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Procanik v. Cillo

Decided: August 1, 1984.


On Certification to the Superior Court, Appellate Division.

For affirmance in part and for reversal in part -- Chief Justice Wilentz, and Justices Clifford, Pollock, O'Hern and Garibaldi. Concurring in part; dissenting in part -- Justice Handler. Dissenting in part -- Justice Schreiber. The opinion of the Court was delivered by Pollock, J. Handler, J., concurring in part and dissenting in part. Schreiber, J., dissenting in part.


The primary issue on this appeal is the propriety of a grant of a partial summary judgment dismissing a "wrongful life" claim brought by an infant plaintiff through his mother and guardian ad litem. That judgment, which was granted on the pleadings, dismissed the claim because it failed to state a cause of action upon which relief may be granted. R. 4:6-2(e).

The infant plaintiff, Peter Procanik, alleges that the defendant doctors, Joseph Cillo, Herbert Langer, and Ernest P. Greenberg, negligently failed to diagnose that his mother, Rosemary Procanik, had contracted German measles in the first trimester of her pregnancy. As a result, Peter was born with congenital rubella syndrome. Alleging that the doctors negligently deprived his parents of the choice of terminating the pregnancy, he seeks general damages for his pain and suffering and for "his parents' impaired capacity to cope with his problems." He also seeks special damages attributable to the extraordinary expenses he will incur for medical, nursing, and other health care. The Law Division granted defendants' motion to dismiss, and the Appellate Division affirmed in an unreported opinion.

We granted certification, 95 N.J. 176 (1983). We now conclude that an infant plaintiff may recover as special damages the extraordinary medical expenses attributable to his affliction,

but that he may not recover general damages for emotional distress or for an impaired childhood. Consequently, we affirm in part and reverse in part the judgment of the Appellate Division, and remand the matter to the Law Division.


Because this matter comes before us on the grant of a motion to dismiss, we focus on the complaint, which contains three counts. In the first count, Peter, through his guardian ad litem, seeks damages for birth defects and impaired childhood; in the second count, his parents seek damages for emotional distress and extraordinary medical expenses attributable to Peter's defects; and in the third count, his parents assert a claim for malpractice against their former attorneys. Accepting as true the plaintiff's allegations, see, e.g., Portee v. Jaffee, 84 N.J. 88, 90 (1980), the complaint discloses the following facts.

The defendant doctors, Joseph Cillo, Herbert Langer, and Ernest P. Greenberg, are board-certified obstetricians and gynecologists who apparently conduct a group practice. On June 9, 1977, during the first trimester of her pregnancy with Peter, Mrs. Procanik consulted the defendant doctors and informed Dr. Cillo "that she had recently been diagnosed as having measles but did not know if it was German measles." Dr. Cillo examined Mrs. Procanik and ordered "tests for German Measles, known as Rubella Titer Test." The results "were 'indicative of past infection of Rubella.'" Instead of ordering further tests, Dr. Cillo negligently interpreted the results and told Mrs. Procanik that she "had nothing to worry about because she had become immune to German Measles as a child." In fact, the "past infection" disclosed by the tests was the German measles that had prompted Mrs. Procanik to consult the defendant doctors.

Ignorant of what an accurate diagnosis would have disclosed, Mrs. Procanik allowed her pregnancy to continue, and Peter

was born on December 26, 1977. Shortly thereafter, on January 16, 1978, he was diagnosed as suffering from congenital rubella syndrome. As a result of the doctors' negligence, Mr. and Mrs. Procanik were deprived of the choice of terminating the pregnancy, and Peter was "born with multiple birth defects," including eye lesions, heart disease, and auditory defects. The infant plaintiff states further that "he has suffered because of his parents' impaired capacity to cope with his problems," and seeks damages for his pain and suffering and for his "impaired childhood."

In April 1983, while this matter was pending in the Appellate Division, Peter moved to amend the first count to assert a claim to recover, as special damages, the expenses he will incur as an adult for medical, nursing, and related health care services. In its opinion, the Appellate Division denied without prejudice leave to amend. Although this claim was not raised before the trial court and not considered by the Appellate Division, fairness, justice, and judicial efficiency persuade us to consider the claim for special damages.

The complaint, which was filed on April 8, 1981, contains two other counts. In the second count, Peter's parents seek damages for their emotional distress and for the extraordinary medical expenses attributable to Peter's birth defects. Before the trial court they stipulated, however, that they knew they had a potential cause of action by January 1978, nearly three years before instituting suit. The trial court ruled, therefore, that the parents' claim was barred by the two-year statute of limitations contained in N.J.S.A. 2A:14-2. Before us, however, the parents contend that their claim is derived from Peter's claim and that N.J.S.A. 2A:14-2.1, which tolls the statute of limitations during infancy, protects their claim. Hence, the parents ask us to recognize their claim.

