WILLIE C. JACKSON AND JAMES E. JACKSON, APPELLANTS,
v.
DR. W. RICHARD ANDERSON, APPELLEE
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The Jackson family sued their physician for breach of warranty and negligence after a sterilization procedure failed, resulting in an unplanned pregnancy and birth of a healthy child. The court held that the birth of a healthy child does not preclude recovery on public policy grounds, reversing the dismissal of their complaint.
The court held that the birth of a healthy child does not preclude recovery on public policy grounds. A cause of action for breach of warranty and negligence in performing a sterilization procedure remains viable, and the fact that a healthy child was born goes to the mitigation of damages rather than the viability of the claim.
[1] A contract to perform an operation sterilizing a patient is not contrary to public policy.
[2] The normal birth of a healthy child does not preclude recovery for breach of warranty or negligence in a sterilization procedure.
Previewing 2 of 4 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“If the appellee's contention is rect it results in an anomalous situation. It is uncontroverted that prior to the normal delivery of the child an action would lie.”
Establishes the logical inconsistency in allowing the birth to defeat liability when suit would lie before delivery
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Join FLexlaw to unlock all legal intelligenceMrs. Jackson underwent a sterilization operation performed by Dr. Anderson after experiencing difficult pregnancies. Despite the procedure, Mrs. Jacks…
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The complaint dismissed by the order appealed from alleges breach of express warranty and negligence. After a difficult time culminating with the birth of her third child, the defendant recommended and performed an operation said to sterilize Mrs. Jackson. Later, Mrs. Jackson conceived and bore a healthy child after an uneventful pregnancy, a fact not pleaded but admitted at the hearing on the motion. The physician whose breach and negligence are charged contends that a normal birth of a healthy child precludes recovery, on grounds of public policy. We disagree.
If the appellee’s contention is rect it results in an anomalous situation. It is uncontroverted that prior to the normal delivery of the child an action would lie.l A contract to perform an operation sterilizing the patient is not contrary to public policy. Christensen v. Thornby, 1934, 192 Minn. 123, 255 N.W. 620, 93 A.L.R. 570. Should plaintiffs in this situation file immediately and push for final hearing before delivery? Could a dilatory defendant defeat recovery? Should we recognize a cause of action defeasible upon the happening of a condition subsequent? Even if we treat the order dismissing the complaint as a final summary judgment — which, since it takes into account an admitted fact not pleaded, fits more neatly into our conceptual pigeonholes — the fallacy in appellee’s argument is clear: he suggests as vitiating liability a fact which mitigates damages.
We have no way of telling what damages the -jury will assess, but if the plaintiffs can prove their case the jury is entitled to assess them. This child is not to be thought of as unwanted or unloved,but as unplanned. It is too early to express a judicial opinion on questions of damages, and we do not imply agreement or disagreement with those parts of the complaint directed to this question. On the basic question, however, we hold that these actions will lie. A California court, in Custodio v. Bauer, 1967, 251 Cal.App.2d 303, 59 *504Cal.Rptr. 463, discusses the principles involved and collects the authorities. Pinkney v. Pinkney, Fla.App.1967, 198 So.2d 52, is irrelevant. Vilord v. Jenkins, Fla.App.1969, 226 So.2d 245 involved the same factual situation but the question was not presented.
Reversed and remanded.
LILES, A. C. J., and PIERCE, J., concur.
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Pub. Health Tr. v. Brown, 388 So. 2d 1084 (Fla. 3d DCA 1980)…entire legal system. This, we believe, is just such a case. The judgment under review is reduced by $19,500 and, as so modified, is affirmed. Affirmed in part, reversed in part. . The damage issue was specifically reserved in Jackson v. Anderson, 230 So. 2d 503 (Fla.2d DCA 1970), which was the first Florida decision to recognize the right to recover for a negligent sterilization which does not achieve the desired result. Cf., Aronoff v. Snider, 292 So. 2d 418 (Fla.2d DCA 1974) (no cause of action in siblin…
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Fassoulas v. Ramey, 450 So. 2d 822 (Fla. 1984)…cases the parents do not want a child at all. Note, Wrongful Conception: Who Pays for Bringing Up Baby?, 47 Fordham L.Rev. 418, 418 n. 7 (1978). . "This child is not to be thought of as unwanted or unloved, but as unplanned.” Jackson v. Anderson, 230 So. 2d 503, 503 (Fla. 2d DCA 1970). . § 920. Benefit to Plaintiff Resulting from Defendant's Tort "When the defendant’s tortious conduct has caused harm to the plaintiff or his property and in so doing has conferred a special benefit to the interest of the p…
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Ramey v. Fassoulas, 414 So. 2d 198 (Fla. 3d DCA 1982)…rvices] which results in the birth of an unwanted child. Moores v. Lucas, 405 So. 2d 1022 (Fla. 5th DCA 1981); Public Health Trust v. Brown, 388 So. 2d 1084 (Fla. 3d DCA 1980), pet. for review denied, 399 So. 2d 1140 (Fla.1981); Jackson v. Anderson, 230 So. 2d 503 (Fla. 2d DCA 1970). Although the recoverable items of damages tend to be much the same as any other negligence malpractice action, most courts, for good reason, have been reluctant to allow recovery for the cost of raising a child to his or her majo…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Elizabeth Ann Vilord and her husband v. William Jenkins, M.D., 226 So. 2d 245 (Fla. 2d DCA 1969)
- Frederica Yvette Pinkney v. Pinkney, 198 So. 2d 52 (Fla. 1st DCA 1967)