{ "id": 11710429, "name": "THOMASINE B. McALLISTER AND EDWARD McALLISTER, Plaintiffs v. KHIE SEM HA, M.D., Defendant", "name_abbreviation": "McAllister v. Khie Sem Ha", "decision_date": "1997-05-20", "docket_number": "No. COA96-850", "first_page": "326", "last_page": "331", "citations": [ { "type": "official", "cite": "126 N.C. App. 326" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "395 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "97", "parenthetical": "holding that plaintiff-parents stated a claim for negligent infliction of emotional distress where defendant-doctor caused death of unborn fetus" } ], "opinion_index": 0 }, { "cite": "327 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497384 ], "year": 1990, "pin_cites": [ { "page": "304", "parenthetical": "holding that plaintiff-parents stated a claim for negligent infliction of emotional distress where defendant-doctor caused death of unborn fetus" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0283-01" ] }, { "cite": "148 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "597", "parenthetical": "plaintiff entitled to recover \"all damages naturally and proximately resulting\" from the defendant's tort" } ], "opinion_index": 0 }, { "cite": "267 N.C. 594", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559987 ], "year": 1966, "pin_cites": [ { "page": "597", "parenthetical": "plaintiff entitled to recover \"all damages naturally and proximately resulting\" from the defendant's tort" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0594-01" ] }, { "cite": "347 S.E.2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "pin_cites": [ { "page": "750" }, { "page": "750" }, { "page": "749" } ], "opinion_index": 0 }, { "cite": "638 F. Supp. 979", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3876932 ], "year": 1986, "pin_cites": [ { "page": "980", "parenthetical": "holding that a \"cause of action . . . must exist in North Carolina when ... a health care provider negligently provides [genetic] counseling and information which induces a couple to conceive a defective child\"" } ], "opinion_index": 0, "case_paths": [ "/f-supp/638/0979-01" ] }, { "cite": "405 So. 2d 1022", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9585042, 9584908 ], "year": 1981, "pin_cites": [ { "page": "1026", "parenthetical": "duty to warn potential parents of inheritable diseases" } ], "opinion_index": 0, "case_paths": [ "/so2d/405/1022-02", "/so2d/405/1022-01" ] }, { "cite": "656 P.2d 483", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1983, "opinion_index": 0 }, { "cite": "17 Campbell L. Rev. 169", "category": "journals:journal", "reporter": "Campbell L. Rev.", "year": 1995, "pin_cites": [ { "page": "232" } ], "opinion_index": 0 }, { "cite": "852 F.2d 773", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10545149 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "776" } ], "opinion_index": 0, "case_paths": [ "/f2d/852/0773-01" ] }, { "cite": "343 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "304" }, { "page": "305" } ], "opinion_index": 0 }, { "cite": "358 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732963 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "178" }, { "page": "182-83" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0172-01" ] }, { "cite": "337 S.E.2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1985, "pin_cites": [ { "page": "530" }, { "page": "535" }, { "page": "535" }, { "page": "528" }, { "page": "534" } ], "opinion_index": 0 }, { "cite": "315 N.C. 103", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719732 ], "weight": 4, "year": 1985, "pin_cites": [ { "page": "105" }, { "page": "111" }, { "page": "111" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0103-01" ] }, { "cite": "351 S.E.2d 746", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "318 N.C. 694", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738404, 4737929, 4740404, 4738486, 4734713 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/318/0694-03", "/nc/318/0694-02", "/nc/318/0694-05", "/nc/318/0694-01", "/nc/318/0694-04" ] }, { "cite": "349 S.E.2d 82", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "83" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 155", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358214 ], "year": 1986, "pin_cites": [ { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0155-01" ] } ], "analysis": { "cardinality": 637, "char_count": 14194, "ocr_confidence": 0.756, "pagerank": { "raw": 2.208705353199233e-07, "percentile": 0.7760039291866051 }, "sha256": "1e569d2228271925db13ce8bf01c7126aa5f98e9d7929ccab8c6d2f9fd4ba6cf", "simhash": "1:10ebf7281176e9da", "word_count": 2304 }, "last_updated": "2023-07-14T19:11:14.463583+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and TIMMONS-GOODSON concur." ], "parties": [ "THOMASINE B. McALLISTER AND EDWARD McALLISTER, Plaintiffs v. KHIE SEM HA, M.D., Defendant" ], "opinions": [ { "text": "GREENE, Judge.