Medical Malpractice: Recovery of Damages in California Wrongful Pregnancy Action

Author: Pari Granum

Courts were originally hesitant to recognize causes of action by parents alleging unwanted pregnancies, and subsequent births, resulting from negligently-performed abortions or sterilizations, such as vasectomies or tubal ligation. However, following the recognition of a person’s constitutional right to undergo an abortion or use contraceptives, the majority of courts today allow such causes of action, including California. Some jurisdictions limit recovery to parents of an impaired child against a doctor who has performed an unsuccessful sterilization/abortion procedure or improperly prescribed birth control. Other courts have limited recovery to the expenses and anxieties related to the unexpected pregnancy, but have disallowed recovery for the economic costs of child-rearing.

California courts permit full recovery of expenses related to both unwanted pregnancies and child-rearing for both healthy and impaired children.  In Custodio v. Bauer (1967) 251 Cal. App.2d 303, the California Court of Appeals found a negligently performed sterilization procedure that leads to the birth of a child, either healthy or disabled, can form the basis of a wrongful birth action. Parents may recover damages in accordance with ordinary tort principles of negligence and/or breach of contract or warranty.  In Stills v. Gratton (1976) 55 Cal.App.3d 698, the California Court of Appeals held the same principles apply in cases involving an unsuccessful abortion procedure.

In Custodio, plaintiffs sought to recover damages resulting from an unwanted pregnancy following a failed sterilization procedure.  Plaintiff underwent a procedure to have her fallopian tubes removed because she was told by her physicians the procedure would improve the physical repair of her kidney and bladder in addition to her emotional state. Plaintiff also wished to be sterilized because she already had nine children.  Plaintiffs appealed from a judgement of dismissal entered without leave to amend by the trial court. Defendants claimed pregnancy, the ensuing birth of a child, and the costs and expenses of delivering and rearing a child, are not legally cognizable injuries. They further claimed plaintiffs failed to assert an action for breach of contract because there is no warranty of a cure in a contract for medical services.

Nevertheless, the Court of Appeals found the mental suffering attendant to the unexpected pregnancy, the complications that may result, and the birth of a child are all foreseeable consequences of the failed operation. While courts in California permit full recovery of expenses related to the pregnancy and rearing of the child, a jury may take into account the special benefits inherent in the parent-child relationship as an offset to the award of damages to the parent plaintiffs. Morris v. Frudenfeld (1982) 135 Cal.App.3d 23.

ABOUT THE AUTHOR: Pari H. Granum is an associate at Tyson & Mendes. Ms. Granum specializes in personal injury and premises liability litigation. Contact Pari at 858.263.4067 or

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