HASELTON, C.J.
Plaintiffs Kerry and Scott Tomlinson (the Tomlinsons) and their son, Edward Tomlinson (Teddy), through his mother as guardian ad litem, appeal a judgment dismissing their claims for negligence against defendants Metropolitan Pediatrics, LLC, and Mary K. Wagner, M.D. (collectively Metropolitan) and Legacy Emanuel Hospital & Health Center (Legacy), medical service providers for the Tomlinsons' older son Emanuel Tomlinson (Manny). In those claims, the Tomlinsons and Teddy each alleged that they suffered economic and noneconomic damages because defendants breached the professional standard of care that they owed to Manny by, inter alia, failing to diagnose him with a genetic condition and inform the Tomlinsons of that condition and their reproductive risks and, as a foreseeable result of that breach, the Tomlinsons, without that knowledge, conceived and bore Teddy—who suffers from the same genetic condition.
On appeal, plaintiffs contend that the trial court erred in granting defendants' motions to dismiss for failure to state a claim under ORCP 21 A(8) on the grounds that (1) no physician-patient relationship existed between plaintiffs and defendants; (2) the Tomlinsons' claim for "wrongful birth" and Teddy's claim for "wrongful life" are not cognizable in Oregon; and (3) the Tomlinsons failed to allege a physical injury or other legally protected interest as a basis for their recovery of noneconomic damages. Defendants cross-assign error to the trial court's denial of Legacy's motions to dismiss under ORCP 21 A(9) on the ground that the action was barred by the statute of limitations and statute of repose and the court's failure to grant defendants' motions to strike allegations in the complaint under ORCP 21 E and to make the complaint more definite and certain under ORCP 21 D on the ground that those motions were "moot" in light of its dismissal of plaintiffs' claims.
For the reasons that follow, we conclude that the trial court (1) erred in granting the motion to dismiss the Tomlinsons' claim because, under established negligence principles in Oregon, they stated a claim for relief, but (2) properly granted the motion to dismiss Teddy's claim because he failed to allege legally cognizable damages. We also reject without further written discussion defendants' cross-assignments of error concerning their motions to dismiss on statute of limitations and repose grounds. Accordingly, we reverse and remand the Tomlinsons' negligence claim—a disposition that, in this procedural posture requires the trial court to consider, in the first instance, defendants' motions to strike and to make the Tomlinsons' claim more definite and certain—but otherwise affirm.
Plaintiffs' operative amended complaint alleged the following material facts:
The Tomlinsons have two children, Manny, who was born in 2003, and Teddy, who was born in 2008. Shortly after his birth, Manny "began to exhibit developmental abnormalities and symptoms of serious illness." The Tomlinsons "actively sought medical advice" from defendants, and "relied on the defendants * * * to exercise reasonable care, skill and diligence on their behalf."
In the meantime—"while ignorant of the cause of their son Manny's developmental abnormalities"—the Tomlinsons conceived Teddy, who was born on November 12, 2008. Following Manny's diagnosis in 2010, "the Tomlinsons had Teddy tested." He "also has [DMD], and will suffer the same fate as his brother[.]"
Against that factual backdrop, plaintiffs alleged that defendants were negligent.
With regard to their claim, the Tomlinsons further alleged that, "[a]s a direct and foreseeable result of the negligence set forth * * * above, plaintiffs unknowingly conceived and bore a child with a severe genetic defect" and "[h]ad defendants, and each of them, timely diagnosed Manny's DMD, plaintiffs would not have produced another child suffering from [DMD]." Each of the Tomlinsons sought noneconomic damages of $5 million, alleging that each "has suffered and will
With regard to his claim, Teddy, in addition to the preceding allegations, alleged:
Further, Teddy alleged that he was entitled to damages for lost future earning capacity and over $2 million in damages for "extraordinary costs" that he will incur "upon reaching the age of majority and for the remainder of his anticipated lifetime thereafter" for "the medical care, education and support [that] he will require on account of his genetic condition[.]"
Defendants filed 19 motions challenging the sufficiency of plaintiffs' complaint. As pertinent to the issues raised on appeal, those motions fell into three discrete categories: (1) motions to dismiss for failure to state a claim under ORCP 21 A(8); (2) motions to dismiss under ORCP 21 A(9) on the ground that the action was barred under the statute of limitations and statute of repose; and (3) motions to strike under ORCP 21 E and motions to make the complaint more definite and certain under ORCP 21 D.
The narrative and analysis that follows pertains solely to the motions to dismiss the Tomlinsons' and Teddy's negligence claims. That is so because, as noted, we have already rejected without discussion defendants' cross-assignments pertaining to the second category of motions, see 275 Or.App. at 660, 366 P.3d at 373, and our disposition as to the Tomlinsons' negligence claim requires that the trial court consider, in the first instance, the third category of motions that are the subject of defendants' remaining cross-assignments, see 275 Or.App. at 660, 366 P.3d at 373. Before turning to those motions, however, we briefly address an issue of terminology and approach so as to provide context for the parties' specific contentions.
