BRADIAN, ET UX
v.
BALITON, ET AL.
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A Florida circuit court addressed a wrongful birth action arising from a failed tubal ligation. The court ruled that parents cannot recover the costs of raising a healthy child and struck portions of the complaint seeking such damages, punitive damages, and damages on behalf of siblings.
The court held that parents cannot recover the full costs of child-rearing from a physician, punitive damages are not warranted absent allegations supporting such recovery, siblings have no cause of action for diminished parental attention, and a mother cannot claim lost income from a business that never existed as an ongoing concern.
[1] Parents cannot recover the costs of raising a healthy child born after a failed sterilization procedure.
[2] A claim for punitive damages requires allegations that, if true, would warrant such recovery.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“it would be wrong to permit the parents to keep their child and yet shift the entire cost of its upbringing to a physician”
The court's core rationale for denying child-rearing costs as damages, establishing the legal principle that wrongful birth recoveries do not include full child-rearing expenses.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDr. Romeo C. Baliton performed a tubal ligation on Diane Bradian, which failed. Diane subsequently became pregnant and gave birth to a healthy female …
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This cause came before me on motions by the defendants, Romeo C. Baliton, M. D. and the Pimco Insurance Company, to dismiss and/or strike portions of the plaintiffs’ complaint. This case arose as a result of a tubal ligation that failed. Subsequent to the tubal ligation the plaintiff, Diane Bradian, became pregnant and gave *202birth to a healthy female infant, Christina Frances Bradian. The complaint claims that the tubal ligation was unsuccessful because of the negligence of the defendant, Romeo C. Baliton, M. D. The complaint alleges damages to the mother Diane Bradian, her husband Nicholas Bradian, and further seeks damages on behalf of the siblings of the unplanned child, Christina Frances Bradian. The various pending motions have been carefully considered by this court. It is thereupon ordered and adjudged as follows —
The complaint seeks, as an element of damage, recovery for the cost and expense of caring for, educating, and raising the minor child. The case of Jackson v. Anderson, 230 So.2d 503 (2nd Dist. 1970) recognizes an action for a wrongful birth of a healthy infant, but expressly declined to rule upon what element of damages could be claimed as a result. It is this court’s view that it would be wrong to permit the parents to keep their child and yet shift the entire cost of its upbringing to a physician. Coleman v. Garrison, 349 Atl.2d 8 (Del. 1975). Accord: Carol v. Garcia, 496 SW 2d 124 (Tex. 1973); Christenson v. Thornby, 255 NW 620 (Minn. 1934); Shaheen v. Knight, 11 Pa. D.C. 2d 41 (Penn. 1951); Clegg v. Chase, 391 NYS 2d 966 (1977); Reich v. Medical Protective Co., 219 NW 2d 242 (Wis. 1974); Gleitman v. Cosgrove, 227 Atl. 2d 689 (N.J. 1967). Therefore, paragraph 7 in Count II and paragraph 5 in the prayer for judgment of Count II are hereby stricken.
The defendants have moved to strike the claim for punitive damages. There are no allegations against the defendant physician which, if true, would warrant recovery of punitive damages. Therefore, paragraph 2 in the prayer for judgment of Count I is stricken and paragraph 6 in the prayer for judgment of Count II is stricken.
The plaintiff parents seek, on behalf of other siblings to the unplanned child, damages for the diminishment of each child’s portion of the care, affection and training which allegedly has occurred because the children have acquired a baby sister. No such cause of action exists. Aronoff v. Smider, 292 So.2d 418 (2nd Dist. 1974). Therefore, Count III is stricken and dismissed in its entirety.
That part of paragraph 5, contained in Count IV which reads, “And has further lost the income from the beauty parlor which she does not have the time to operate since the new child consumes a major portion of her spare time“ is stricken. That part of the prayer for judgment contained in paragraph 1 of Count IV which reads, “For loss of income from her beauty parlor,” is stricken. Conner v. Atlas Sircraft Corp., 310 So.2d 352 (3rd Dist. 1975). It is conceded by the plaintiffs that the beauty shop never existed as an ongoing business.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Pub. Health Tr. v. Brown, 388 So. 2d 1084 (Fla. 3d DCA 1980)
Authorities Cited
- Conner v. Atlas Aircraft Corp., 310 So. 2d 352 (Fla. 3d DCA 1975)
- Jackson v. Anderson, 230 So. 2d 503 (Fla. 2d DCA 1970)
- Watson v. State, 292 So. 2d 418 (Fla. 2d DCA 1974)