\nThomasine and Edward McAllister (collectively plaintiffs) appeal the dismissal of their complaint (pursuant to Rule 12(b)(6)) alleging the negligence of Dr. Khie Sem Ha (defendant). The material allegations of the complaint reveal the following facts: (1) the defendant is a duly licensed physician practicing family medicine; (2) in 1991 the plaintiffs visited the defendant\u2019s office to have blood drawn to test \u201cfor sickle cell\u201d disease; (3) the defendant told the plaintiffs that \u201cif there was anything to be concerned about, then he would call them\u201d and if they did not hear from him \u201cthere was nothing to be concerned about\u201d; (4) the blood test indicated that both of the plaintiffs were sickle cell carriers and there was a \u201cone in four risk of [them] bearing a child with sickle cell disease\u201d; (5) the defendant did not inform the plaintiff of the results of the blood test; (6) Thomasine became pregnant and gave birth to a son on 27 May 1994; and (7) the child has Hemoglobin O Arab, a sickle cell disease.\nThe complaint further alleges that the defendant was negligent and \u201cwanton and reckless\u201d in failing to communicate the results of the blood test to the plaintiffs and as a consequence they were (1) caused extreme emotional and mental distress; (2) deprived of \u201can opportunity to make an informed decision as to whether or not to have anymore [sic] children\u201d; and (3) suffered financial loss. The plaintiffs seek compensatory and punitive damages.\nThe issues are whether the allegations of the complaint are sufficient to support a claim for: (I) medical malpractice where the defendant (physician) failed to inform the plaintiffs (parents) of the results of their genetic testing indicating the couple\u2019s increased risk of bearing a child with sickle cell disease; and (II) negligent infliction of emotional distress.\n\u201cA motion to dismiss for failure to state a claim upon which relief maybe granted under [N.C.Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) (1990)] is addressed to whether the facts alleged in the complaint, when viewed in the light most favorable to the plaintiffs, give rise to a claim for relief on any theory.\u201d Ford v. Peaches Entertainment Corp., 83 N.C. App. 155, 156, 349 S.E.2d 82, 83 (1986), cert. denied, 318 N.C. 694, 351 S.E.2d 746 (1987).\nI\nThe defendant argues that the dismissal of the complaint was proper because it constitutes a \u201cwrongful birth\u201d action and is thus proscribed by Azzolino v. Dingfelder, 315 N.C. 103, 337 S.E.2d 528 (1985). The plaintiffs argue that their claim is one for \u201cwrongful conception\u201d and is permitted by Jackson v. Bumgardner, 318 N.C. 172, 358 S.E.2d 489 (1986).\nIn Azzolino the parents alleged that the physician failed to advise them \u201cwith respect to the availability of amniocentesis and genetic counseling\u201d and if so advised they \u201cwould have had amniocentesis performed\u201d which would have shown that the child would have Down\u2019s Syndrome and having that information they would have terminated the pregnancy by an abortion. 315 N.C. at 105, 337 S.E.2d at 530. In rejecting the \u201cwrongful birth\u201d claim the Supreme Court noted several considerations: (1) the injury claimed was the birth of the child and this cannot amount to a legal injury because every life has value, even life with severe defects; Azzolino, 315 N.C. at 111, 337 S.E.2d at 535; (2) claim is \u201cpeculiarly subject\u201d to fraud because it hinges on testimony of parents given after the birth \u201cconcerning their desire prior to the birth to terminate the fetus should it be defective[,]\u201d id. at 113, 337 S.E.2d at 535; and (3) claim would increase pressure on physicians to recommend abortion of fetus when genetic imperfections are discovered and \u201cwe do not wish to create a claim for relief which will encourage such results.\u201d Id. at 114, 337 S.E.2d at 528.\nIn Jackson the plaintiff wife was assured by the defendant physician that he had replaced her intrauterine device (IUD) after performing a D and C (dilation and curettage). 318 N.C. at 174, 347 S.E.2d at 744. Some months later she discovered that she was pregnant and that the defendant had not replaced the IUD after the surgery. Id. The plaintiff (wife and husband) had a \u201chealthy baby.\u201d Id. The plaintiffs filed an action alleging medical malpractice and \u201cseeking damages for plaintiff wife\u2019s pregnancy and for the cost of rearing the new baby.\u201d Id. In recognizing the claim the Jackson Court noted the distinctions between Azzolino and Jackson: (1) Mrs. Azzolino did not complain about becoming pregnant; (2) Mrs. Jackson sought to avoid her pregnancy; (3) the claimed injury in the Azzolino case was to the child; (4) the injury in the Jackson case was to the mother; (5) in Azzolino the physician was not responsible for the defects in the child; (6) in Jackson the physician\u2019s alleged negligence contributed to the pregnancy; (7) the plaintiffs claimed in Azzolino that had the physician acted properly the fetus would have been aborted; and (8) abortion of a fetus is not an issue in Jackson. Jackson 318 N.C. at 180-81, 347 S.E.2d at 748.