Citation Numbers： 478 A.2d 755, 97 N.J. 339, 1984 N.J. LEXIS 2703
Judges： Pollock, Handler, Schreiber
Filed Date： 8/1/1984
Status： Precedential
Modified Date： 11/11/2024
The opinion of the Court was delivered by
The primary issue on this appeal is the propriety of a grant of a partial summary judgment dismissing a “wrongful life” claim brought by an infant plaintiff through his mother and guardian ad litem. That judgment, which was granted on the pleadings, dismissed the claim because it failed to state a cause of action upon which relief may be granted. R. 4:6-2(e).
The infant plaintiff, Peter Procanik, alleges that the defendant doctors, Joseph Cilio, Herbert Langer, and Ernest P. Green-berg, negligently failed to diagnose that his mother, Rosemary Proeanik, had contracted German measles in the first trimester of her pregnancy. As a result, Peter was born with congenital rubella syndrome. Alleging that the doctors negligently deprived his parents of the choice of terminating the pregnancy, he seeks general damages for his pain and suffering and for “his parents’ impaired capacity to cope with his problems.” He also seeks special damages attributable to the extraordinary expenses he will incur for medical, nursing, and other health care. The Law Division granted defendants’ motion to dismiss, and the Appellate Division affirmed in an unreported opinion.
We granted certification, 95 N.J. 176 (1983). We now conclude that an infant plaintiff may recover as special damages the extraordinary medical expenses attributable to his afflic
I
Because this matter comes before us on the grant of a motion to dismiss, we focus on the complaint, which contains three counts. In the first count, Peter, through his guardian ad litem, seeks damages for birth defects and impaired childhood; in the second count, his parents seek damages for emotional distress and extraordinary medical expenses attributable to Peter’s defects; and in the third count, his parents assert a claim for malpractice against their former attorneys. Accepting as true the plaintiff’s allegations, see, e.g., Portee v. Jaffee, 84 N.J. 88, 90 (1980), the complaint discloses the following facts.
The defendant doctors, Joseph Cilio, Herbert Langer, and Ernest P. Greenberg, are board-certified obstetricians and gynecologists who apparently conduct a group practice. On June 9, 1977, during the first trimester of her pregnancy with Peter, Mrs. Procanik consulted the defendant doctors and informed Dr. Cilio “that she had recently been diagnosed as having measles but did not know if it was German measles.” Dr. Cilio examined Mrs. Procanik and ordered “tests for German Measles, known as Rubella Titer Test.” The results “were ‘indicative of past infection of Rubella.’ ” Instead of ordering further tests, Dr. Cilio negligently interpreted the results and told Mrs. Procanik that she “had nothing to worry about because she had become immune to German Measles as a child.” In fact, the “past infection” disclosed by the tests was the German measles that had prompted Mrs. Procanik to consult the defendant doctors.
Ignorant of what an accurate diagnosis would have disclosed, Mrs. Procanik allowed her pregnancy to continue, and Peter
In April 1983, while this matter was pending in the Appellate Division, Peter moved to amend the first count to assert a claim to recover, as special damages, the expenses he will incur as an adult for medical, nursing, and related health care services. In its opinion, the Appellate Division denied without prejudice leave to amend. Although this claim was not raised before the trial court and not considered by the Appellate Division, fairness, justice, and judicial efficiency persuade us to consider the claim for special damages.
The complaint, which was filed on April 8, 1981, contains two other counts. In the second count, Peter’s parents seek damages for their emotional distress and for the extraordinary medical expenses attributable to Peter’s birth defects. Before the trial court they stipulated, however, that they knew they had a potential cause of action by January 1978, nearly three years before instituting suit. The trial court ruled, therefore, that the parents’ claim was barred by the two-year statute of limitations contained in N.J.S.A. 2A:14-2. Before us, however, the parents contend that their claim is derived from Peter’s claim and that N.J.S.A. 2A:14-2.1, which tolls the statute of limitations during infancy, protects their claim. Hence, the parents ask us to recognize their claim.
In the third count, the parents assert a claim for malpractice against their former attorneys, alleging that they consulted defendant attorney Harold A. Sherman, who undertook to ad
In Berman, 80 N.J. 421, which was decided on June 26, 1979, we recognized that parents may recover for emotional distress for the “wrongful birth” of a child born with birth defects. The defendant attorneys, however, never advised Mr. and Mrs. Procanik that they had a cause of action, and the two-year statute of limitations ran on their claim on January 16, 1980. The trial court did not rule on the attorney malpractice claim, and that issue is not before us.