The Tomlinsons' and Teddy's claims correspond, respectively, to what many other courts have denominated "wrongful birth" and "wrongful life" claims. In general terms, "wrongful birth" refers to "the cause of action of parents who claim that negligent advice or treatment by the defendant deprived them of the choice of avoiding conception or of terminating the pregnancy usually because of some genetic disability of the child." Gerald W. Boston ed., 2 Stein on Personal Injury Damages § 12:3 (3d ed. 1997); see id. ("[T]he term `wrongful birth' is limited by most courts to the parents' action in connection with the birth of a child with a disability, and the term `wrongful pregnancy' or `wrongful conception' is used for the parents' action in connection with the birth of a normal and healthy (but unplanned) child."). Relatedly, "wrongful life" refers to "a cause of action brought by or on behalf of a child with an impairment who claims that but for the defendant's negligence, the child would not have been born." Id. In this opinion, we eschew the use of
With that understanding in mind, we turn to defendants' contentions underlying their motions to dismiss for failure to state a claim under ORCP 21 A(8). Specifically, defendants advanced three alternative, but related, contentions in support of those motions.
First, defendants contended that, because plaintiffs failed to allege the existence of a physician-patient relationship between defendants and themselves, they failed to state claims for relief Defendants asserted that, in a medical malpractice case, a physician-patient relationship must exist between defendants and plaintiffs. See, e.g., Mead v. Legacy Health System, 352 Or. 267, 276, 283 P.3d 904 (2012) ("In Oregon, as in most states, a physician-patient relationship is a necessary predicate to stating a medical malpractice claim."). According to defendants, because plaintiffs' claims are predicated on alleged medical negligence in the care and treatment of Manny—defendants' patient—the alleged duties were owed to Manny and not to plaintiffs. In other words, defendants essentially contended that nonpatients are categorically precluded from stating a negligence claim based on allegations that a physician's breach of the standard of care in the context of a physician-patient relationship foreseeably caused harm to third parties.
Second, although acknowledging that, in Zehr v. Haugen, 318 Or. 647, 871 P.2d 1006 (1994), the Supreme Court recognized a claim for "wrongful pregnancy," defendants contended that the Tomlinsons' claim for "wrongful birth" and Teddy's claim for "wrongful life" are not cognizable in Oregon. Specifically, and as pertinent to the issues on appeal, defendants asserted that their alleged conduct did not cause Teddy's genetic condition. Further, defendants asserted that, in the absence of any allegation of treatment, consultation, or reproductive or genetic counseling or screening, the injuries alleged in plaintiffs' complaint—Teddy's birth and his life with DMD—were not caused by defendants' alleged conduct pertaining to the timeliness of Manny's diagnosis.
Defendants also contended that Teddy's claim is not cognizable because he has not "identif[ied] a legal injury measurable in damages." According to defendants, Teddy alleged that he has been damaged by the fact of his existence. Significantly, defendants asserted that "life" has not been recognized in Oregon as a compensable harm. Further, defendants posited that any damage that Teddy suffered is immeasurable because it is impossible to calculate damages based on a comparison between the value of Teddy's nonexistence and the value of his life with DMD.
Third, defendants contended that plaintiffs' allegations are legally insufficient to support their request for noneconomic damages. Specifically, defendants contended that plaintiffs failed to allege a physical injury or an invasion of a legally protected interest under Oregon law, which is generally required for the recovery of noneconomic damages for emotional distress. See Paul v. Providence Health System-Oregon, 351 Or. 587, 597, 273 P.3d 106 (2012) (stating that the Supreme Court "consistently has rejected claims for emotional distress damages caused by a defendant's negligence, in the absence of any physical injury"); id. at 597-98, 273 P.3d 106 (noting an exception to the physical-injury rule "where the defendant's conduct infringed on some legally protected interest apart from causing the claimed distress, even when that conduct was only negligent" (internal quotation marks omitted)).
Legacy further contended that, because the Tomlinsons cannot recover noneconomic
Plaintiffs remonstrated that they have stated legally cognizable claims. Specifically, in response to defendants' contentions, they advanced three alternative but related contentions of their own, each of which we describe in turn.