\nIn this case the plaintiffs allege the defendant owed them a duty to provide information they sought to allow them an opportunity to make an informed decision about whether to have children and that the defendant breached that duty. These allegations are sufficient to allege a claim for \u201cwrongful conception\u201d as that tort has been defined by Jackson. The Jackson Court did not limit this tort to negligently performed sterilizations and abortions that result in the birth of an unwanted child, as some courts have, see Miller v. Johnson, 343 S.E.2d 301, 304 (Va. 1986), but, instead, broadened the tort to include \u201ccases similar to\u201d the facts in that case. Jackson, 318 N.C. at 178, 347 S.E.2d at 747. The alleged facts in this case are \u201csimilar to\u201d the facts in Jackson. In Jackson the plaintiffs were seeking to avoid having a child. In this case the plaintiffs were seeking information that would have assisted them in deciding whether to have another child. We acknowledge one major distinction between the facts in Jackson and the facts in this case: the child in Jackson was born healthy and the child in this case was bom with impairments. This distinction, however, does not transform the plaintiffs\u2019 claim into one for \u201cwrongful birth.\u201d In a \u201cwrongful birth\u201d action, as defined by Azzolino, the medical treatment rendered by the physician \u201cdeprives the parents of the opportunity of deciding to abort a deformed fetus.\u201d Jackson, 318 N.C. at 180, 347 S.E.2d at 748. In this case, as in Jackson, the plaintiff wife carried the child to term and the child was born and there is no allegation that the acts of the physician precluded her from having an abortion. A \u201cwrongful conception\u201d claim exists not only when a normal child is bom but also when a child is bom with impairments, as the health of the child is not relevant to the validity of the claim. See Gallagher v. Duke Univ. 852 F.2d 773, 776 (4th Cir. 1988); Tony Hartsoe, Person or Thing-In Search of the Legal Status of a Fetus: A Survey of North Carolina Law, 17 Campbell L. Rev. 169, 232 (1995) [hereinafter Hartsoe].\nFurthermore, to allow a \u201cwrongful conception\u201d claim on the facts presented in this case is consistent with holdings from other states allowing causes of action against health care providers who fail to provide parents material information regarding the likelihood that their future children would be born defective, thus enabling the potential parents to decide whether to avoid the conception of such children. See 2 Stuart Speiser, The American Law of Torts \u00a7 9:27 (1985) [hereinafter Speiser]; Harbeson v. Parke-Davis, Inc., 656 P.2d 483 (Wash. 1983); Moores v. Lucas, 405 So. 2d 1022, 1026 (Fla. Dist. Ct. App. 1981) (duty to warn potential parents of inheritable diseases); Hartsoe, at 217 (where a physician has duty to provide care and counseling with regard to reproductive functioning, failure to diagnose genetic defects prior to conception supports the claim for wrongful conception in North Carolina); Gallagher v. Duke Univ., 638 F. Supp. 979, 980 (M.D.N.C. 1986) (holding that a \u201ccause of action . . . must exist in North Carolina when ... a health care provider negligently provides [genetic] counseling and information which induces a couple to conceive a defective child\u201d) rev\u2019d in part on other grounds, 852 F.2d 773 (4th Cir. 1988).\nHaving determined that the plaintiffs have asserted a valid claim for \u201cwrongful conception,\u201d we address the issue of damages. The Jackson Court was specific in holding that the plaintiffs were entitled to recover \u201cexpenses associated with [the] pregnancy\u201d and damages for any \u201cemotional distress causally resulting from\u201d the wrongful conception. 318 N.C. 172, 182-83, 347 S.E.2d 743, 750. Expenses associated with the pregnancy include medical expenses, pain and suffering, and lost wages for a reasonable period. Id. at 183, 347 S.E.2d at 750. The Court held that the plaintiffs were not entitled to recover the \u201ccosts of rearing their child,\u201d id. at 182, 347 S.E.2d at 749, relying on Azzolino and the Virginia case of Miller, 343 S.E.2d at 305. In Miller the facts reveal a healthy child born after a failed abortion effort by a physician. Id. In Azzolino the Court determined that the injury claimed was the birth of the child and that no damages could flow from the birth of a child, even one with impairments. 