II
In this case we survey again the changing landscape of family torts. See Schroeder v. Perkel, 87 N.J. 53, 71 (1981). Originally that landscape presented a bleak prospect both to children born with birth defects and to their parents. If a doctor negligently diagnosed or treated a pregnant woman who was suffering from a condition that might cause her to give birth to a defective child, neither the parents nor the child could maintain a cause of action against the negligent doctor. Gleit-man v. Cosgrove, 49 N.J. 22 (1967).
Like the present case, Gleitman involved a doctor who negligently treated a pregnant woman who had contracted German measles in the first trimester of her pregnancy. Reasoning from the premise that the doctor did not cause the infant plaintiffs birth defects, the Gleitman Court found it impossible to compare the infant’s condition if the defendant doctor had not been negligent with the infant’s impaired condition as a result of the negligence. Measurement of “the value of life
The Court denied the parents’ claim for emotional distress and the costs of caring for the infant, because of the impossibility of weighing the intangible benefits of parenthood against the emotional and monetary injuries sustained by them. Prevailing policy considerations, which included a reluctance to acknowledge the availability of abortions and the mother’s right to choose to terminate her pregnancy, prevented the Court from awarding damages to a woman for not having an abortion. Another consideration was the Court’s belief that “[i]t is basic to the human condition to seek life and hold on to it however heavily burdened.” 49 N.J. at 30.
In the seventeen years that have elapsed since the Gleitman decision, both this Court and the United States Supreme Court have reappraised, albeit in different contexts, the rights of pregnant women and their children. The United States Supreme Court has recognized that women have a constitutional right to choose to terminate a pregnancy. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Recognition of that right by the high court subsequently influenced this Court in Berman v. Allan, supra, 80 N.J. 421.
In Berman, the parents sought to recover for their emotional distress and for the expenses of raising a child born with Down’s Syndrome. Relying on Roe v. Wade, supra, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, the Court found that public policy now supports the right of a woman to choose to terminate a pregnancy. Berman v. Allan, supra, 80 N.J. at 431-32. That finding eliminated one of the supports for the Gleitman decision — i.e., that public policy prohibited an award for depriving a woman of the right to choose whether to have an abortion. Finding that a trier of fact could place a dollar value on the parents’ emotional suffering, the Berman Court concluded “that the monetary equivalent of this distress is an appropri
Nonetheless, the Court rejected the parents’ claim for “medical and other expenses that will be incurred in order to properly raise, educate and supervise the child.” Id. at 432. The Court reasoned that the parents wanted to retain “all the benefits inhering in the birth of the child — i.e., the love and joy they will experience as parents — while saddling defendants with enormous expenses attendant upon her rearing.” Id. Such an award would be disproportionate to the negligence of the defendants and constitute a windfall to the parents. Id.
The Berman Court also declined to recognize a cause of action in an infant born with birth defects. Writing for the Court, Justice Pashman reasoned that even a life with serious defects is more valuable than non-existence, the alternative for the infant plaintiff if his mother chose to have an abortion. Id. at 429.
More recently we'advanced the parents’ right to compensation by permitting recovery of the extraordinary expenses of raising a child born with cystic fibrosis, including medical, hospital, and pharmaceutical expenses. Schroeder v. Perkel, supra, 87 N.J. at 68-69. No claim on behalf of the infant was raised in that case, id. at 61, and we elected to defer consideration of such a claim until another day. Id. at 66. That day is now upon us, and we must reconsider the right of an infant in a “wrongful life” claim to recover general damages for diminished childhood and pain and suffering, as well as special damages for medical care and the like.
Ill
The terms “wrongful birth” and “wrongful life” are but shorthand phrases that describe the causes of action of parents and children when negligent medical treatment deprives parents of the option to terminate a pregnancy to avoid the birth of a defective child. See Schroeder v. Perkel, supra,
Both causes of action are distinguishable from the situation where negligent injury to a fetus causes an otherwise normal child to be born in an impaired condition. See, e.g., Smith v. Brennan, 31 N.J. 353 (1960); W. Prosser, Law of Torts § 55 at 335-38 (4th ed. 1971). In the present case, the plaintiffs do not allege that the negligence of the defendant doctors caused the congenital rubella syndrome from which the infant plaintiff suffers. Neither do plaintiffs claim that the infant ever had a chance to be a normal child. The essence of the infant’s claim is that the defendant doctors wrongfully deprived his mother of information that would have prevented his birth.
