On appeal from the Superior Court, Law Division, Morris County.
Milmed, Joelson and Gaulkin. The opinion of the court was delivered by Gaulkin, J.A.D.
Plaintiff Arlene Comras brought this action to recover damages for the wrongful birth of a defective child which followed defendant's allegedly negligent failure to make a timely diagnosis of her pregnancy. Tried to a jury the case was dismissed on defendant's motion at the close of plaintiff's case. R. 4:37-2(b). Plaintiff appeals from that judgment; the pretrial dismissal, by partial summary judgment, of the wrongful life claim of the child is not challenged here.
Plaintiff sought to prove the cause of action recognized in Berman v. Allan , 80 N.J. 421 (1979). The theory of her case was that had her pregnancy been confirmed in the first trimester, she would have aborted it because of the peculiar and known risks of bearing a defective child arising from her age and history of diabetes; that defendant's negligence delayed the diagnosis to the second trimester; that she concluded she "couldn't do it [ i.e. , abort the pregnancy]" at that time, and that accordingly defendant's malpractice had effectively deprived her
of "the option of making a meaningful decision as to whether to abort the fetus." The trial judge dismissed the action upon a finding that the undisputed testimony, viewed most favorably to plaintiff (Heavner v. Uniroyal, Inc. , 63 N.J. 130, 133-134 (1973)), "is that she could have had the abortion at the time she found out she was pregnant" and therefore "she had the option" whose deprivation is central to the Berman cause of action.
We reverse. Plaintiff's proofs showed that she had conceived in August 1976 and that her pregnancy was first confirmed, by a doctor other than defendant, on December 7, early in the second trimester. While a first trimester abortion might have been "relatively safe", it cannot be doubted that "the risk to the woman increases as her pregnancy continues." Roe v. Wade , 410 U.S. 113, 149-150, 93 S. Ct. 705, 724-725, 35 L. Ed. 2d 147 (1973). Indeed, it is for that reason that the State's "important and legitimate interest in the health of the mother" has been found to justify governmental regulation commencing "at approximately the end of the first trimester." Id. at 163, 93 S. Ct. at 731. Here, although it is stipulated that abortion was lawfully available to plaintiff when her pregnancy was diagnosed, the inference of increased risk at that time is underscored by plaintiff's proofs that the abortive procedure then would have differed from that used in the first trimester.
We are satisfied that upon a proper showing a factfinder might conclude that the enhanced risks of an abortion delayed to the second trimester are of such nature and magnitude that, even though abortion remains lawfully available, the parent is effectively "denied a meaningful opportunity" to decide whether the fetus should be aborted. Berman , 80 N.J. at 431-432. Such was the holding in Ziemba v. Sternberg , 45 App.Div. 2d 230, 357 N.Y.S. 2d 265 (App.Div.1974), whose language is directly in point and persuasive:
We recognize that the present record is without proofs sufficient to make such a determination of the nature or extent of any enhanced risks. But plaintiff's counsel did inquire of her treating doctor why he "would not get involved in such a procedure at that time [ i.e. , when the pregnancy was confirmed]." Defendant's counsel objected "unless it goes to legality or illegality," and the trial judge sustained the objection because the question "opens up or could open up a whole can of worms." Plaintiff was thus wrongly deprived of the opportunity to put before the jury any description or evaluation of the additional risks which she faced in a second trimester abortion.
We therefore find it necessary to vacate the judgment entered below and to order a new trial. For the guidance of the court and counsel at the new trial, we note that we find no error in the challenged admission of evidence concerning plaintiff's asserted failure or refusal to follow medical advice. Evid.R. 49, 50.
Reversed and remanded for proceedings consistent with this opinion. We do not ...