{ "id": 551095, "name": "THOMASINE B. McALLISTER and EDWARD McALLISTER v. KHIE SEM HA, M.D.", "name_abbreviation": "McAllister v. Ha", "decision_date": "1998-03-06", "docket_number": "No. 298PA97", "first_page": "638", "last_page": "649", "citations": [ { "type": "official", "cite": "347 N.C. 638" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "485 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": -1 }, { "cite": "126 N.C. App. 326", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11710429 ], "year": 1997, "opinion_index": -1, "case_paths": [ "/nc-app/126/0326-01" ] }, { "cite": "318 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732963 ], "opinion_index": -1, "case_paths": [ "/nc/318/0172-01" ] }, { "cite": "315 N.C. 103", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719732 ], "opinion_index": -1, "case_paths": [ "/nc/315/0103-01" ] }, { "cite": "267 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "591" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 651", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551486 ], "year": 1980, "pin_cites": [ { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0651-01" ] }, { "cite": "395 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1990, "pin_cites": [ { "page": "97-98", "parenthetical": "citations omitted" }, { "page": "98" }, { "page": "98" } ], "opinion_index": 0 }, { "cite": "327 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497384 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0283-01" ] }, { "cite": "250 S.E.2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "258", "parenthetical": "\" '[P]roximate cause is ordinarily a question of fact for the jury, to be solved by the exercise of good common sense in the consideration of the evidence of each particular case.' \"" }, { "page": "258" } ], "opinion_index": 0 }, { "cite": "296 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566400 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "403", "parenthetical": "\" '[P]roximate cause is ordinarily a question of fact for the jury, to be solved by the exercise of good common sense in the consideration of the evidence of each particular case.' \"" }, { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0400-01" ] }, { "cite": "93 L. Ed. 2d 75", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "105" } ], "opinion_index": 0 }, { "cite": "479 U.S. 835", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6337380, 6337829, 6335429, 6336041, 6337129, 6336299, 6338284, 6335857, 6336722, 6336918, 6338071, 6336536, 6335641, 6337599 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/479/0835-10", "/us/479/0835-12", "/us/479/0835-01", "/us/479/0835-04", "/us/479/0835-09", "/us/479/0835-05", "/us/479/0835-14", "/us/479/0835-03", "/us/479/0835-07", "/us/479/0835-08", "/us/479/0835-13", "/us/479/0835-06", "/us/479/0835-02", "/us/479/0835-11" ] }, { "cite": "337 S.E.2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1985, "pin_cites": [ { "page": "530" }, { "page": "533" }, { "page": "534" }, { "page": "532" } ], "opinion_index": 0 }, { "cite": "347 S.E.2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 16, "year": 1986, "pin_cites": [ { "page": "745" }, { "page": "744-45" }, { "page": "745" }, { "page": "748" }, { "page": "745" }, { "page": "748-49" }, { "page": "747" }, { "page": "747-48" }, { "page": "748" }, { "page": "748" }, { "page": "749" }, { "page": "744-45" }, { "page": "746" }, { "page": "749" } ], "opinion_index": 0 }, { "cite": "88 S.E.2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1955, "pin_cites": [ { "page": "765", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "242 N.C. 517", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618023 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/nc/242/0517-01" ] }, { "cite": "388 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "136" } ], "opinion_index": 0 }, { "cite": "326 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307411 ], "year": 1990, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0205-01" ] }, { "cite": "254 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "625" } ], "opinion_index": 0 }, { "cite": "297 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568312 ], "year": 1979, "pin_cites": [ { "page": "202" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0181-01" ] }, { "cite": "273 S.E.2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1981, "pin_cites": [ { "page": "241" }, { "page": "241" }, { "page": "241" }, { "page": "241" } ], "opinion_index": 0 }, { "cite": "301 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570249 ], "weight": 4, "year": 1981, "pin_cites": [ { "page": "701" }, { "page": "701" }, { "page": "701" }, { "page": "701" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0699-01" ] }, { "cite": "318 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732963 ], "weight": 3, "pin_cites": [ { "page": "175" }, { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0172-01" ] }, { "cite": "315 N.C. 103", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719732 ], "weight": 2, "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0103-01" ] } ], "analysis": { "cardinality": 973, "char_count": 26517, "ocr_confidence": 0.735, "pagerank": { "raw": 2.3156038396088342e-07, "percentile": 0.7889400115605195 }, "sha256": "2d7b59993ff1937b16c46fa0f5a14992e091fef7b7528a4dfe3f75e394e3c7ab", "simhash": "1:15a9fd22014d2852", "word_count": 4272 }, "last_updated": "2023-07-14T20:32:58.211595+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THOMASINE B. McALLISTER and EDWARD McALLISTER v. KHIE SEM HA, M.D." ], "opinions": [ { "text": "WHICHARD, Justice.\nPlaintiffs brought this action for medical malpractice and negligent infliction of emotional distress arising from defendant\u2019s alleged failure to inform plaintiffs of the results of certain blood tests he performed. The trial court granted defendant\u2019s motion to dismiss the complaint pursuant to N.C.G.S. \u00a7 1A-1, Rule 12(b)(6). The Court of Appeals reversed, and this Court granted defendant\u2019s petition for discretionary review.\nThe facts set forth herein are taken from the allegations of the complaint, which, in deciding a motion to dismiss, must be taken as true. See Forbis v. Honeycutt, 301 N.C. 699, 701, 273 S.E.2d 240, 241 (1981).\nThe complaint alleges that defendant is a duly licensed physician practicing family medicine. Plaintiffs, husband and wife, had a baby boy on 8 May 1991. In June 1991, plaintiffs received a letter from the State Health Department advising them that they needed to be tested for sickle-cell disease because of genetic traits carried by plaintiff-wife which their son could have inherited.\nPlaintiffs went to the medical offices of defendant, where blood was drawn and sent to the State Laboratory of Public Health. Defendant told plaintiffs that if there was anything to be concerned about, he would call them, and that if they did not hear from him, there was no cause for concern. Plaintiffs never heard from defendant on the test results, even though plaintiff-wife visited defendant for minor ailments approximately four times between June 1991 and September 1993.\nIn September 1993, plaintiff-wife became pregnant with plaintiffs\u2019 second child. Plaintiffs\u2019 second son was bom on 27 May 1994. In June 1994, plaintiffs learned that their second son had Hemoglobin 0 Arab, a sickle-cell disease. Plaintiffs further learned that the results of the 1991 blood tests showed that plaintiff-husband carried the O Arab factor sickle cell. Plaintiffs allege that the traits carried by plaintiff-wife combined with the factor carried by plaintiff-husband put the couple at a one-in-four risk of bearing a child with sickle-cell disease.\nPlaintiffs have had to carry their child to Duke Medical Center for testing and procedures, and he has been placed on daily medication until he reaches five years of age. Plaintiff-wife has been unable to sleep through the night because of her fear that her child would stop breathing or would have other problems. This lack of sleep has prevented plaintiff-wife from attaining peak performance in her job as a school teacher. Both plaintiffs have missed work because of the requirements of caring for their child.\nThe complaint further alleges defendant was negligent in one or more of the following respects: (1) failure to communicate the results of the blood tests to plaintiffs; (2) failure to have adequate procedural safeguards to ensure that test results were properly communicated to patients; (3) breach of \u201cthe appropriate standards of practice for physicians practicing in Red Springs, or similar communities in 1991, with the same or similar training [and] experience as Defendant\u201d; (4) failure \u201cto use his best medical judgment\u201d; and (5) failure \u201cto use reasonable care and diligence in the application of his knowledge and skill to the plaintiffs\u2019 care and treatment.\u201d\nPlaintiffs further allege that because of defendant\u2019s negligence, they never received any genetic counseling to prepare them for being the parents of a child with sickle-cell disease and were deprived of the opportunity to make an informed decision regarding whether to have another child. The complaint also alleges that defendant\u2019s actions \u201camounted to extreme and outrageous conduct that amounts to a wanton and reckless disregard of the rights and safety of the Plaintiffs.