In the third count, the parents assert a claim for malpractice against their former attorneys, alleging that they consulted defendant attorney Harold A. Sherman, who undertook to advise

them of their legal rights. Mr. Sherman consulted with defendant attorneys Greenstone, Greenstone & Naishuler, a professional corporation specializing in medical malpractice claims. After conferring with Mr. Goldsmith of that firm, Mr. Sherman advised the parents on May 2, 1979 that they did not have a cause of action, and he never informed them that this Court had granted certification in Berman v. Allan on September 5, 1978.

In Berman, 80 N.J. 421, which was decided on June 26, 1979, we recognized that parents may recover for emotional distress for the "wrongful birth" of a child born with birth defects. The defendant attorneys, however, never advised Mr. and Mrs. Procanik that they had a cause of action, and the two-year statute of limitations ran on their claim on January 16, 1980. The trial court did not rule on the attorney malpractice claim, and that issue is not before us.


In this case we survey again the changing landscape of family torts. See Schroeder v. Perkel, 87 N.J. 53, 71 (1981). Originally that landscape presented a bleak prospect both to children born with birth defects and to their parents. If a doctor negligently diagnosed or treated a pregnant woman who was suffering from a condition that might cause her to give birth to a defective child, neither the parents nor the child could maintain a cause of action against the negligent doctor. Gleitman v. Cosgrove, 49 N.J. 22 (1967).

Like the present case, Gleitman involved a doctor who negligently treated a pregnant woman who had contracted German measles in the first trimester of her pregnancy. Reasoning from the premise that the doctor did not cause the infant plaintiff's birth defects, the Gleitman Court found it impossible to compare the infant's condition if the defendant doctor had not been negligent with the infant's impaired condition as a result of the negligence. Measurement of "the value of life

with impairments against the nonexistence of life itself" was, the Court declared, a logical impossibility. Id. at 28. Consequently, the Court rejected the infant's claim.

The Court denied the parents' claim for emotional distress and the costs of caring for the infant, because of the impossibility of weighing the intangible benefits of parenthood against the emotional and monetary injuries sustained by them. Prevailing policy considerations, which included a reluctance to acknowledge the availability of abortions and the mother's right to choose to terminate her pregnancy, prevented the Court from awarding damages to a woman for not having an abortion. Another consideration was the Court's belief that "[i]t is basic to the human condition to seek life and hold on to it however heavily burdened." 49 N.J. at 30.

In the seventeen years that have elapsed since the Gleitman decision, both this Court and the United States Supreme Court have reappraised, albeit in different contexts, the rights of pregnant women and their children. The United States Supreme Court has recognized that women have a constitutional right to choose to terminate a pregnancy. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). Recognition of that right by the high court subsequently influenced this Court in Berman v. Allan, supra, 80 N.J. 421.

In Berman, the parents sought to recover for their emotional distress and for the expenses of raising a child born with Down's Syndrome. Relying on Roe v. Wade, supra, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, the Court found that public policy now supports the right of a woman to choose to terminate a pregnancy. Berman v. Allan, supra, 80 N.J. at 431-32. That finding eliminated one of the supports for the Gleitman decision -- i.e., that public policy prohibited an award for depriving a woman of the right to choose whether to have an abortion. Finding that a trier of fact could place a dollar value on the parents' emotional suffering, the Berman Court concluded "that the monetary equivalent of this distress is an appropriate

measure of the harm suffered by the parents." 80 N.J. at 433.

Nonetheless, the Court rejected the parents' claim for "medical and other expenses that will be incurred in order to properly raise, educate and supervise the child." Id. at 432. The Court reasoned that the parents wanted 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 enormous expenses attendant upon her rearing." Id. Such an award would be disproportionate to the negligence of the defendants and constitute a windfall to the parents. Id.

The Berman Court also declined to recognize a cause of action in an infant born with birth defects. Writing for the Court, Justice Pashman reasoned that even a life with serious defects is more valuable than non-existence, the alternative for the infant plaintiff if his mother chose to have an abortion. Id. at 429.

More recently we advanced the parents' right to compensation by permitting recovery of the extraordinary expenses of raising a child born with cystic fibrosis, including medical, hospital, and pharmaceutical expenses. Schroeder v. Perkel, supra, 87 N.J. at 68-69. No claim on behalf of the infant was raised in that case, id. at 61, and we elected to defer consideration of such a claim until another day. Id. at 66. That day is now upon us, and we must reconsider the right of an infant in a "wrongful life" claim to recover general damages for diminished childhood and pain and suffering, as well as special damages for medical care and the like.


