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P. v. Portadin

Decided: June 24, 1981.


On appeal from the Superior Court of New Jersey, Law Division, Cumberland County.

Michels, Kole and Ard. The opinion of the court was delivered by Michels, P.J.A.D.


[179 NJSuper Page 467] Pursuant to leave of this court, plaintiffs Mr. & Mrs. P. appeal from an order of the Law Division entered in favor of defendants

Ronald Portadin, M.D. and the Vineland Obstetrical and Gynecological Association (Vineland), dismissing "[a]ny and all claims for medical expenses and future child rearing expenses" and "leaving as the only issue with respect to damages the emotional distress of the parents."

Plaintiffs instituted this medical malpractice action against defendants, claiming that Dr. Portadin, an employee of both Vineland and defendant Newcomb Hospital, advised Mrs. P. to undergo a sterilization procedure; that Dr. Portadin obtained her consent to perform a particular kind of procedure (tubal ligation), but that he willfully performed another procedure (fallopian rings) without her consent, and, finally, that Dr. Portadin performed the unauthorized procedure negligently. They claim that as a result of Dr. Portadin's malpractice Mrs. P. became pregnant and gave birth to a normal child, and therefore she seeks damages for the pain and suffering sustained as a result of the birth of the child, the emotional upset she has undergone and will undergo, loss of income and the future cost of rearing the child. Her husband sues per quod and seeks to recover damages for the loss of his wife's services and the medical expenses he incurred for her prenatal care and delivery of the child.

Dr. Portadin and Vineland moved for summary judgment on the ground that the complaint failed to state a claim against them upon which relief could be granted, relying on the Supreme Court's decision in Berman v. Allan , 80 N.J. 421 (1979). The trial judge refused to dismiss the compliant; however, on his own motion he amended or treated the motion as one to limit damages, and thereupon, limited plaintiffs' damage claims to those for emotional distress.

Plaintiffs contend on this appeal that the trial judge's action in amending or treating the motion as one to limit damages denied them their constitutional right of due process. We disagree. We think it was entirely appropriate case management for the trial judge in these circumstances to treat

defendants' summary judgment motion as one to limit damages. It refined the issues for trial, with the result that there will be a savings of time and expense to both the litigants and the court.

Plaintiffs also contend that the trial judge erred in concluding that Berman v. Allan, supra , barred their claims for medical expenses and child support. In Berman the plaintiffs consulted the defendant physicians while Mrs. Berman was pregnant. Mrs. Berman later gave birth to a child afflicted with Down's Syndrome. The Bermans claimed that defendants were negligent in failing to inform them about a prenatal test for diagnosing genetic defects. The Supreme Court held that the Bermans' claim for "wrongful birth" based on the denial of an opportunity to make an informed decision concerning an abortion was maintainable, and that the parents could pursue their claim for damages for mental and emotional anguish they had suffered and would continue to suffer as a result of the child's condition. However, the Supreme Court held that the parents could not recover for medical or other expenses they would necessarily incur in properly raising, educating and supervising their child, stating:

Troublesome, however, is the measure of damages. As noted earlier, the first item sought to be recompensed is the medical and other expenses that will be incurred in order to properly raise, educate and supervise the child. Although these costs were "caused" by defendants' negligence in the sense that but for the failure to inform, the child would not have come into existence, we conclude that this item of damage should not be recoverable. In essence, Mr. and Mrs. Berman desire 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 the enormous expenses attendant upon her rearing. Under the facts and circumstances here alleged, we find that such an award would be wholly disproportionate to the culpability involved, and that allowance of such a recovery would both constitute a windfall to the parents and place too unreasonable a financial burden upon physicians. See, e.g., Rieck v. Medical Protective Co. , 64 Wis. 2d 514, 219 N.W. 2d 242, 244-245 (Sup.Ct.1974); Coleman v. Garrison , 349 A.2d 8 (Sup.Ct.Del.1975) [80 N.J. at 432-433]

The same underlying policy was expressed by the Supreme Court in Gleitman v. Cosgrove , 49 N.J. 22, 29-30 (1967), which was overruled in part by Berman v. ...

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