\u201d Finally, plaintiffs allege that defendant\u2019s negligence caused them \u201cextreme mental and emotional distress, and financial loss.\u201d\nThis case is before the Court on a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to N.C.G.S. \u00a7 1A-1, Rule 12(b)(6). \u201cA complaint is sufficient to withstand a motion to dismiss where no insurmountable bar to recovery on the claim alleged appears on the face of the complaint and where allegations contained therein are sufficient to give a defendant notice of the nature and basis of plaintiffs\u2019 claim so as to enable him to answer and prepare for trial.\u201d Forbis, 301 N.C. at 701, 273 S.E.2d at 241. Further, \u201cwhen the allegations in the complaint give sufficient notice of the wrong complained of[,] an incorrect choice of legal theory should not result in dismissal of the claim if the allegations are sufficient to state a claim under some legal theory.\u201d Stanback v. Stanback, 297 N.C. 181, 202, 254 S.E.2d 611, 625 (1979). \u201cA complaint may be dismissed pursuant to Rule 12(b)(6) if no law exists to support the claim made, if sufficient facts to make out a good claim are absent, or if facts are disclosed which will necessarily defeat the claim.\u201d Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990).\nPlaintiffs here allege two claims in their complaint, one for medical malpractice and the other for negligent infliction of emotional distress. We address each in turn in light of the above standard of review.\nThe scope of a physician\u2019s duty to his patient, the basis of any medical malpractice claim, was succinctly described by Justice Higgins in Hunt v. Bradshaw, 242 N.C. 517, 88 S.E.2d 762 (1955), as follows:\nA physician or surgeon who undertakes to render professional services must meet these requirements: (1) He must possess the degree of professional learning, skill and ability which others similarly situated ordinarily possess; (2) he must exercise reasonable care and diligence in the application of his knowledge and skill to the patient\u2019s case; and (3) he must use his best judgment in the treatment and care of his patient. If the physician or surgeon lives up to the foregoing requirements he is not civilly liable for the consequences. If he fails in any one particular, and such failure is the proximate cause of injury and damage, he is liable.\nId. at 521-22, 88 S.E.2d at 765 (citations omitted). The requirement has been refined such that the physician is now required to provide care \u201cin accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.\u201d N.C.G.S.'\u00a7 90-21.12 (1997). See Jackson v. Bumgardner, 318 N.C. 172, 175, 347 S.E.2d 743, 745 (1986).\nDefendant does not argue that plaintiffs have failed to allege sufficient facts to support a medical malpractice claim. Rather, he contends that plaintiffs have stated a claim for a particular type of medical malpractice which is not recognized in North Carolina, a claim generally referred to as \u201cwrongful birth.\u201d In Azzolino v. Dingfelder, 315 N.C. 103, 337 S.E.2d 528 (1985), cert. denied, 479 U.S. 835, 93 L. Ed. 2d 75 (1986), this Court considered a case in which the plaintiffs alleged that the defendants were negligent in their prenatal care of the plaintiff-mother by failing to properly advise her regarding the availability of amniocentesis and genetic counseling. Id. at 105, 337 S.E.2d at 530. The plaintiffs further alleged that had they been properly advised, they would have had amniocentesis performed and would have discovered that their child would suffer from Down\u2019s syndrome. The plaintiffs alleged that had they been aware of this outcome, they would have chosen to terminate the pregnancy via abortion. Id,.\nThe Court observed that \u201c[t]he jurisdictions which have reached the merits of claims for wrongful birth currently appear to be almost unanimous in their recognition of them when but for the defendants\u2019 negligence, the parents would have terminated the defective fetus by abortion.\u201d Id. at 110, 337 S.E.2d at 533. The Court noted, however, that in order to allow recovery for such claims, courts must hold \u201cthat the existence of a human life can constitute an injury cognizable at law.\u201d Id. at 111, 337 S.E.2d at 534. The Court concluded: \u201cWe are unwilling to take any such step because we are unwilling to say that life, even life with severe defects, may ever amount to a legal injury.\u201d Id.