Saunders ex rel. Saunders v. United States

Opinion by Judge McKAY; Dissent by Judge FERNANDEZ.

Michael Saunders, the plaintiff, is the third child born to Mrs. Saunders. Mrs. Saunders prematurely gave birth to her first child on September 15, 1983. He died a few days later from a brain hemorrhage. On October 1, 1984, Mrs. Saunders gave birth to her second child, Brian, by caesarian section at Columbus Air Force Base Hospital in Mississippi. Brian, who was also slightly premature, survived in good health. An Air Force *484 physician performed the caesarian. In doing so, he noticed an anomaly in Mrs. Saunders’ uterus known as a “septate uterus.”

A septate uterus is a uterus that is divided by a tissue wall called a septum. This type of anomaly reduces the space in which the fetus can grow and may predispose the mother to give birth prematurely. Although the septum had always been present, the Air Force physician was the first one to discover it because Mrs. Saunders’ first child was delivered vaginally.

In December 1984, Mrs. Saunders met with the Air Force physician for a post-delivery consultation. Mrs. Saunders inquired about her chances for having additional children. The physician told her that a septate uterus does…

dissenting:

No one questions the district court’s determination that the negligence of the doctor resulted in injury to Michael, at least in the sense that Michael would not have been born but for that negligence. In that respect, Michael did carry the burden of persuasion. But the burden of persuasion on damages also rested with Michael.

If loss of earnings damages were desired, the damages could not be based upon a “wrongful life” theory. See Turpin v. Sortini, 31 Cal.3d 220, 229-30 , 182 Cal.Rptr. 337 , 643 P.2d 954 (1982); cf. Sweeney v. Preston, 642 So.2d 332 (Miss.1994). It appears that no one disputes that either.

However, the evidence did not require a determination of whether Mrs. Saunders would have had an operation and then had more children, or whether she would have simply decided not to have more children. Were it the latter, Michael’s complaint must be that he, who would not have been born at all, was bom very susceptible to the harm that quickly befell him. The district court was left in equipoise on that issue, and equipoise means that Michael cannot prevail.

I so state because I cannot agree that this case (and others like it) are prenatal injury cases as a…