315 N.C. at 111, 337 S.E.2d at 534. In this case, we have an impaired child (thus Miller is not applicable) and the injury claimed is the conception of a child with a genetic defect, not the birth (thus Azzolino does not apply). Accordingly we do not read Jackson as prohibiting the recovery of damages for the extraordinary care (in excess of the cost of raising a normal child) involved in the treatment of a child\u2019s abnormalities which were the foreseeable consequence of a physician\u2019s negligence in failing to inform the parents, prior to conception, of the possibility of such abnormalities. See Speiser \u00a7 9:27. These extraordinary expenses \u201cnaturally and proximately\u201d flow from the injury in this case, the conception of a child with sickle cell disease. See King v. Britt, 267 N.C. 594, 597, 148 S.E.2d 594, 597 (1966) (plaintiff entitled to recover \u201call damages naturally and proximately resulting\u201d from the defendant\u2019s tort).\nII\nTo state a claim for negligent infliction of emotional distress, a plaintiff must allege that: (1) the defendant negligently engaged in conduct; (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress; and (3) the conduct did in fact cause the plaintiff severe emotional distress. Johnson v. Ruark Obstetrics, 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990) (holding that plaintiff-parents stated a claim for negligent infliction of emotional distress where defendant-doctor caused death of unborn fetus). The allegations are sufficient to support the negligent infliction of emotional distress claim, as it was reasonably foreseeable that the defendant\u2019s failure to inform the plaintiffs of the blood test results would cause the. plaintiffs severe emotional distress. The plaintiffs have alleged they sustained extreme emotional distress.\nIn summary, the trial court erred in dismissing the complaint and the case is remanded to allow the plaintiffs to proceed on a claim for \u201cwrongful conception\u201d and negligent infliction of emotional distress.\nReversed and remanded.\nJudges WYNN and TIMMONS-GOODSON concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Brill & Britt, P.L.L.C., by William S. Britt, for the plaintiffs.", "Cranfill, Sumner & Hartzog, L.L.P., by Gregory M. Kash, for defendant." ], "corrections": "", "head_matter": "THOMASINE B. McALLISTER AND EDWARD McALLISTER, Plaintiffs v. KHIE SEM HA, M.D., Defendant\nNo. COA96-850\n(Filed 20 May 1997)\n1. Abortion; Prenatal or Birth-Related Injuries and Offenses \u00a7 24 (NCI4th)\u2014 genetic testing \u2014 failure to inform of results \u2014 \u201cwrongful conception\u201d \u2014 sufficient allegations\nIn a medical malpractice case where defendant physician failed to inform plaintiff parents of the results of their genetic testing indicating their increased risk of bearing a child with sickle cell disease, plaintiffs\u2019 complaint was sufficient to support a claim for \u201cwrongful conception\u201d where the complaint alleged that defendant owed plaintiffs a duty to provide the information to allow them an opportunity to make an informed decision about whether to have children, and that plaintiff wife thereafter became pregnant and gave birth to a child with a sickle cell disease.\nAm Jur 2d, Prenatal Injuries, Wrongful Life, Birth, or Conception \u00a7\u00a7 109, 111.\n2. Abortion; Prenatal or Birth-Related Injuries and Offenses \u00a7 24 (NCI4th) \u2014 wrongful conception \u2014 sickle cell disease\u2014 damages recoverable\nParents who are successful in a claim for \u201cwrongful conception\u201d of a child with a sickle cell disease may recover expenses associated with the pregnancy, damages for emotional distress causally resulting from the wrongful conception, and damages for the extraordinary care (in excess of the cost of raising a normal child) involved in the treatment of the child\u2019s abnormalities which are the foreseeable consequence of a defendant physician\u2019s negligence in failing to inform the parents, prior to conception, of the possibility of such abnormalities.\nAm Jur 2d, Prenatal Injuries, Wrongful Life, Birth, or Conception \u00a7\u00a7 109, 111.\n3. Abortion; Prenatal or Birth-Related Injuries and Offenses \u00a7 24 (NCI4th)\u2014 wrongful conception \u2014 infliction of emotional distress \u2014 sufficient allegations\nPlaintiffs stated a claim for negligent infliction of emotional distress where they alleged that defendant physician failed to inform them of the results of genetic testing indicating their increased risk of bearing a child with sickle cell disease, that plaintiff wife thereafter became pregnant and gave birth to a child with a sickle cell disease, and that they have sustained severe emotional distress as a result of defendant\u2019s negligence.\nAm Jur 2d, Prenatal Injuries, Wrongful Life, Birth, or Conception \u00a7\u00a7 109, 111.\nAppeal by plaintiffs from order dated 21 March 1996 in Robeson County Superior Court by Judge Joe Freeman Britt. Heard in the Court of Appeals 1 April 1997.\nBrill & Britt, P.L.L.C., by William S. Britt, for the plaintiffs.\nCranfill, Sumner & Hartzog, L.L.P., by Gregory M. Kash, for defendant." }, "file_name": "0326-01", "first_page_order": 364, "last_page_order": 369 }