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Berman v. Allan

Decided: June 26, 1979.


On certification to the Superior Court, Law Division, Bergen County.

For affirmance as to infant and reversal and remandment as to parents -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford and Schreiber. For reversal as to infant and reversal and remandment as to parents -- Justice Handler. The opinion of the court was delivered by Pashman, J. Handler, J., concurring in part and dissenting in part.


In Gleitman v. Cosgrove, 49 N.J. 22 (1967), decided 12 years ago, this Court refused to recognize as valid causes of action either a claim for "wrongful life" asserted on behalf of a physically deformed infant or a claim for "wrongful birth" put forth by the infant's parents. Both prayers for relief were premised upon the allegation that had the physician treating Mrs. Gleitman during her pregnancy followed standard medical practice, an abortion would have been procured and the child would never have come into existence. In this case, we are called upon to assess the continued validity of both of our holdings in Gleitman.

On September 11, 1975, Paul and Shirley Berman, suing both in their own names and as Guardians ad litem for their infant daughter Sharon, instituted the present malpractice action against Ronald Allan and Michael Attardi, medical doctors licensed by the State of New Jersey. Two causes of action were alleged. The first, a claim for damages based upon "wrongful life," was asserted by Mr. Berman on behalf of the infant Sharon. The second, a claim denominated "wrongful birth," sought compensation for injuries suffered by the parents in their own right.

The factual allegations underlying each of these prayers for relief can be briefly summarized. From February 19 until November 3, 1974, Mrs. Berman, while pregnant with

Sharon, was under the care and supervision of Drs. Allan and Attardi, both of whom are specialists in gynecology and obstetrics. At the time of her pregnancy, Mrs. Berman was 38 years of age. On November 3, Sharon was born afflicted with Down's Syndrome -- a genetic defect commonly referred to as mongolism.

Plaintiffs allege that defendants deviated from accepted medical standards by failing to inform Mrs. Berman during her pregnancy of the existence of a procedure known as amniocentesis. This procedure involves the insertion of a long needle into a mother's uterus and the removal therefrom of a sample of amniotic fluid containing living fetal cells. Through "karyotype analysis" -- a procedure in which the number and structure of the cells' chromosomes are examined -- the sex of the fetus as well as the presence of gross chromosomal defects can be detected. See W. Fuhrmann & F. Vogel, Genetic Counseling 91-94 (2d Ed. 1976); A. Emery, Elements of Medical Genetics 54-59 (3d Ed. 1974); Note, "Father and Mother Know Best: Defining the Liability of Physicians for Inadequate Genetic Counseling," 87 Yale L.J. 1488, 1493 & n. 21 (1978). Prenatal diagnosis of genetic abnormalities is potentially available for approximately 60 to 90 metabolic defects, including Tay-Sachs Disease and Down's Syndrome. See Milunsky, "Prenatal Diagnosis of Genetic Disorders," 295 New Eng. J. Med. 377 (1976); Golbus, "The Antenatal Detection of Genetic Disorders," 48 Obstetrics & Gynecology 497 (1976). Recent studies indicate that amniocentesis is highly accurate in predicting the presence of chromosomal defects, and that the risk of even minor damage to mother or fetus deriving from the procedure is less than one percent. See NICHD National Registry for Amniocentesis Study Group, "Midtrimester Amniocentesis for Prenatal Diagnosis," 236 J. Am. Med. A. 1471 (1976) (99.4% accuracy in 1,040 cases); Simpson, Dallaire, Miller, Siminovich, Hamerton, Miller & McKeen, "Prenatal Diagnosis of Genetic Disease in Canada," 115 Canadian Med. A.J. 739 (1976) (99.4% accuracy in 1,223 cases).

Due to Mrs. Berman's age at the time of her conception, plaintiffs contend that the risk that her child, if born, would be afflicted with Down's Syndrome was sufficiently great that sound medical practice at the time of pregnancy required defendants to inform her both of this risk and the availability of amniocentesis as a method of determining whether in her particular case that risk would come to fruition. Had defendants so informed Mrs. Berman, the complaint continues, she would have submitted to the amniocentesis procedure, discovered that the child, if born, would suffer from Down's Syndrome, and had the fetus aborted.

