Page:Wilbur v. Kerr, 275 Ark. 239 (1982).pdf/6

244 answered in terms of dollars and cents. We are also convinced that the damage to the child will be significant; that being an unwanted or "emotional bastard," who will some day learn that its parents did not want it and, in fact, went to court to force someone else to pay for its raising, will be harmful to that child. It will undermine society's need for a strong and healthy family relationship. We have not become so sophisticated a society to dismiss that emotional trauma as nonsense.

We do not say that a doctor performing such a negligent act should not have to pay for that act. He would be responsible for any and all proper damages connected with the operation and connected with the pregnancy. Wilczynski v. Goodman, supra. We join those courts which recognize these as valid damages that may be recovered in such cases. It is the expense of raising an unwanted, healthy child that we find should not be allowed. We must deny that claim as against public policy.

Affirmed.

A, C.J., and D, J., dissent.

R H. D, Justice, dissenting. The issue is whether public policy should be invoked to prevent a common law cause of action against a doctor who is admittedly negligent in a surgical attempt at vasectomy.

It was resolved at common law, first in a line of specific, reasoned decisions, that a tortfeasor should be liable for his negligence. Those specific decisions built, by gradual accretion, to the principle of law that a tortfeasor is liable for all damages flowing from the negligent act. That principle became the major premise from which conclusions are now deduced. See Aldisert, The Nature of the Judicial Process: Revisited, 49 U. of Cincinnati L. Rev. 1 (1980). Today, in the case at bar, the majority declines to deduce liability from the major premise of liability for a negligent act and invokes public policy as the rationale to avoid years of well-settled common law.