Tomlinson v. Metro. Pediatrics, LLC

275 Or.App. 658

366 P.3d 370

Kerry TOMLINSON and Scott Tomlinson, individually; and Kerry Tomlinson as guardian ad litem for her minor son Edward Tomlinson, Plaintiffs–Appellants,

v. METROPOLITAN PEDIATRICS, LLC, an Oregon limited liability corporation; Legacy Emanuel Hospital & Health Center, dba Legacy Emanuel Pediatric Development and Rehabilitation Clinic; and Mary K. Wagner, M.D.; Defendants–Respondents,andLegacy Emanuel Hospital & Health Center, an Oregon non-profit corporation, dba Legacy Emanuel Health Center; and Sharon D. Butcher, CPNP, Defendants.

110911971

A151978.

Court of Appeals of Oregon.

Argued and Submitted Dec. 10, 2013.

Decided Dec. 30, 2015.

Kathryn H. Clarke argued the cause for appellants. With her on the briefs were William A. Gaylord, Linda K. Eyerman, and Craig A. Nichols.

Michael J. Estok argued the cause for respondents Metropolitan Pediatrics, LLC, and Mary K. Wagner, M.D. With him on the joint briefs were Lindsay Hart, LLP; Lindsey H. Hughes, Hillary A. Taylor, and Keating Jones Hughes, P.C.

Lindsey H. Hughes, Portland, argued the cause for respondent Legacy Emanuel Hospital & Health Center. With her on the joint briefs were Hillary A. Taylor and Keating Jones Hughes, P.C.; Michael J. Estok and Lindsay Hart, LLP.

Before LAGESEN, Presiding Judge, and HASELTON, Chief Judge, and SCHUMAN, Senior Judge.^*

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.

I. FACTS

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."

Manny was defendants' patient.¹ "Over the course of numerous medical contacts with Manny, defendants, and each of them, undertook to assess the cause of Manny's developmental abnormality, but failed to diagnose it and failed to order or perform the appropriate diagnostic testing or referrals to do so." Ultimately, "[i]n October 2010, Manny was diagnosed with Duchenne's muscular dystrophy [ (DMD) ], a severe and progressively debilitating neuromuscular disorder characterized by muscle weakness and wasting, loss of the ability to walk (usually by age 12), progressive paralysis, and premature death." DMD "is a genetic disorder. Females may carry the recessive gene for [DMD] but do not suffer from the disease. If a couple has a child with [DMD], the chances are fifty percent that subsequent male children born to that couple will also have [DMD]."²

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.³ Specifically, plaintiffs alleged that defendants were negligent in one or more of the following ways:

"a) in failing to recognize Manny's developmental abnormalities as possible symptoms of [DMD];

"b) in failing to test Manny for [DMD];

"c) in failing to properly diagnose Manny as suffering from [DMD];

"d) in failing to inform the plaintiffs that Manny had [DMD];

"e) in failing to advise and counsel the plaintiffs 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]; * * *

"f) in failing to provide Manny with examination and diagnostic work up by a medical doctor in a specialty field whose training qualified them to diagnose neuromuscular disorders, developmental delays, genetic disorders, or muscular dystrophy ;"g) in failing to provide Manny with examination and diagnostic work up by any medical doctor; [and]

"h) in failing to pursue a diagnosis for the cause of Manny's abnormally low muscle tone (hypotonia) until genetic conditions such as [DMD] were ruled out or a reasonable explanation for his condition was found."

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 continue to suffer extraordinary physical demands in caring for, transporting and assisting * * * Teddy, resulting in increased susceptibility to physical injury, and severe emotional distress [.]" The Tomlinsons also alleged $995,428 in damages for the "extraordinary costs for the medical care, education and support [that] Teddy will require because of his genetic condition for the remainder of his minority[.]"

With regard to his claim, Teddy, in addition to the preceding allegations, alleged:

"As a direct and foreseeable result of the negligence of the defendants, and each of them, Teddy * * * was born with [DMD], and will suffer muscle weakness and wasting, loss of the ability to walk, progressive paralysis, and premature death. He will become increasingly disabled and totally dependent on others for his care and his most basic functions, and will never be able to work or to participate in or enjoy many of the activities that healthy people enjoy. He carries an increased likelihood of cognitive and behavioral problems and will experience physical and emotional pain and suffering, including the emotional pain and suffering associated with the knowledge of his own premature death, as well as emotional pain and suffering associated with his knowledge and awareness of the grief, anguish and emotional pain and suffering of his parents on account of his incurable illness and early death, all to his non-economic damages in the amount of $10,000,000.00."

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[.]"

II. PROCEDURAL HISTORY

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...