\nDefendant argues that the Court\u2019s refusal in Azzolino to recognize a claim for wrongful birth precludes the claim in this case. Defendant argues that because plaintiffs are seeking damages in connection with the birth of an impaired child, their claim is one for wrongful birth and thus is not actionable. We disagree.\nThe case of Jackson v. Bumgardner, 318 N.C. 172, 347 S.E.2d 743, is instructive in the analysis of defendant\u2019s contentions. In Jackson the Court addressed a situation in which the plaintiffs brought a medical malpractice claim against the defendant-doctor based on his failure to replace the plaintiff-mother\u2019s intrauterine device (IUD) following surgery. Id. at 174, 347 S.E.2d at 744-45. The plaintiffs alleged that before surgery, they informed the defendant that they could not afford to have another child and that they were relying on the IUD to prevent pregnancy. Id. at 174, 347 S.E.2d at 745. The plaintiffs further alleged that the defendant assured them he would replace the IUD if it became necessary to remove it during surgery. Following surgery, the plaintiffs believed they continued to be protected from pregnancy by the IUD. After plaintiff-mother became pregnant, however, they discovered that the defendant had not in fact retained or replaced her IUD. Id.\nThe defendant in Jackson, like defendant here, argued that Azzolino precluded the plaintiffs\u2019 claim. Id. at 179-80, 347 S.E.2d at 748. As in the case at bar, the trial court dismissed the plaintiffs\u2019 claim pursuant to N.C.G.S. \u00a7 1A-1, Rule 12(b)(6). Id. at 174, 347 S.E.2d at 745. This Court there concluded, as we do here, that Azzolino did not require dismissal of the plaintiffs\u2019 claim. Id. at 180-82, 347 S.E.2d at 748-49. The Court observed that the facts alleged by the plaintiffs in Jackson were similar to those constituting a claim recognized in other jurisdictions and generally referred to as \u201cwrongful conception\u201d or \u201cwrongful pregnancy.\u201d Id. at 178-79, 347 S.E.2d at 747. The Court stated:\nOur survey shows that the vast majority of courts which have considered wrongful conception cases have viewed the case as being indistinguishable from an ordinary medical malpractice action where the plaintiff alleges a breach of duty on the part of a physician and resulting injury for failure to perform that duty. ... We find both the reasoning and the results of these authorities quite persuasive.\nId. at 179, 347 S.E.2d at 747-48. The Court distinguished Azzolino by observing that \u201cthe injury alleged in Azzolino was the continued existence of the deformed fetus,\u201d -id. at 180, 347 S.E.2d at 748, whereas in Jackson it was \u201cthe fact of the pregnancy as a medical condition that [gave] rise to compensable damages and complete [d] the elements for a claim of negligence,\u201d id. at 181, 347 S.E.2d at 748. The Court concluded by stating: \u201c[W]e find that plaintiffs complaint contains sufficient allegations to withstand defendant\u2019s motion to dismiss pursuant to Rule 12(b)(6) on plaintiff wife\u2019s claim for medical malpractice. We also hold that her claim is one that is recognizable in this State.\u201d Id. at 182, 347 S.E.2d at 749.\nIn the case at bar, plaintiffs alleged in their complaint that defendant was negligent in his failure to report the results of the blood tests he performed, that plaintiffs were unable to make an informed choice regarding whether to conceive another child as a result, and that plaintiff-wife did in fact become pregnant and give birth to another child. Plaintiffs further specifically alleged that defendant breached the appropriate standards of medical practice in the care he provided plaintiffs. The complaint does not allege that plaintiffs\u2019 son\u2019s very existence \u2014 the injury the Court declined to recognize in Azzolino \u2014 is an injury for which they should be compensated. Thus, the claim is not one precluded by Azzolino. Defendant makes no argument, and we perceive no reason to hold, that plaintiffs\u2019 allegations are insufficient to give him \u201cnotice of the nature and basis of plaintiffs\u2019 claim so as to enable him to answer and prepare for trial,\u201d or that there appears on the face of plaintiffs\u2019 complaint an \u201cinsurmountable bar to recovery on the claim alleged.\u201d Forbis, 301 N.C. at 701, 273 S.E.2d at 241. Therefore, we hold that plaintiffs have stated a claim for medical malpractice sufficient to survive a motion to dismiss pursuant to N.C.G.S. \u00a7 1A-1, Rule 12(b)(6). We express no opinion as to whether defendant\u2019s alleged negligence actually caused any injury to plaintiffs. That is an issue to be resolved by the trier of fact. See Williams v. Carolina Power & Light Co., 296 N.C. 400, 403, 250 S.E.2d 255, 258 (1979) (\u201c \u2018[P]roximate cause is ordinarily a question of fact for the jury, to be solved by the exercise of good common sense in the consideration of the evidence of each particular case.