Loftus, J.c.c., Temporarily Assigned.
[136 NJSuper Page 71] This is an action brought by plaintiffs Emelina and Lawrence Betancourt, husband and wife, against defendants Dr. E. Leslie Gaylor, Planned Parenthood Essex County, Hospital Center at Orange and Dr. Shigeo Kondo. The action seeks money damages for the alleged negligence of defendants with regard to the failure of a sterilization operation performed on Mrs. Betancourt. The complaint generally makes a demand of judgment against defendants jointly and severally, together with costs of suit. In answers to interrogatories propounded by defendants, plaintiffs allege as a measure of damages the costs, emotional upset and physical inconvenience of rearing the child born subsequent to the allegedly negligent sterilization operation. Defendants moved for summary judgment dismissing the complaint. This motion was
amended nunc pro tunc to dismiss only those allegations of the complaint as set forth in answers to interrogatories alleging as damages the costs, emotional upset and physical inconvenience of rearing the child in question.
A motion for summary judgment of dismissal concedes, for purposes of the motion, the truth of plaintiffs' evidence and every inference that can legitimately be drawn therefrom which is favorable to plaintiff and denies only its sufficiency in law. Melone v. Jersey Central Power and Light Co. , 18 N.J. 163, 170 (1955); Heavener v. Uniroyal, Inc. , 63 N.J. 130, 133 (1973); Hirsch v. Travelers Ins. Co. , 134 N.J. Super. 466 (App. Div. 1975).
Plaintiffs' evidence and all the legitimate inferences therefrom indicate that on August 17, 1971 Mrs. Betancourt contacted defendant Planned Parenthood in order to avail herself of its family planning services and medical care. On its recommendation she was referred to Dr. E. Leslie Gaylor, who performed the sterilization operation (a bilateral tubal ligation) on plaintiff, Mrs. Betancourt. Defendant Dr. Kondo acted in his capacity as a pathologist on the staff of defendant Hospital Center at Orange, and examined the tissue removed from plaintiff. Some 18 months later, in March 1973, plaintiff ascertained that she was pregnant. She subsequently gave birth to a healthy, normal child.
Defendants rely upon the case of Gleitman v. Cosgrove , 49 N.J. 22 (1967), in support of their motion to dismiss those allegations of the complaint as set forth in answers to interrogatories which seek as money damages the costs, emotional upset and physical inconvenience of rearing the child born subsequent to the allegedly negligent sterilization. Gleitman was an action brought on behalf of an infant and his parents against the defendant physicians for malpractice. The allegations of negligence in that case were that the doctors had failed to advise Mrs. Gleitman of the likelihood that she might give birth to a deformed child because of her contraction of rubella (German measles)
early during her pregnancy. As a result of this alleged negligence Mrs. Gleitman did not seek a therapeutic abortion and subsequently gave birth to a deformed child. The trial judge dismissed all counts of the complaint without submitting any of them to the jury. With regard to the claim by the parents for compensatory damages, our Supreme Court, in an opinion expressing the views of three of the seven members of the court, held that denial of the claim for damages was required on the one hand, because substantial policy reasons prevented the court from allowing tort damages for the denial of the opportunity to take an embryonic life and, secondly, and of principal relevancy to the case before us, because compensatory damages were too uncertain to be awarded. The court stated:
In order to determine their compensatory damages a court would have to evaluate the denial to them of the intangible, unmeasurable, and complex human benefits of motherhood and fatherhood and weigh these against the alleged emotional and money injuries. Such a proposed weighing is similar to that which we have found impossible to perform for the infant plaintiff. When the parents say their child should not have been born, they make it impossible for a court to measure their damages in being the mother and father of a defective child. [at 29 and 30]
The Gleitman court denied damages to plaintiff parents on the ground that the doctors' failure to advise plaintiff mother of the availability of an abortion was not actionable at law at a time when abortions were unlawful in New Jersey. The court concluded that the benefits in being the parents of a defective child, as weighed against the emotional losses involved, were so complex and intertwined as not to be capable of measurement. The question before this court is whether the decision in Gleitman is controlling in the circumstances of the present case.
At the outset, the factual distinction between the case before this court and Gleitman v. Cosgrove should be noted. Mrs. Gleitman, upon first consulting with her doctor, had
already conceived a child. Mrs. Betancourt, however, had not been pregnant when she first consulted defendants. Rather, she consulted defendants for the clear purpose of preventing conception. There was no evidence that Mrs. Gleitman did not wish to conceive a child. The complaint of Mrs. Gleitman was that she wished to be assured of a healthy child or no child at all. Mrs. Betancourt, when consulting her doctors, sought to prevent any conception at all. In addition, it should be noted that the thrust of Mrs. Gleitman's complaint was that her doctor negligently failed to give her advice where it was questionable whether such advice was within her doctor's duty to give. However, Mrs. Betancourt's complaint is that her doctor performed surgery upon her in a ...