First, although plaintiffs conceded that "a physician's duty to exercise reasonable care arises out of the physician-patient relationship" and that a physician-patient relationship did not exist between defendants and themselves, they contended that such a relationship is not a necessary prerequisite for stating a negligence claim. Instead, plaintiffs asserted that a physician-patient relationship existed between defendants and Manny that gave rise to defendants' duty to exercise reasonable care in their treatment of him—an assertion that defendants do not dispute. Plaintiffs further asserted that Oregon law "recognizes that a health care provider's breach of the duty to exercise reasonable care * * * can cause foreseeable harm to individuals who are not the `patient.'" See, e.g., Zehr, 318 Or. 647, 871 P.2d 1006 (recognizing claim for negligently performed tubal ligation brought by husband and wife); Zavalas v. Dept. of Corrections, 124 Or.App. 166, 173, 861 P.2d 1026 (1993), rev. den., 319 Or. 150, 877 P.2d 86 (1994) (rejecting "defendant's position that under no circumstances can a physician ever be liable to a nonpatient third party"). According to plaintiffs,
Second, relying on Zehr and cases from other jurisdictions, plaintiffs contended that application of basic negligence principles demonstrated that their claims are cognizable in Oregon. They explained that the Tomlinsons had an important interest in making "informed choices regarding their future and family" and that the labels of "wrongful birth" and "wrongful life" obscure the proper analysis because
(Quoting Viccaro v. Milunsky, 406 Mass. 777, 779 n. 3, 551 N.E.2d 8, 9 n. 3 (1990).)
Further, as to Teddy's claim, plaintiffs noted that "defendants set in motion a series of events which led to Teddy being born
Third, plaintiffs contended that the Tomlinsons' recoverable damages included noneconomic damages for emotional distress for either or both of two reasons: (1) The allegations concerning "the process of bearing, rearing and caring for a severely disabled child involve[] a `physical impact'";
The trial court granted defendants' motions to dismiss under ORCP 21 A(8) for failure to state a claim. The court's primary rationale was that plaintiffs failed to allege the existence of a physician-patient relationship between defendants and themselves. Specifically, the court reasoned that, in light of the "medical negligence case law developed in this jurisdiction" and the reasoning in Mead, "to survive dismissal, a complaint must include an allegation of a professional relationship between a physician and patient in a medical malpractice case." As the court explained, in this case, "[a]ll parties * * * agree that none of the plaintiffs is, or was, a patient of defendants."
In addition to its primary rationale, the court advanced alternative reasons that the Tomlinsons and Teddy had each failed to otherwise allege legally cognizable negligence claims. With regard to the Tomlinsons' claim, the court noted that "the pleading lacks any claim that [the Tomlinsons] treated with, or relied upon, the advice of [defendants] in deciding whether to conceive a second child. In this regard, this case differs from other so-called wrongful birth cases that have come before the court in which such reliance has been pled." Further, the court dismissed the request for emotional distress damages because "[n]o physical impact or duty to plaintiffs to avoid emotional harm has been alleged."
As to Teddy's claim, the court reasoned that a "wrongful life" claim is not cognizable in Oregon. Specifically, the court explained that "there is no yardstick by which to measure his damages" and that it "agree[d] with the reasoning of those courts [that] have examined such causes of action and conclude[d] that the viability of such claims is better left to policy-makers than to judges and juries."
On appeal of the resulting judgment, plaintiffs assign error to the trial court's dismissal of their claims, essentially reiterating the contentions that they raised before the trial court. We begin by addressing the trial court's primary rationale for dismissing plaintiffs' claims—viz., the lack of a physician-patient relationship between defendants and plaintiffs—which, if correct, would be dispositive as to both the Tomlinsons' and Teddy's claims and would obviate the need to address the parties' other contentions. However, because we conclude that such a relationship is not a necessary prerequisite, we then proceed to address the trial court's alternative reasons for dismissal.
In reviewing a trial court's dismissal under ORCP 21 A(8), "we accept as true all well-pleaded
Whether such a relationship is required turns on whether nonpatients who allege that they were foreseeably harmed as a result of a physician's breach of a standard of care are categorically foreclosed from asserting a negligence claim against the physician. Consistently with defendants' contentions, the trial court concluded that, because plaintiffs had not alleged a physician-patient relationship between defendants and themselves, they could not state a negligence claim under the circumstances alleged here. For the reasons that follow, we conclude that the trial court's conclusion was erroneous.
"[U]nder Oregon common law, a person whose negligent conduct unreasonably creates a foreseeable risk of harm to others and causes injury to another ordinarily is liable in damages for that injury." Harris v. Suniga, 344 Or. 301, 307, 180 P.3d 12 (2008). As the Supreme Court explained in Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 17, 734 P.2d 1326 (1987),
In applying that principle, "we generally analyze a defendant's liability for harm that the defendant's conduct causes another in terms of the concept of `reasonable foreseeability' rather than the more traditional `duty of care'"; however, "if the plaintiff invokes a special status, relationship, or standard of conduct, then that relationship may create, define, or limit the defendant's duty to the plaintiff[.]" Stewart v. Kids Incorporated of Dallas, OR, 245 Or.App. 267, 275, 261 P.3d 1272 (2011), rev. dismissed as improvidently allowed, 353 Or. 104, 295 P.3d 51 (2012) (some internal quotation marks and citations omitted).
