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Schroeder v. Perkel

Decided: July 15, 1981.


On certification to Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Handler and Pollock. For affirmance -- Justice Schreiber. The opinion of the Court was delivered by Pollock, J. Schreiber, J., dissenting. Handler, J., concurring in part and dissenting in part.


The sole issue on this appeal is the propriety of a grant of partial summary judgment to defendant physicians in a "wrongful conception" or "wrongful birth" action brought by the parents of a child with cystic fibrosis.

The parents allege that the negligent failure of defendants to diagnose cystic fibrosis, a hereditary disease, in their first child deprived the parents of an informed choice whether to have a second child. Consequently, the parents seek to recover the incremental medical costs associated with raising the second child who also suffers from cystic fibrosis. They claim that these costs are attributable directly to the negligence of the defendants.

The trial court denied defendants' motion for summary judgment, but the Appellate Division reversed. We granted certification, 84 N.J. 438 (1980). We reverse the judgment of the Appellate Division and remand the matter for trial.


Because this appeal presents for review an order of partial summary judgment for defendants, we must accept as true all the allegations in plaintiffs' complaint, affidavits and depositions and accord to them the benefit of all reasonable inferences. Portee v. Jaffee, 84 N.J. 88, 90 (1980); Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 74-75 (1954).

Defendants, Dr. Perkel and his associate Dr. Venin, are pediatricians certified by the American Board of Pediatrics and licensed to practice medicine in this state. They treated infant plaintiff, Ann Schroeder, from May 1970 until September 1974. During that time, they failed to diagnose Ann's illness as cystic fibrosis, a genetically transferred disease. Because Mr. and Mrs. Schroeder, Ann's parents, were not told that they were carriers of cystic fibrosis, they claim that they were deprived of an informed choice of whether to assume the risk of a second child. Before they learned that Ann suffered from cystic fibrosis, Mrs.

Schroeder became pregnant. One month after learning of Ann's affliction, Mrs. Schroeder gave birth to a second child, Thomas, who also suffers from cystic fibrosis.

Cystic fibrosis is one of the most common fatal genetic diseases in the United States and affects approximately one out of every 1,800 babies. An insidious and incurable disease, cystic fibrosis is carried by some parents as a recessive gene. There is no reasonably certain method of detecting whether a parent is a "carrier" of the disease, and parents may be carriers without knowing it. When both parents are carriers, they may anticipate that cystic fibrosis will affect their children according to the Mendelian ratio. The statistical probability that cystic fibrosis will affect the children is: 25% probability of a normal child, 50% probability of a carrier child, and 25% probability of an afflicted child.

In general, cystic fibrosis causes certain glands to malfunction and produce abnormally thick mucous. The most commonly affected body systems are the digestive tract and the respiratory system. In the digestive tract, mucous blocks ducts in the pancreas, preventing enzymes from reaching the intestines. One result is an inability to digest fats. Respiratory problems, however, are the most serious symptoms of cystic fibrosis. In the respiratory system, mucous clogs passages and causes air to become trapped in the lungs. Respiratory problems cause chronic pulmonary infection, emphysema and over 90% of all deaths of patients with cystic fibrosis. Metabolic Basis of Inherited Disease 1684 (4 ed. 1978).

Standard treatment of cystic fibrosis consists of antibiotics to control pulmonary infection and a restricted diet. Mucous is drained from the lungs by elevating the victim's feet above the head and clapping or gently pounding the back and chest. Hospital or institutional care frequently is not required except in emergencies or until the terminal stages of the illness.

In many respects, people afflicted with cystic fibrosis may lead normal lives. The prospects for one suffering from cystic

fibrosis, however, are grim. Life expectancy is foreshortened, and death usually occurs in the late teen years.

Cystic fibrosis cannot be detected in a fetus. A safe, simple and highly reliable test, however, can be performed shortly after birth. Known as the "sweat test," it involves an analysis of perspiration, which contains an abnormally high concentration of salt in someone suffering from cystic fibrosis. A positive test indicates not only that both parents are carriers, but also the probabilities that future children of those parents will be afflicted with cystic fibrosis.