\u2019 \u201d) (quoting William L. Prosser, Torts \u00a7 45 (4th ed. 1971)).\nWe turn next to plaintiffs\u2019 claim for negligent infliction of emotional distress. This Court examined the nature of such a claim at length in Johnson v. Ruark Obstetrics & Gynecology Assoc., P.A., 327 N.C. 283, 395 S.E.2d 85 (1990). The Court explained:\n[T]o 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. Although an allegation of ordinary negligence will suffice, a plaintiff must also allege that severe emotional distress was the foreseeable and proximate result of such negligence in order to state a claim; mere temporary fright, disappointment or regret will not suffice. In this context, the term \u201csevere emotional distress\u201d means any emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so.\n. . . Further, a plaintiff may recover for his or her severe emotional distress arising due to concern for another person, if the plaintiff can prove that he or she has suffered such severe emotional distress as a proximate and foreseeable result of the defendant\u2019s negligence.\n. . . Questions of foreseeability and proximate cause must be determined under all the facts presented, and should be resolved on a case-by-case basis by the trial court and, where appropriate, by a jury.\nId. at 304-05, 395 S.E.2d at 97-98 (citations omitted). The Court concluded:\nThe plaintiffs here allege that they were the parents of the fetus which allegedly died as a result of the defendants\u2019 negligence and were in close proximity to and observed many of the events surrounding the death of the fetus and its stillbirth. We conclude that these plaintiffs may proceed with their action for severe emotional distress.\nId. at 306, 395 S.E.2d at 98.\nPlaintiffs here alleged that plaintiff-wife became pregnant and gave birth to a child with sickle-cell disease as a result of defendant\u2019s negligence. Plaintiffs alleged that defendant\u2019s negligence caused them \u201cextreme mental and emotional distress,\u201d specifically referring to plaintiff-wife\u2019s fears regarding her son\u2019s health and her resultant sleeplessness. Like the allegations in Johnson, plaintiffs\u2019 allegations here, while sparse, are sufficient to state a claim for negligent infliction of emotional distress. The allegations \u201care sufficient to give . . . defendant notice of the nature and basis of plaintiffs\u2019 claim so as to enable him to answer and prepare for trial.\u201d Forbis, 301 N.C. at 701, 273 S.E.2d at 241. Whether defendant\u2019s alleged negligence in fact caused either of the plaintiffs to suffer severe emotional distress is a question for the trier of fact. See Johnson, 327 N.C. at 305, 395 S.E.2d at 98; Williams, 296 N.C. at 403, 250 S.E.2d at 258. We therefore affirm the Court of Appeals decision insofar as it reversed the trial court\u2019s order dismissing plaintiffs\u2019 action for failure to state a claim upon which relief can be granted.\nDefendant next argues that the Court of Appeals erred in its conclusion regarding the damages plaintiffs may seek in their medical malpractice claim. Defendant argues that the decisions of this Court in Azzolino and Jackson prohibit plaintiffs from seeking child-rearing damages. We agree.\nAs described above, Jackson involved a situation in which the plaintiffs alleged that their physician negligently failed to replace the plaintiff-mother\u2019s IUD following 'surgery, resulting in the birth of a healthy baby. Jackson, 318 N.C. at 174, 347 S.E.2d at 744-45. Besides seeking damages for the expenses of pregnancy and birth, the plaintiffs in Jackson also sought to recover for \u201cthe general cost and maintenance of said minor child from the date of his birth until such time as he shall become of legal age or emancipated.\u201d Id. at 177, 347 S.E.2d at 746. With regard to this claim for damages, the Court stated:\n[W]e hold that plaintiff wife may recover damages for the expenses associated with her pregnancy, but that plaintiffs may not recover for the costs of rearing their child... .\n. . . [T]he decision in Azzolino v. Dingfelder would prohibit recovery of damages for the costs of rearing the child. In that case this Court held that \u201clife, even life with severe defects, cannot be an injury in the legal sense.\u201d Azzolino, 315 N.C. at 109, 337 S.E.2d at 532. Thus, to permit recovery of child-rearing expenses would be contra to both the holding and rationale of Azzolino.