In dismissing plaintiffs' claims, the trial court necessarily accepted the fundamental principle underlying defendants' contrary contentions—viz., that nonpatients are precluded from stating a negligence claim based on allegations that they were foreseeably harmed by a physician's breach of a professional standard of care owed to a patient that requires the physician to exercise care on behalf of nonpatients. As we explain, however, Mead—the case on which the trial court principally relied—does not support the trial court's conclusion.
In Mead, "[a]n emergency room doctor telephoned defendant (an on-call neurosurgeon) to ask his advice about plaintiff, who had come into the emergency room for treatment." 352 Or. at 269, 283 P.3d 904. The plaintiff filed a negligence claim against the neurosurgeon that "rested on the premise that, as a result of the telephone call defendant received * * *, defendant had entered into a physician-patient relationship with plaintiff and, as a result, owed her a duty of due care." Id. at 271, 283 P.3d 904. Under those circumstances and in the course of upholding the trial court's denial of the plaintiff's motion for a directed verdict, the Supreme Court stated the principle on which the trial court and defendants relied in this case:
Mead, 352 Or. at 276, 283 P.3d 904 (brackets in Mead; emphasis added).
Thus, the issue in Mead was whether the plaintiff—whose negligence claim was premised on the existence of a physician-patient relationship—had demonstrated the existence of that relationship. Although the court noted that "a physician-patient relationship is a necessary predicate to stating a medical malpractice claim," the court did not hold that a plaintiff is categorically precluded from stating a negligence claim against a physician where the professional standard of care owed to a patient requires the physician to exercise care on behalf of nonpatients. That is so because, under the circumstances in Mead, the Supreme Court had no reason to—and did not—address the cognizability of such a claim.
However, we have effectively already considered and answered that question. In Zavalas, we held that the absence of a physician-patient relationship did not preclude nonpatients from recovering in negligence against the physician.
In Zavalas, the defendant physician prescribed medication for a patient who was later involved in an auto accident. The plaintiffs—the representatives of the children who died or were injured in the accident and the parents of the injured children—brought a negligence action against the physician, alleging that the physician "was negligent in prescribing Xanax to [the patient] when she presented symptoms of `psychotic illness, depression, chronic bipolar mental disorder and chronic drug use,' and in authorizing the refill of that prescription." 124 Or.App. at 170, 861 P.2d 1026. The physician in Zavalas asserted that "an entire category of claimants—nonpatients—is prohibited from recovering against a physician for alleged acts of negligence in treating a patient." Id. at 171, 861 P.2d 1026. In asserting that "`no duty' defense," the physician in Zavalas contended that, as a matter of law, "a physician has no duty to third parties and, therefore, * * * a physician is shielded from liability to third parties who claim that the physician's negligent treatment of a patient was the foreseeable cause of their harm." Id. We rejected the physician's contention that "under no circumstances can a physician ever be liable to a nonpatient third party." Id.; see also Delaney v. Clifton, 180 Or.App. 119, 124, 41 P.3d 1099, rev. den., 334 Or. 631, 54 P.3d 1041 (2002) ("To be sure, the court in Zavalas held that professionals are not entitled to the benefit of an across-the-board `no duty' rule merely because they are not in privity with those whom their negligent conduct affects."); Docken v. Ciba-Geigy, 86 Or.App. 277, 739 P.2d 591, rev. den., 304 Or. 405, 745 P.2d 1225 (1987) (physician's failure to warn of the dangers of a prescription drug extended
Here, as noted, 275 Or.App. at 664-65, 366 P.3d at 375-76, defendants contend that a physician-patient relationship between themselves and plaintiffs is a necessary prerequisite to stating a negligence claim. That contention is materially indistinguishable from the "no duty" rule that we rejected in Zavalas. For that reason, the trial court erred in dismissing plaintiffs' claims on the ground that plaintiffs failed to allege a physician-patient relationship between defendants and themselves.
Accordingly, we turn to the trial court's alternative reasons for dismissing plaintiffs' claims. In doing so, we address the Tomlinsons' and Teddy's claims separately because each claim implicates different legal principles. Ultimately, as amplified below, we conclude that, although the Tomlinsons stated a legally sufficient negligence claim, Teddy did not.
The trial court articulated two additional reasons that the Tomlinsons had failed to state a claim. First, the court concluded that the Tomlinsons had failed to allege that defendants caused their injury. Specifically, the court stated that
Second, the court concluded that "[n]o physical impact or duty to plaintiffs to avoid emotional harm has been alleged" to support the Tomlinsons' request for emotional distress damages. We turn first to the adequacy of the Tomlinsons' allegations pertaining to causation.