Analysis of the infant’s cause of action begins with the determination whether the defendant doctors owed a duty to him. The defendant doctors do not deny they owed a duty to the infant plaintiff, and we find such a duty exists. See Berman v. Allan, supra, 80 N.J. at 444 (Handler, J., concurring and dissenting); Gleitman v. Cosgrove, supra, 49 N.J. at 50 (Jacobs, J., dissenting). In evaluating the infant’s cause of action, we assume, furthermore, that the defendant doctors were negligent in treating the mother. Moreover, we assume that their negligence deprived the parents of the choice of
Notwithstanding recognition of the existence of a duty and its breach, policy considerations have led this Court in the past to decline to recognize any cause of action in an infant for his wrongful life. The threshold problem has been the assertion by infant plaintiffs not that they should not have been born without defects, but that they should not have been born at all. Gleitman v. Cosgrove, supra, 49 N.J. at 28. The essence of the infant’s cause of action is that its very life is wrongful. Berman v. Allan, supra, 80 N.J. at 427. Resting on the belief that life, no matter how burdened, is preferable to non-existence, the Berman Court stated that the infant “has not suffered any damage cognizable at law by being brought into existence.” Id. at 429. Although the premise for this part of the Berman decision was the absence of cognizable damages, the Court continued to be troubled, as it was in Gleitman, by the problem of ascertaining the measure of damages. Id. at 428.
The courts of other jurisdictions have also struggled with the issues of injury and damages when faced with suits for wrongful life. Although two intermediate appellate courts in New York and California recognized an infant’s claim for general damages, those decisions were rejected by the courts of last resort in both jurisdictions. In two decisions, Becker v. Schwartz, 60 A.D.2d 587, 400 N.Y.S.2d 119 (1977), and Park v. Chessin, 60 A.D.2d 80, 400 N.Y.S.2d 110 (1977), the Appellate Division of the New York Supreme Court held that a claim for wrongful life stated a valid cause of action. The Court of Appeals reversed, reasoning that an infant does not have a right to be born as a whole functioning human being and that it is beyond judicial competence to ascertain whether the infant has suffered any injury by being born. Becker v. Schwartz, 46 N.Y.2d 401, 411, 413 N.Y.S.2d 895, 900, 386 N.E.2d 807, 812 (1978). Similarly, the California Supreme Court overruled a Court of Appeal’s holding that an infant plaintiff could recover
Other courts have uniformly found that the problems posed by the damage issues in wrongful life claims are insurmountable and have refused to allow the action on behalf of the infant. See, e.g., Gildiner v. Thomas Jefferson Univ. Hosp., 451 F.Supp. 692, 694 (E.D.Pa.1978) (applying Pennsylvania law); Moores v. Lucas, 405 Po.2d 1022, 1025 (Fla.Dist.Ct.App.1981); Eisbrenner v. Stanley, 106 Mich.App. 357, 308 N.W.2d 209, 211-13 (Ct.App.1981); Speck v. Finegold, 497 Pa. 77, 439 A.2d 110 (1981) (evenly divided court affirming 268 Pa.Super. 342, 408 A.2d 496, 508 (1979)); Dumer v. St. Michael’s Hosp., 69 Ms.2d 766, 233 N.W.2d 372, 375-76 (1975).
Even when this Court declined to recognize a cause of action for wrongful life in Gleitman and Berman, dissenting members urged recognition of that claim. Justice Jacobs wrote in Gleitman that a wrong has been committed and that the law “can afford some reasonable measure of compensation towards alleviating the financial burdens.” 49 N.J. at 49. He described the claim for emotional distress as “incalculable,” but found “the medical and maintenance expenses causally related to the abnormality” to be “readily measurable.” Id. at 50. Although the Berman Court found the determination of damages to be “humanly impossible,” it recognized the possibility that, if the measure of damages were the only concern, “some judicial remedy could be fashioned which would redress plaintiff, if only in part, for injuries suffered.” 80 N.J. at 428. While recognizing “the measurement of damages for nonphysical injury is at best elusive and complex,” id. at 437, Justice Handler has espoused recognition of an infant’s claim in his' separate opinions in Schroeder v. Perkel, supra, 87 N.J. at 72, and Berman v. Allan, supra, 80 N.J. at 434. Extending through these opinions is an awareness that damages would be appropriate if they were measurable by acceptable standards.