\nId. at 182, 347 S.E.2d at 749. This holding controls our analysis of this issue.\nPlaintiffs attempt to distinguish their damages claim from the claim in Jackson by arguing that they seek damages only for the extraordinary care involved in the treatment of their son\u2019s sickle-cell disease, as opposed to all of the expenses associated with rearing a child. We do not find this distinction availing. Rather, such extraordinary costs are simply a part of child-rearing expenses for parents rearing an impaired child. Though Jackson involved a healthy child, the Court did not distinguish between healthy and unhealthy children in its holding on this issue. In fact, the Court relied explicitly on Azzolino, a case involving a child with Down\u2019s syndrome.\nFurther, the complaint in this case is similar to the complaint of the plaintiffs in Jackson in many respects. Both involved allegations of preconception medical malpractice which allegedly resulted in each plaintiff-mother becoming pregnant and giving birth to a child. Further, both involved alleged nonfeasance by the defendant-doctor. In Jackson the alleged nonfeasance was the failure to replace the plaintiff\u2019s IUD, while in this case it was the failure to inform plaintiffs of their blood-test results.\nIt bears noting that none of these three cases \u2014 Jackson, Azzolino, or the case at bar \u2014 -involved a situation in which plaintiffs alleged that the defendant-doctor negligently injured a fetus and thus caused an otherwise normal child to be bom in an impaired condition. The child in Jackson was born without impairment. The disorder in Azzolino, Down\u2019s syndrome, and the disorder in this case, sickle-cell disease, are both genetic, and thus are not the result of any injury negligently inflicted by either defendant-doctor.\nBecause we find Jackson controlling, we disavow the Court of Appeals opinion insofar as it held that plaintiffs could seek, in their medical malpractice claim, a version of child-rearing expenses, the costs of the extraordinary care for their child.\nThe final issue involves the timeliness of plaintiffs\u2019 service on defendant of the proposed record on appeal. Plaintiffs gave notice of appeal from the trial court\u2019s order on 18 March 1996. Plaintiffs served the proposed record on appeal on defendant on 5 June 1996, seventy-eight days after giving notice of appeal. On the same date, 5 June 1996, plaintiffs filed a motion with the Court of Appeals seeking an extension of time under Rule 27(c) of the North Carolina Rules of Appellate Procedure. Plaintiffs sought an extension of time because they had not served the proposed record on appeal on defendant within the thirty-five days mandated by Rule 11(a) and (b) of the North Carolina Rules of Appellate Procedure. On 10 June 1996, the Court of Appeals granted plaintiffs\u2019 motion for an extension of time and deemed the proposed record timely served. Defendant now argues that the Court of Appeals erred by granting plaintiffs\u2019 motion.\nRule 27(c) of the North Carolina Rules of Appellate Procedure provides, in pertinent part:\nExcept as herein provided, courts for good cause shown may upon motion extend any of the times prescribed by these rules or by order of court for doing any act required or allowed under these rules; or may permit an act to be done after the expiration of such time.\nN.C. R. App. P. 27(c). When a lower court is given discretion to allow an extension of time, the court\u2019s decision on the matter will be found to be erroneous only upon a showing of an abuse of discretion. See Tinkham v. Hall, 47 N.C. App. 651, 654, 267 S.E.2d 588, 591 (1980). Defendant does not argue that the Court of Appeals abused its discretion in granting plaintiffs\u2019 Rule 27(c) motion, but rather asserts that \u201cbased on the plaintiffs\u2019 failure to comply with the time limitations set out by the applicable Appellate Rules, the plaintiffs\u2019 appeal should have never been reviewed by the Court of Appeals.\u201d We perceive no reason to hold that the Court of Appeals abused its discretion in granting plaintiffs\u2019 motion; defendant\u2019s argument on this issue is without merit.\nBecause we affirm the Court of Appeals opinion insofar as it reversed the trial court\u2019s order dismissing plaintiffs\u2019 complaint, we remand the case to the Court of Appeals for further remand to the Superior Court, Robeson County, to allow plaintiffs to proceed on their claims for medical malpractice and negligent infliction of emotional distress.