To survive a motion to dismiss a negligence claim, a complaint
Solberg v. Johnson, 306 Or. 484, 490-91,760 P.2d 867 (1988) (emphasis added). Defendants' motions to dismiss in this case implicated
To be sure, the Tomlinsons do not allege that defendants' negligence caused Teddy's genetic condition, nor could they. Rather, they posit a construct of causation predicated on the following interlocking premises: (1) Although no physician-patient relationship existed between defendants and plaintiffs, a physician-patient relationship existed between defendants and Manny. (2) That relationship, in turn, gave rise to a professional standard of care. (3) Defendants breached that standard of care by, inter alia, failing to diagnose Manny with a genetic condition and failing to inform the Tomlinsons of his condition and "to advise and counsel the [Tomlinsons] at any time before Teddy was conceived that there was a fifty percent likelihood that another male child born to them would also suffer from [DMD]." (4) As a foreseeable result of that breach, the Tomlinsons "unknowingly conceived and bore" Teddy—who has the same genetic condition. (5) Thus, but for defendants' failure to timely diagnose Manny with DMD and inform the Tomlinsons of his condition and advise them of the reproductive consequences of that diagnosis, the Tomlinsons "would not have produced another child suffering from [DMD]."
The trial court concluded that those allegations collectively were legally insufficient to allege that defendants' conduct caused the Tomlinsons' harm. Specifically, the court noted that the circumstances of this case are materially distinguishable from cases in other jurisdictions on which the Tomlinsons relied to support the viability of their claim—viz., several cases that involved circumstances in which, according to the Tomlinsons, "medical care providers had the opportunity yet failed to diagnose the congenital or hereditary nature of an older child's ailment before the parents unknowingly conceived and bore a second child suffering from the same genetic condition."
With due appreciation of the trial court's careful consideration, we disagree. For the following reasons, we conclude that, despite the absence of affirmative allegations of reliance, the Tomlinsons have sufficiently alleged that defendants' conduct was the cause of their harm.
In a negligence action, a plaintiff must "prove an actual causal link between the defendant's conduct and the plaintiff's harm—that is, the plaintiff must prove `cause in fact.'" Towe v. Sacagawea, Inc., 357 Or. 74, 87, 347 P.3d 766 (2015) (quoting Oregon Steel Mills, 336 Or. at 340, 83 P.3d 322); see Joshi v. Providence Health System, 198 Or.App. 535, 538-39, 108 P.3d 1195 (2005), aff'd, 342 Or. 152, 149 P.3d 1164 (2006) ("`Cause-in-fact' * * * has a well-defined legal meaning: it generally requires evidence of a reasonable probability that, but for the defendant's negligence, the plaintiff would not have been harmed."). As the court explained in Towe, "[c]ausation is an assessment of whether a particular act or omission in fact resulted in the particular harm that a plaintiff suffered—it turns on `what retrospectively did happen.'" Id. (quoting Fazzolari, 303 Or. at 13, 734 P.2d 1326 (emphasis in Towe)).
Here, the Tomlinsons alleged that, but for defendants' failure to diagnose Manny with DMD and inform them of his condition and their reproductive risks, they "would not
Generally, the Supreme Court "consistently has rejected claims for emotional distress damages caused by a defendant's negligence, in the absence of any physical injury." Paul, 351 Or. at 597, 273 P.3d 106; see also Hammond v. Central Lane Communications Center, 312 Or. 17, 23, 816 P.2d 593 (1991) ("[W]e have not yet extended liability for ordinary negligence to solely psychic or emotional injury not accompanying any actual or threatened physical harm or any injury to another legally protected interest.'" (Quoting Norwest v. Presbyterian Intercommunity Hosp., 293 Or. 543, 558-59, 652 P.2d 318 (1982).)). "At a minimum, the physical impact rule requires an act or omission that results in some perceptible physical effect on a plaintiff." Chouinard v. Health Ventures, 179 Or.App. 507, 515, 39 P.3d 951 (2002). "[T]he fact that a defendant's negligence poses a threat of future physical harm is not sufficient, standing alone, to constitute an actionable injury." Lowe v. Philip Morris USA, Inc., 344 Or. 403, 410, 183 P.3d 181 (2008).
However, there are limited exceptions to the physical impact rule. As pertinent here, a plaintiff may recover for purely psychic injury "where the defendant's conduct infringed on some legally protected interest apart from causing the claimed distress * * *." Hammond, 312 Or. at 23, 816 P.2d 593 (emphasis added); see also Phillips v. Lincoln County School District, 161 Or.App. 429, 432-33, 984 P.2d 947 (1999) ("[T]he term `legally protected interest' refers to an independent basis of liability separate from the general duty to avoid foreseeable risk of harm."); Curtis v. MRI Imaging Services II, 148 Or.App. 607, 612-18, 941 P.2d 602 (1997), aff'd on other grounds, 327 Or. 9, 956 P.2d 960 (1998) (canvassing Oregon case law that carved out exceptions to the physical impact rule).