The foreseeability of injury to members of a family other than one immediately injured by the wrongdoing of another must be viewed in light of the legal relationships among family members. A family is woven of the fibers of life; if one strand is damaged, the whole structure may suffer. The filaments of family life, although individually spun, create a web of interconnected legal interests. This Court has recognized that a wrongdoer who causes a direct injury to one member of the family may indirectly damage another. [Id. at 63-64.]
When a child requires extraordinary medical care, the financial impact is felt not just by the parents, but also by the injured child. As a practical matter, the impact may extend beyond the injured child to his brothers or sisters. Money that is spent for the health care of one child is not available for the clothes, food, or college education of another child.
Recovery of the cost of extraordinary medical expenses by either the parents or the infant, but not both, is consistent with the principle that the doctor’s negligence vitally affects the entire family. Gleitman, supra, 49 N.J. at 50 (Jacobs, J., dissenting). As Justice Jacobs stated in Gleitman:
And while logical objection may be advanced to the child’s standing and injury, logic is not the determinative factor and should not be permitted to obscure that he has to bear the frightful weight of his abnormality throughout life, and that such compensation as is received from the defendants or either of them should be dedicated primarily to his care and the lessening of his difficulties. Indeed, if this were suitably provided for in the ultimate judgment, the technical presence or absence of the child as an additional party plaintiff would have little significance, [id.]
Law is more than an exercise in logic, and logical analysis, although essential to a system of ordered justice, should not become a instrument of injustice. Whatever logic inheres in permitting parents to recover for the cost of extraordinary medical care incurred by a birth-defective child, but in denying the child’s own right to recover those expenses, must yield to
The present case proves the point. Here, the parents’ claim is barred by the statute of limitations. Does this mean that Peter must forego medical treatment for his blindness, deafness, and retardation? We think not. His claim for the medical expenses attributable to his birth defects is reasonably certain, readily calculable, and of a kind daily determined by judges and juries. We hold that a child or his parents may recover special damages for extraordinary medical expenses incurred during infancy, and that the infant may recover those expenses during his majority.
Our decision is consistent with recent decisions of the Supreme Courts of California and Washington. The Supreme Court of California has held that special damages related to the infant’s birth defects may be recovered in a wrongful life suit. Turpin v. Sortini, supra, 31 Cal.3d at 238, 643 P.2d at 965, 182 Cal.Rptr. at 348. Following Turpin, the Supreme Court of Washington has held that either the parents or the child may recover special damages for medical and other extraordinary expenses incurred during the infant’s minority, and that the child may recover for those costs to be incurred during majority. Harbeson v. Parke-Davis, 98 Wash.2d 460, 656 P.2d 483 (1983).
In restricting the infant’s claim to one for special damages, we recognize that our colleagues, Justice Schreiber and Justice Handler, disagree with us and with each other. From the premise that “man does not know whether non-life would have been preferable to an impaired life,” at 369, Justice Schreiber concludes that a child does not have a cause of action for wrongful life and, therefore, that it is “unfair and unjust to
We find, however, that the infant’s claim for pain and suffering and for a diminished childhood presents insurmountable problems. The philosophical problem of finding that such a defective life is worth less than no life at all has perplexed not only Justice Schreiber, but such other distinguished members of this Court as Chief Justice Weintraub, Gleitman, supra, 49 N.J. at 63 (Weintraub, C.J., dissenting in part), Justice Proctor, Gleitman, supra, 49 N.J. at 30, and Justice Pashman, Berman v. Allan, supra, 80 N.J. at 429. We need not become preoccupied, however, with these metaphysical considerations. Our decision to allow the recovery of extraordinary medical expenses is not premised on the concept that non-life is preferable to an impaired life, but is predicated on the needs of the living. We seek only to respond to the call of the living for help in bearing the burden of their affliction.