As a result of defendants' alleged negligence, the infant Sharon, through her Guardian ad litem, seeks compensation for the physical and emotional pain and suffering which she will endure throughout life because of her mongoloid condition. Mr. and Mrs. Berman, the child's parents, request damages in their own right both for the emotional anguish which they have experienced and will continue to experience on account of Sharon's birth defect, and the medical and other costs which they will incur in order to properly raise, educate and supervise the child.

On November 4, 1977, the trial judge granted summary judgment in favor of defendants on the ground that plaintiffs had failed to state any actionable claim for relief. In his view, Gleitman v. Cosgrove, supra, was dispositive of the issues presented. On December 22, 1977, plaintiffs filed a notice of appeal to the Appellate Division. While the matter was pending before the appellate judges, we directly certified the case to this Court on our own motion. See R. 2:12-1.


Before addressing the merits of the various contentions put forth by the parties, it is important to emphasize the procedural posture in which the present controversy reaches us. Plaintiffs' complaint was dismissed before trial for failure to

state a valid cause of action. As such, we must accept as true each and every element of that complaint and construe all reasonable inferences flowing from plaintiffs' allegations in a light most favorable to their cause. See, e.g., Heavner v. Uniroyal, Inc., 63 N.J. 130, 133-134 (1973); Melone v. Jersey Central Power & Light Co., 18 N.J. 163, 170 (1955).

Specifically, we must assume that at the time of pregnancy: (1) defendants failed to inform Mrs. Berman of the availability of amniocentesis; (2) this failure to inform constituted a departure from acceptable medical practice; (3) had she been informed, Mrs. Berman would have submitted to amniocentesis; (4) the results of the procedure would have indicated that the child, if born, would be afflicted with Down's Syndrome; and (5) upon being notified of this fact, she would have had the fetus aborted. Our sole inquiry is whether any or all plaintiffs would be entitled to damages should they substantiate each of the above allegations at trial.


The claim for damages asserted on behalf of the infant Sharon has aptly been labeled a cause of action grounded upon "wrongful life." Sharon does not contend that absent defendants' negligence she would have come into the world in a normal and healthy state. There is no suggestion in either the pleadings below or the medical literature which we have scrutinized that any therapy could have been prescribed which would have decreased the risk that, upon birth, Sharon would suffer from Down's Syndrome. Rather, the gist of the infant's complaint is that had defendants informed her mother of the availability of amniocentesis, Sharon would never have come into existence.

As such, this case presents issues different from those involved in malpractice actions where a plaintiff asserts that a defendant's deviation from sound medical practices increased the probability that an infant would be born with defects. See, e.g., Sylvia v. Gobeille, 101 R.I. 76, 220 A.2d 222

(Sup. Ct. 1966). Nor are we here confronted with a situation in which an individual's negligence while a child was in gestation caused what otherwise would have been a normal and healthy child to come into the world in an impaired condition. See, e.g., Smith v. Brennan, 31 N.J. 353 (1960); W. Prosser, Law of Torts § 55 at 335-338 (4th Ed. 1971). Here, defendants' alleged negligence neither caused the mongoloid condition nor increased the risk that such a condition would occur. In the words of the Gleitman majority, "the infant plaintiff [asserts] . . . not that [she] should have been born without defects but [rather] that [she] should not have been born at all. . ." 49 N.J. at 28. In essence, Sharon claims that her very life is "wrongful."

The Gleitman majority refused to recognize as valid a cause of action predicated upon wrongful life. Its main reason for so holding was that damages would be impossible to ascertain. See 49 N.J. at 28-29; id. at 63 (Weintraub, C.J., concurring and dissenting).