As noted, 275 Or.App. at 663, 366 P.3d at 374-75, Kerry and Scott Tomlinson each sought noneconomic damages in the amount of $5 million. They alleged that, "[a]s a direct and foreseeable result of" defendants'
To the extent that the Tomlinsons contend that those allegations are sufficient to bring them within the scope of the physical impact rule, we disagree. The physical impact rule requires "some perceptible physical effect on a plaintiff." Chouinard, 179 Or.App. at 515, 39 P.3d 951 (emphasis added). Although the Tomlinsons must engage in physical activity "in caring for, transporting and assisting * * * Teddy," that is insufficient to establish the requisite physical effect under the rule.
That does not end our inquiry, however, because the Tomlinsons, by way of seeking to plead the existence of a cognizable "legally protected interest," further allege that they "unknowingly conceived and bore a child with a severe genetic defect" and that, "[h]ad defendants, and each of them, timely diagnosed Manny's DMD, [they] would not have produced another child suffering from [DMD]." Those allegations support the Tomlinsons' theory that defendants' negligence infringed on their important interest in controlling their "reproductive choices" and deciding "whether and when to have children." In other words, the Tomlinsons contend that defendants' negligence infringed on their interest in making informed reproductive choices. Thus, the issue here reduces to whether a parent's interest in making such choices is a "legally protected interest" that permits recovery for emotional distress damages as an exception to the physical impact rule.
In Curtis, we explained that a "legally protected interest" refers "to a sort of `duty' that is distinct from Fazzolari-like foreseeability." 148 Or.App. at 618, 941 P.2d 602 (footnote omitted). "The identification of such a distinct source of duty is the sine qua non of liability for emotional distress damages unaccompanied by physical injury." Id.; see also Delaney, 180 Or.App. at 124, 41 P.3d 1099 (reasoning that the plaintiff had failed to state a negligence claim because "liability for [the plaintiff's] purely psychic injury must have a legal source that goes beyond the common-law duty to exercise reasonable care to prevent foreseeable harm"). Oregon courts have recognized "legally protected interests" arising from a variety of sources: (1) interests recognized by common law, see, e.g., Macca v. Gen. Telephone Co. of N.W., 262 Or. 414, 495 P.2d 1193 (1972) (private nuisance); Hinish v. Meier & Frank Co., 166 Or. 482, 113 P.2d 438 (1941) (invasion of privacy); (2) interests arising from statutes, see, e.g., Nearing v. Weaver, 295 Or. 702, 707, 670 P.2d 137 (1983) (statutory duty imposed for the benefit of individuals who had been previously identified in court order); (3) interests arising from court orders, see McEvoy v. Helikson, 277 Or. 781, 789, 562 P.2d 540 (1977) (court order established the plaintiff's legal right to the custody of his child that was infringed by attorney's negligent delivery of passport); and (4) interests arising from special relationships, see, e.g., Shin v. Sunriver Preparatory School, Inc., 199 Or.App. 352, 111 P.3d 762, rev. den.,
Significantly, even if a plaintiff identifies a "protected interest," recovery for emotional distress damages is permitted only if the predicate legally protected interest is "`of sufficient importance as a matter of public policy to merit protections from emotional impact.'" Lockett v. Hill, 182 Or.App. 377, 380, 51 P.3d 5 (2002) (quoting Hilt v. Bernstein, 75 Or.App. 502, 515, 707 P.2d 88 (1985), rev. den., 300 Or. 545, 715 P.2d 92 (1986)). For example, where a defendant's negligence results in an underlying "economic or property loss that predictably also results in emotional distress, the invasion is not of sufficient importance to warrant an award of damages for emotional distress." Shin, 199 Or.App. at 371, 111 P.3d 762.
Thus, we must determine whether (1) the Tomlinsons have adequately pleaded the infringement of a distinct "legally protected interest" and (2) if they have, whether that interest is "of sufficient importance as a matter of public policy to merit protection from emotional impact." Lockett, 182 Or. App. at 380, 51 P.3d 5 (internal quotation marks omitted). We address each of those issues in turn.
In support of their contention that they have a legal interest in making informed reproductive choices, the Tomlinsons point to 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), in which, according to the Tomlinsons, "the United States Supreme Court articulated a constitutionally protected legal right to control one's reproductive choices and to decide whether and when to have children." However, we need not resolve whether Roe and Griswold, abstractly and independently, give rise to the requisite protected interest. That is so because, under the unique circumstances of this case, the Tomlinsons have sufficiently alleged a special relationship between themselves and defendants in which defendants owed them a heightened duty of care that gave rise to a legally protected interest in making informed reproductive choices.