As an infant, Ann suffered from a digestive disorder diagnosed by Dr. Swiney, a general practitioner, as colic. When the symptoms persisted through her second year, Dr. Swiney referred Ann to the defendant physicians.

Dr. Venin diagnosed Ann's condition as a malabsorption syndrome resulting from an intolerance for fats. He prescribed a special diet low in starch and high in protein. The diet, which relieved her symptoms, is the same diet prescribed for persons suffering from cystic fibrosis. Dr. Venin did not deem the diagnosis final, however, and indicated that alternative diagnoses should be considered and eliminated. His notes from his initial interview with Ann show the entry "R.O. [meaning "rule out"] cystic fibrosis."

Dr. Venin did not perform a sweat test. Instead, he relied on a stool test performed by Dr. Swiney, and he assured Mr. and Mrs. Schroeder that the stool test ruled out cystic fibrosis. Nonetheless, Dr. Venin admits that the stool test is not the correct or preferred test to use in diagnosing cystic fibrosis. Between May 1970 and September 1974, Dr. Venin also treated Ann for respiratory complaints that he diagnosed as an allergic problem.

In June 1974, Mr. and Mrs. Schroeder read a newspaper article describing the symptoms of cystic fibrosis. Feeling that the article described Ann's condition, they asked Dr. Venin about the possibility of cystic fibrosis. According to Mrs. Schroeder,

Dr. Venin told her in July 1974 that Ann "couldn't possibly have cystic fibrosis," an assertion disputed by Dr. Venin. Mrs. Schroeder stated that Dr. Venin informed her that the stool test performed by Dr. Swiney had eliminated the possibility of cystic fibrosis and that Ann definitely was not suffering from this disease.

When Ann's condition worsened in September 1974, Dr. Venin referred her to Dr. Grotsky, a specialist in digestive disorders. Dr. Grotsky performed the sweat test. The test established that Ann suffered from cystic fibrosis. Unfortunately, by that date Mrs. Schroeder was in the eighth month of her pregnancy with Thomas. The delay in the diagnosis had precluded Mr. and Mrs. Schroeder from making an informed choice as to whether or not to assume the risk of conceiving a second child with cystic fibrosis. The delay also had prevented them from making an informed choice whether Mrs. Schroeder should have an abortion.

On depositions, Mrs. Schroeder testified:

Q. If you had been made aware at an earlier time that Ann had cystic fibrosis, would you have become pregnant with Thomas?

A. No. I would not have.

Q. If you had been told that Ann had cystic fibrosis in late January or early February of 1974 would you have aborted the pregnancy?

A. Yes.

A consideration of the risk of cystic fibrosis for subsequent children led Mr. Schroeder to submit to a vasectomy even before the birth of Thomas. A sweat test performed on Thomas two weeks after his birth revealed that he, like his sister, was afflicted with cystic fibrosis.

Mr. and Mrs. Schroeder instituted this action on behalf of themselves and Ann and Thomas. In an amended complaint, they asserted four causes of action. In Count One, Mrs. Schroeder, as guardian ad litem of Ann, sought damages for pain and

suffering caused by the allegedly negligent failure of defendants to diagnose that Ann suffered from cystic fibrosis. In Count Two, Mr. and Mrs. Schroeder asserted their own claim for the costs of past medical care for Ann. In Count Three, Mr. and Mrs. Schroeder sought damages in a "wrongful birth" action for the failure of defendants to advise them that Ann suffered from cystic fibrosis, thereby depriving Mr. and Mrs. Schroeder of the alternative of preventing the conception of Thomas. They sought damages not only for the incremental medical costs, but also for the mental anguish involved in caring for Thomas. In Count Four, Mrs. Schroeder, as guardian ad litem of Thomas, asserted a claim for his wrongful life. In that claim she sought damages for his pain and suffering resulting from his birth and life as a child afflicted with cystic fibrosis.

Defendants moved for summary judgment on all four counts. The trial court denied defendants' motion for summary judgment on Counts One and Two (which included claims for medical costs and pain and suffering of Ann), and defendants did not seek leave to appeal. The trial court granted the motion for summary judgment for defendants on the fourth count asserting the claim for the "wrongful life" of Thomas. The Appellate ...

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