The primary purpose of tort law is that of compensating plaintiffs for the injuries they have suffered wrongfully at the hands of others. As such, damages are ordinarily computed by "comparing the condition plaintiff would have been in, had the defendants not been negligent, with plaintiff's impaired condition as a result of the negligence." Id. at 28; see generally, W. Prosser, supra, § 55 at 335-338; Note, "Wrongful Life and A Fundamental Right to be Born Healthy," 27 Buffalo L. Rev. 537, 555-559 (1978). In the case of a claim predicated upon wrongful life, such a computation would require the trier of fact to measure the difference in value between life in an impaired condition and the "utter void of nonexistence." Gleitman, supra, 49 N.J. at 28. Such an endeavor, however, is literally impossible. As Chief Justice Weintraub noted, man, "who knows nothing of death or nothingness," simply cannot affix a price tag to non-life. Id. at 63 (Weintraub, C.J., concurring & dissenting). See, e.g., Gildiner v. Thomas Jefferson Univ. Hospital, 451 F. Supp. 692, 694 (E.D. Pa. 1978); Elliot v. Brown, 361 So. 2d 546, 547-549

(Ala. Sup. Ct. 1978); Stills v. Gratton, 55 Cal. App. 3d 698, 127 Cal. Rptr. 652, 656-657 (Dist. Ct. App. 1976); Becker v. Schwartz, 46 N.Y. 2d 401, 413 N.Y.S. 2d 895, 386 N.E. 2d 807 (Ct. App. 1978); Dumer v. St. Michael's Hospital, 69 Wis. 2d 766, 233 N.W. 2d 372, 375-376 (Sup. Ct. 1975); Note, "Toward Rational Boundaries of Tort Liability for Injury to the Unborn: Prenatal Injuries, Preconception Injuries and Wrongful Life," 1978 Duke Law Journal, 1401, 1445. See generally, Note, supra, 27 Buffalo L. Rev. at 555-559.

Nevertheless, although relevant to our determination, we would be extremely reluctant today to deny the validity of Sharon's complaint solely because damages are difficult to ascertain. The courts of this and other jurisdictions have long held that where a wrong itself is of such a nature as to preclude the computation of damages with precise exactitude, it would be a "perversion of fundamental principles of justice to deny all relief to the injured [party], and thereby relieve the wrongdoer from making any amend for his acts." Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S. Ct. 248, 250, 75 L. Ed. 544, 548 (1931); see, e.g., Martin v. Bengue, Inc., 25 N.J. 359, 373 (1957); Jenkins v. Pennsylvania R.R. Co., 67 N.J.L. 331, 334 (E & A 1902). To be sure, damages may not be determined by mere speculation or guess and, as defendants emphasize, placing a value upon non-life is not simply difficult -- it is humanly impossible. Nonetheless, were the measure of damages our sole concern, it is possible that some judicial remedy could be fashioned which would redress plaintiff, if only in part, for injuries suffered. See, e.g., Kashi, "The Case of the Unwanted Blessing: Wrongful Life," 31 U. Miami L. Rev. 1409 (1977); Note, "A Cause of Action for 'Wrongful Life,'" 55 Minn. L. Rev. 58 (1970).

Difficulty in the measure of damages is not, however, our sole or even primary concern. Although we conclude, as did the Gleitman majority, that Sharon has failed to state an actionable claim for relief, we base our result upon a

different premise -- that Sharon has not suffered any damage cognizable at law by being brought into existence. See, e.g., Becker v. Schwartz, supra, 46 N.Y. 2d at 411, 413 N.Y.S. 2d at 900, 386 N.E. 2d at 812; Note, supra, 87 Yale L.J. at 1500-1502.

One of the most deeply held beliefs of our society is that life -- whether experienced with or without a major physical handicap -- is more precious than non-life. See In re Quinlan, 70 N.J. 10, 19 & n. 1 (1976). Concrete manifestations of this belief are not difficult to discover. The documents which set forth the principles upon which our society is founded are replete with references to the sanctity of life. The federal constitution characterizes life as one of three fundamental rights of which no man can be deprived without due process of law. U.S. Const., Amends. V and XIV. Our own state constitution proclaims that the "enjoying and defending [of] life" is a natural right. N.J. Const. (1947), Art. I, § 1. The Declaration of Independence states that the primacy of man's "unalienable" right to life is a ...

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