"Whether a relationship is special is driven by the facts." Shin, 199 Or.App. at 366, 111 P.3d 762. "[T]he cases establish a functional as opposed to a formal analysis in determining whether the special relationship exists; in other words, the crucial aspect of the relationship is not its name, but the roles that the parties assume in the particular interaction * * *." Strader v. Grange Mutual Ins. Co., 179 Or.App. 329, 334, 39 P.3d 903, rev. den., 334 Or. 190, 47 P.3d 485 (2002). As we explained in Shin,
199 Or.App. at 367, 111 P.3d 762.
Here, the Tomlinsons have alleged such a heightened duty. To reiterate, the Tomlinsons alleged that (1) defendants had a physician-patient relationship with their son, Manny; (2) defendants breached the standard of care in that professional relationship by failing to recognize his "developmental abnormalities as possible symptoms of [DMD]," failing to test him for and diagnose him with that genetic disorder, and failing to inform the Tomlinsons that Manny had DMD and "advise and counsel [them] at any time before Teddy was conceived that there was a fifty percent likelihood that another male child born to them would also suffer from [DMD]"; and (3) as a result, the Tomlinsons "unknowingly conceived and bore" Teddy—who has that genetic condition—and they would not have done so but for defendants' negligence.
Assuming, as we must, that those allegations, and all reasonable inferences drawn from them, are true, they are sufficient to plead the existence of a relationship of reliance between defendants and the Tomlinsons that gave rise to a duty to avoid infringing on the Tomlinsons' interest in making informed reproductive choices. In other words, the interest in making informed reproductive decisions is a "legally protected interest" under the limited circumstances alleged here—viz., circumstances in which a medical provider, under the operative standard of care, is obligated to inform the biological parents that their child (i.e., the provider's patient) suffers from a genetic condition and to advise them as to the reproductive consequences of such a diagnosis.
The Minnesota Supreme Court explained why, in the context of genetic testing and diagnosis, a physician's obligations extend beyond a child patient to his or her biological parents. Molloy v. Meier, 679 N.W.2d 711 (Minn.2004). In Molloy, the physicians failed to test Molloy's daughter for Fragile X syndrome, but nonetheless reported that the child's developmental delays were not genetic in origin.
In holding that "a physician's duty regarding genetic testing and diagnosis extends beyond the patient to biological parents who foreseeably may be harmed by a breach of that duty," the court noted that Molloy's daughter "suffered from a serious disorder that had a high probability of being genetically transmitted and for which a reliable and accepted test was widely available" and that the physicians "should have foreseen that parents of childbearing years might conceive another child in the absence of knowledge of the genetic disorder." Id. at 719. As the court explained,
Id. (footnote omitted).
Having concluded that the Tomlinsons have alleged a legally protected interest in making reproductive decisions, we must determine whether that interest is "of sufficient importance as a matter of public policy to merit protection from emotional impact." Lockett, 182 Or.App. at 380, 51 P.3d 5 (internal
Moreover, there can be little doubt that informing parents of their child's genetic condition so that they can make informed reproductive decisions is an obligation imposed to avoid the severe emotional distress that is the direct consequence of its infringement. In his concurrence in Berman—a case in which the parents alleged that, had the mother's physician informed her of the availability of amniocentesis, she would have undergone the procedure, discovered that her fetus suffered from a genetic disorder, and aborted the fetus—Justice Handler eloquently explained the nature of the infringement of that interest:
80 N.J. at 438-39, 404 A.2d at 17-18 (Handler, J., concurring in part, dissenting in part) (citations omitted).
Those comments apply with equal force to the circumstances of this case and underscore our conclusion that the Tomlinsons have alleged the invasion of a legally protected interest that is "`of sufficient importance as a matter of public policy to merit protections from emotional impact.'" Lockett, 182 Or.App. at 380, 51 P.3d 5 (quoting Hilt, 75 Or.App. at 515, 707 P.2d 88). As Justice Handler explained, the infringement of the interest in making informed reproductive choices "may be thought of as the deprivation of moral initiative and ethical choice" and that, "[t]o be denied the opportunity indeed, the right to apply one's own moral values in reaching that decision, is a serious, irreversible wrong." Berman, 80 N.J. at 440, 404 A.2d at 18 (Handler, J., concurring in part, dissenting in part).
Thus, the Tomlinsons' allegations pertaining to noneconomic damages were legally sufficient and, as a result, their negligence claim did not reduce to one involving purely economic loss. For those reasons, the trial court erred in dismissing the Tomlinsons' negligence claim on the ground that their allegations pertaining to noneconomic damages were legally insufficient.