Sound reasons exist not to recognize a claim for general damages. Our analysis begins with the unfortunate fact that the infant plaintiff never had a chance of being born as. a normal, healthy child. Tragically, his only choice was a life burdened with his handicaps or no life at all. The congenital rubella syndrome that plagues him was not caused by the negligence of the defendant doctors; the only proximate result of their negligence was the child’s birth.
The crux of the problem is that there is no rational way to measure non-existence or to compare non-existence with the pain and suffering of his impaired existence. Whatever theoretical appeal one might find in recognizing a claim for pain and suffering is outweighed by the essentially irrational and unpredictable nature of that claim. Although damages in a personal
Underlying our conclusion is an evaluation of the capability of the judicial system, often proceeding in these cases through trial by jury, to appraise such a claim. Also at work is an appraisal of the role of tort law in compensating injured parties, involving as that role does, not only reason, but also fairness, predictability, and even deterrence of future wrongful acts. In brief, the ultimate decision is a policy choice summoning the most sensitive and careful judgment.
From that perspective it is simply too speculative to permit an infant plaintiff to recover for emotional distress attendant on birth defects when that plaintiff claims he would be better off if he had not been born. Such a claim would stir the passions of jurors about the nature and value of life, the fear of non-existence, and about abortion. That mix is more than the judicial system can digest. We believe that the interests of fairness and justice are better served through more predictably measured damages — the cost of the extraordinary medical expenses necessitated by the infant plaintiffs handicaps. Damages so measured are not subject to the same wild swings as a claim for pain and suffering and will carry a sufficient sting to deter future acts of medical malpractice.
As speculative and uncertain as is a comparison of the value of an impaired life with non-existence, even more problematic is the evaluation of a claim for diminished childhood. The essential proof in such a claim is that the doctor’s negligence deprives the parents of the knowledge of the condition of the fetus. The deprivation of that information precludes the choice of terminating the pregnancy by abortion and leaves the parents unprepared for the birth of a defective child, a birth that causes them emotional harm. The argument proceeds that the parents are less able to love and care for the child, who thereby suffers an impaired childhood. Schroeder v. Perkel, supra, 87 N.J at 72 (Handler, J., concurring and dissenting); Berman v.
Several considerations lead us to decline to recognize a cause of action for impaired childhood. At the outset, we note the flaw in such a claim in those instances in which the parents assert not that the information would have prepared them for the birth of the defective child, but that they would have used the information to prevent that birth. Furthermore, even its advocates recognize that a claim for “the kind of injury suffered by the child in this context may not be readily divisible from that suffered by her wronged parents.” Berman v. Allan, supra, 80 N.J. at 445 (Handler, J., concurring and dissenting). We believe the award of the cost of the extraordinary medical care to the child or the parents, when combined with the right of the parents to assert a claim for their own emotional distress, comes closer to filling the dual objectives of a tort system: the compensation of injured parties and the deterrence of future wrongful conduct.
The final issue is whether the time-barred claim of Mr. and Mrs. Procanik may be revived as a claim that derives from the infant’s timely action. At one time Mr. and Mrs. Procanik had independent claims for their emotional distress, Berman v. Allan, supra, 80 N.J. 421 and for the extraordinary medical expenses arising from Peter’s multiple birth defects. Schroeder v. Perkel, supra, 87 N.J. 53.
The trial court ruled that the parents’ claims were barred by the two-year period of limitations contained in N.J. S.A. 2A:14-2. Although the parents recognize that their claim, if viewed as independent, is time-barred, they contend that the claim should be viewed as derivative from the infant’s claim and, therefore, that it should not have been dismissed. In making that contention, they rely on N.J.S.A. 2A:14-2.1, which pertains to'a parent who “has a claim for damages suffered by him because of an injury to a minor child caused by the wrongful act, neglect or default of any person * * A
Our decision today recognizes Peter’s right to recover the extraordinary expenses necessitated by his birth defects and also recognizes that the parents, even if they had instituted a timely action, could not recover a second time for those expenses. Finally, Peter’s right to recover the costs of his health care is separate from his parent’s claim for their own pain and suffering, and recognition of Peter’s right to recover does not resuscitate the expired independent claim of the parents.
The judgment of the Appellate Division is affirmed in part, reversed in part, and the matter is remanded to the Law Division. The infant plaintiff shall have leave to file an amended complaint asserting a claim for extraordinary medical, hospital, and other health care expenses.