\nAFFIRMED.", "type": "majority", "author": "WHICHARD, Justice." } ], "attorneys": [ "Britt & Britt, P.L.L.C., by William S. Britt, for plaintiff - appellees.", "Cranfill, Sumner & Hartzog, L.L.P., by Gregory M. Kash and Leigh Ann Gamer, for defendant-appellant.", "Patterson, Dilthey, Clay & Bryson, L.L.P., by Robert M. Clay and Charles George, on behalf of N.C. Association of Defense Attorneys, amicus curiae." ], "corrections": "", "head_matter": "THOMASINE B. McALLISTER and EDWARD McALLISTER v. KHIE SEM HA, M.D.\nNo. 298PA97\n(Filed 6 March 1998)\n1. Abortion; Prenatal or Birth-Related Injuries and Offenses \u00a7 24 (NCI4th)\u2014 medical malpractice \u2014 wrongful pregnancy \u2014 12(b)(6) dismissal \u2014 erroneous\nThe trial court erred by granting defendant\u2019s motion to dismiss a medical malpractice claim under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) where the claim arose from defendant\u2019s failure to inform plaintiffs of the results of a test for sickle-cell genetic traits before plaintiff-wife became pregnant with their second child. Although defendant contended that plaintiffs\u2019 claim is for wrongful birth because they are seeking damages in connection with the birth of their child and that the claim is thus not actionable under Azzolino v. Dingfelder, 315 N.C. 103, plaintiffs alleged that they were not able to make an informed choice regarding whether to conceive again as a result of defendant\u2019s negligence and did not allege that their son\u2019s very existence was a compensable injury, as did the plaintiffs in Azzolino. Whether defendant\u2019s alleged negligence actually caused plaintiffs any injury is to be resolved by the trier of fact.\n2. Negligence \u00a7 6 (NCI4th)\u2014 sickle-cell genetic testing \u2014 failure to convey results \u2014 subsequent pregnancy \u2014 negligent infliction of emotional distress \u2014 claim sufficiently stated\nThe trial court erred by dismissing under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) plaintiffs\u2019 claim for negligent infliction of emotional distress arising from defendant\u2019s failure to inform them of the results of genetic tests for sickle-cell disease where plaintiffs alleged that plaintiff-wife became pregnant and gave birth to a child with sickle-cell disease as a result of defendant\u2019s negligence and that defendant\u2019s negligence caused them extreme mental and emotional distress, specifically referring to plaintiff-wife\u2019s fears regarding her son\u2019s health and her resultant sleeplessness. Plaintiff\u2019s allegations, while sparse, are sufficient to state a claim; whether defendant\u2019s alleged negligence caused either of the plaintiffs to suffer severe emotional distress is a question for the trier of fact.\n3. Abortion; Prenatal or Birth-Related Injuries and Offenses \u00a7 24 (NCI4th)\u2014 wrongful pregnancy \u2014 sickle-cell disease\u2014 damages\nThe Court of Appeals incorrectly concluded that plaintiffs in a medical malpractice claim could seek a version of child-rearing expenses where plaintiffs attempted to distinguish their claim from Jackson v. Bumgardner, 318 N.C. 172, by arguing that they seek damages only for the extraordinary care involved in the treatment of their son\u2019s sickle-cell disease as opposed to all expenses associated with rearing a child. Such extraordinary costs are simply a part of child-rearing expenses for parents rearing an impaired child; furthermore, the complaint in this case is similar to the complaint in Jackson.\n4. Appeal and Error \u00a7 372 (NCI4th)\u2014 service of proposed record \u2014 extension of time granted by Court of Appeals\u2014 no abuse of discretion\nThe Court of Appeals did not abuse its discretion by granting plaintiffs\u2019 motion for an extension of time to serve the proposed record on appeal and deeming the proposed record timely served where plaintiffs served the record 78 days after giving notice of appeal and, on the same date, filed the motion seeking an extension of time.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous decision of the Court of Appeals, 126 N.C. App. 326, 485 S.E.2d 84 (1997), reversing an order allowing defendant\u2019s motion to dismiss entered 22 March 1996 by Britt (Joe Freeman), J., in Superior Court, Robeson County, and remanding for further proceedings. Heard in the Supreme Court 9 February 1998.\nBritt & Britt, P.L.L.C., by William S. Britt, for plaintiff - appellees.\nCranfill, Sumner & Hartzog, L.L.P., by Gregory M. Kash and Leigh Ann Gamer, for defendant-appellant.\nPatterson, Dilthey, Clay & Bryson, L.L.P., by Robert M. Clay and Charles George, on behalf of N.C. Association of Defense Attorneys, amicus curiae." }, "file_name": "0638-01", "first_page_order": 678, "last_page_order": 689 }