one, cannot say that she will be more emotionally upset if she faces life at majority without any economic assets which are hers as a matter of right, or whether she would have a happier and more well adjusted life if she had the wherewithal to compete with people possessed of all their faculties on their terms and without favor or charity.

RECOGNITION OF THE TORT WOULD OPEN UP ENORMOUS NEW AREAS OF CLAIMS

This argument, too, falls under the weight of experience. In reference to the argument that recognition of damages for emotional disturbance would open a Pandora's Box, Dean Prosser had this to say: “It is the business of the courts to make precedent where a wrong calls for redress, even if lawsuits must be multiplied, and by this time there is precedent enough, and no such increase in litigation is to be observed.” (Prosser on Torts, supra, at p. 328.)

Presumably, causes of action by children for wrongful birth would be coupled with that of their parents. It is difficult to see how this would cause such a strain on the system or the defendants that these plaintiffs should be singled out for special and discriminatory treatment.

JUDICIAL RESTRAINT IN DEFERENCE TO THE LEGISLATURE

This argument is really out of vogue. First, the Legislature has spoken in Civil Code section 1714. Second, the concept that changes should come from the Legislature is not in good repute. (See People v. Drew (1978) 22 Cal.3d 333, 149 Cal.Rptr. 275, 583 P.2d 1318 M'Naghten test overturned; Serrano v. Priest (1977) 20 Cal.3d 25, 141 Cal.Rptr. 315, 569 P.2d 1303 “private attorney general” doctrine; Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 adoption of rule of comparative negligence; Rodriguez v. Bethlehem Steel Corp (1974) 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669 spousal action for loss of consortium; Rowland v. Christian, supra, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 termination of distinctions between trespasses, licensees and invitees in order to make the owner of land liable for his negligence; Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 strict liability against manufacturers; Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457 abrogation of the law of governmental immunity; Silva v. Providence Hospital of Oakland (1939) 14 Cal.2d 762, 97 P.2d 798 overruling the doctrine of charitable immunity; Scott v. McPheeters (1939) 33 Cal.App.2d 629, 92 P.2d 678, 93 P.2d 562 child may sue for prenatal injury.) The list could be expanded effortlessly.

Prosser on Torts, supra, at pages 3-4, puts it this way:

“New and nameless torts are being recognized constantly, and the progress of the common law is marked by many cases of first impression, in which the court has struck out boldly to create a new cause of action, where none had been recognized before. The intentional infliction of mental suffering, the obstruction of the plaintiff's right to go where he likes, the invasion of his right of privacy, the denial of his right to vote, the conveyance of land to defeat a title, the infliction of prenatal injuries, the alienation of the affections of a parent, and injury to man's reputation by entering him in a rigged television contest, to name only a few instances, could not be fitted into any accepted classifications when they first arose, but nevertheless have been held to be torts. The law of torts is anything but static, and the limits of its development are never set. When it becomes clear that the plaintiff's interests are entitled to legal protection against the conduct of the defendant, the mere fact that the claim is novel will not of itself operate as a bar to the remedy.” (Fns. omitted.)

The courts have a special responsibility to reshape, refine and guide legal doctrine which it has created. (People v. Drew, supra, 22 Cal.3d 333, 347, 149 Cal.Rptr. 275, 583 P.2d 1318.) The courts blazed new ground without the aid of the Legislature when they recognized that the parents have a cause of action for wrongful birth. We should round out that concept by giving like relief to the child.

The majority raises the specter of children suing their parents, and indeed such was suggested in Curlender. I would not have gone so far. There is a good public policy argument favoring the state leaving to its citizens the question of when a couple should procreate. There is no public policy favoring medical malpractice.

I would reverse.

FOOTNOTES

1.  The record contains no reference to the entry of a judgment of dismissal. The order sustaining a demurrer is nonappealable. In the interest of judicial economy we will direct the entry of a judgment of dismissal of the second cause of action nunc pro tunc and will treat the appeal as if it is from the judgment.

2.  Plaintiff's parents, James and Joy Turpin, did not appeal from the court's order sustaining the demurrer to the fourth cause of action without leave to amend. We do note that there remains before the trial court a cause of action alleged by the parents for special damages and extraordinary medical expenses which have been and will be incurred on behalf of the minor, Joy Turpin. The cause of action is authorized by Stills v. Gratton (1976) 55 Cal.App.3d 698, 127 Cal.Rptr. 652, and is not challenged on this appeal. Contrary to the implication of the dissent, the allowance of a parental cause of action for special damages is totally consistent with established principles of damages.

3.  Certain unanswerable questions point up the unmanageable proportions of the problems created if such a cause of action is judicially recognized. For example, what degree of injury, impaired condition or defect will be recognized as authorizing recovery? If one is not born perfect, what condition less than perfect will be recognized as cognizable injury or defect? It is obviously a question of degree as all human beings have some imperfections. Would partial deafness in one ear or poor vision qualify? Will crossed or cocked eyes, a large, uncorrectable, disfiguring, discolored, facial birthmark or a cleft palate be so recognized? What about an albino?

4.  The dissent expresses the view that judicial restraint in deference to the Legislature is out of vogue. Though some inroads have been made upon the doctrine, we believe that in an appropriate case, such as this one, those principles and the constitutional doctrine of separation of powers upon which it is grounded are viable concepts which should and will be followed.

1.  Footnote 3 of the majority opinion conjures up the specter of lawsuits being instituted for minor deformities. The economics of litigation and the common sense of juries are answers to that. But it should be remembered that some birth defects of children conceived as a proximate result of negligent advice given prospective parents are disastrous. (A reading of the cases in this area is depressing one child has Down's Syndrome, commonly known as mongolism; another neurofibromatosis, which can be particularly crippling and disfiguring; etc.) I am writing for those cases too, as well as the instant case, where the plaintiff may be enough of a genius, and have sufficient tutoring, to Helen Keller-like rise above her handicap.

GEO. A. BROWN, Presiding Justice.

PAULINE DAVIS HANSON, J., concurs.

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