In sum, we have concluded that the trial court erred in dismissing the Tomlinsons'
As previously noted, 275 Or.App. at 670, 366 P.3d at 378, the trial court dismissed Teddy's claim because "there is no yardstick by which to measure his damages" and it "agree[d] with the reasoning of those courts [that] have examined such causes of action and conclude[d] that the viability of such claims is better left to policymakers than to judges and juries." As explained below, we agree with the trial court that, under established negligence principles in Oregon, Teddy's allegations are insufficient to state a cognizable negligence claim because he has failed to plead that he suffered legally cognizable damages.
To state a claim for negligence, a plaintiff must allege that he or she suffered legally cognizable damage. See Towe, 357 Or. at 86, 347 P.3d 766 (noting that basic negligence principles require a plaintiff to plead and prove, among other things, that the defendant's "`breach was the cause-in-fact of some legally cognizable damage to [the] plaintiff" (quoting Brennen v. City of Eugene, 285 Or. 401, 405, 591 P.2d 719 (1979) (brackets in Towe))); Chapman v. Mayfield, 358 Or. 196, 205, 361 P.3d 566 (2015) ("[C]ausation-in-fact and the occurrence of legally cognizable harm (damage) remain as elements of any * * * negligence claim."). As pertinent here, Teddy—as did his parents—alleged that defendants breached the professional standard of care that they owed to Manny by failing to diagnose Manny with and inform the Tomlinsons of his genetic condition and failing "to advise and counsel the [Tomlinsons] at any time before Teddy was conceived that there was a fifty percent likelihood that another male child born to them would also suffer from [DMD]." Further, Teddy alleges that, as a foreseeable result of that breach, the Tomlinsons "unknowingly conceived and bore" Teddy, who was born with DMD. In other words, Teddy alleges that, but for defendants' negligence, he would never have been born. Thus, Teddy's alleged injury is life itself.
Teddy disagrees with that characterization. He contends that his injury is not "life itself" but rather "the impairment that accompanies the life as a result of the defendants' conduct." However, the fundamental problem with that characterization is that Teddy does not allege that defendants' negligence caused his genetic condition, nor could he. That condition existed upon conception. Rather the amended complaint alleges that Teddy would never have been conceived and born—that is, he would never have been born at all—but for defendants' negligence. See Rich v. Foye, 51 Conn.Sup. 11, 41, 976 A.2d 819, 837 (2007) ("In this case, [the child] is alleged to have suffered a legally cognizable injury by being born impaired as opposed to not being born at all. If the purpose of awarding compensatory damages to [the child] is to put her back in the position she would have been were it not for the defendants' alleged negligence, this position would be nonexistence[.]"). Thus, contrary to Teddy's contentions, we agree with defendants that Teddy's alleged injury is "life itself."
Even if we assume for the sake of our analysis that "life" can be an injury, Teddy failed to allege legally cognizable damages.
80 N.J. at 427, 404 A.2d at 11-12 (internal quotation marks and citations omitted).
As applied to Teddy's claim, a trier of fact would be required to compare the value of nonexistence—the state that Teddy would have been in but for defendants' alleged negligence—and the value of his life with DMD. Simply put, as a matter of law, that comparison is impossible to make.
In sum, the trial court erred in dismissing the Tomlinsons' negligence claim on the grounds that (1) the Tomlinsons failed to allege a physician-patient relationship between defendants and themselves; (2) they failed to sufficiently allege that defendants caused their injury; and (3) the allegations to support their claims for noneconomic damages were legally insufficient. However, the trial court did not err in dismissing Teddy's claim because he failed to allege legally cognizable damages. Further, as noted above, 275 Or.App. at 660, 366 P.3d at 373, we have also rejected without written discussion defendants' cross-assignments of error concerning their motions to dismiss on statute of limitations and repose grounds. Accordingly, we reverse and remand the Tomlinsons' negligence claim—a disposition that, coupled with the trial court's "mootness" determination in this procedural posture, requires the court to consider, in the first instance, defendants' motions to strike and to make the Tomlinsons' claim more definite and certain—but otherwise affirm.
Reversed and remanded as to the Tomlinsons' negligence claim; otherwise affirmed.
However, as the Tomlinsons explain, many of those cases concerned the medical treatment of a child and, ultimately, the failure to diagnose "the congenital or hereditary nature of [an older child's] ailment before the parents unknowingly conceived and bore a second child suffering from the same genetic condition." Further, according to the Tomlinsons, where defendants negligently failed to diagnose Manny and failed to inform them of his genetic condition and their reproductive risks, their failure to allege that they inquired as to whether Manny might have a genetic condition so as to obtain some affirmative representation from defendants is not dispositive:
(Internal citation omitted.)
679 N.W.2d at 714 n. 2.
764 P.2d at 1210 (footnote omitted).