The terms "wrongful birth" and "wrongful life" are but shorthand phrases that describe the causes of action of parents and children when negligent medical treatment deprives parents of the option to terminate a pregnancy to avoid the birth of a defective child. See Schroeder v. Perkel, supra,

87 N.J. at 75-76 (Handler, J., concurring and dissenting). In the present context, "wrongful life" refers to a cause of action brought by or on behalf of a defective child who claims that but for the defendant doctor's negligent advice to or treatment of its parents, the child would not have been born. "Wrongful birth" applies to the cause of action of parents who claim that the negligent advice or treatment deprived them of the choice of avoiding conception or, as here, of terminating the pregnancy. See Comment, "'Wrongful Life': The Right Not To Be Born," 54 Tul.L.Rev. 480, 484-85 (1980); A. Capron, "Tort Liability in Genetic Counseling," 79 Colum.L.Rev. 618, 630-57 (1979).

Both causes of action are distinguishable from the situation where negligent injury to a fetus causes an otherwise normal child to be born in an impaired condition. See, e.g., Smith v. Brennan, 31 N.J. 353 (1960); W. Prosser, Law of Torts ยง 55 at 335-38 (4th ed. 1971). In the present case, the plaintiffs do not allege that the negligence of the defendant doctors caused the congenital rubella syndrome from which the infant plaintiff suffers. Neither do plaintiffs claim that the infant ever had a chance to be a normal child. The essence of the infant's claim is that the defendant doctors wrongfully deprived his mother of information that would have prevented his birth.

Analysis of the infant's cause of action begins with the determination whether the defendant doctors owed a duty to him. The defendant doctors do not deny they owed a duty to the infant plaintiff, and we find such a duty exists. See Berman v. Allan, supra, 80 N.J. at 444 (Handler, J., concurring and dissenting); Gleitman v. Cosgrove, supra, 49 N.J. at 50 (Jacobs, J., dissenting). In evaluating the infant's cause of action, we assume, furthermore, that the defendant doctors were negligent in treating the mother. Moreover, we assume that their negligence deprived the parents of the choice of

terminating the pregnancy and of preventing the birth of the infant plaintiff.

Notwithstanding recognition of the existence of a duty and its breach, policy considerations have led this Court in the past to decline to recognize any cause of action in an infant for his wrongful life. The threshold problem has been the assertion by infant plaintiffs not that they should not have been born without defects, but that they should not have been born at all. Gleitman v. Cosgrove, supra, 49 N.J. at 28. The essence of the infant's cause of action is that its very life is wrongful. Berman v. Allan, supra, 80 N.J. at 427. Resting on the belief that life, no matter how burdened, is preferable to non-existence, the Berman Court stated that the infant "has not suffered any damage cognizable at law by being brought into existence." Id. at 429. Although the premise for this part of the Berman decision was the absence of cognizable damages, the Court continued to be troubled, as it was in Gleitman, by the problem of ascertaining the measure of damages. Id. at 428.

The courts of other jurisdictions have also struggled with the issues of injury and damages when faced with suits for wrongful life. Although two intermediate appellate courts in New York and California recognized an infant's claim for general damages, those decisions were rejected by the courts of last resort in both jurisdictions. In two decisions, Becker v. Schwartz, 60 A.D. 2d 587, 400 N.Y.S. 2d 119 (1977), and Park v. Chessin, 60 A.D. 2d 80, 400 N.Y.S. 2d 110 (1977), the Appellate Division of the New York Supreme Court held that a claim for wrongful life stated a valid cause of action. The Court of Appeals reversed, reasoning that an infant does not have a right to be born as a whole functioning human being and that it is beyond judicial competence to ascertain whether the infant has suffered any injury by being born. Becker v. Schwartz, 46 N.Y. 2d 401, 411, 413 N.Y.S. 2d 895, 900, 386 N.E. 2d 807, 812 (1978). Similarly, the California Supreme Court overruled a Court of Appeal's holding that an infant plaintiff could recover

general damages for wrongful life. Turpin v. Sortini, 31 Cal. 3d 220, 643 P. 2d 954, 182 Cal.Rptr. 337 (1982) (overruling in part Curlender v. Bio-Science Laboratories, 106 Cal.App. 3d 811, 165 Cal.Rptr. 477 (1980)).

Other courts have uniformly found that the problems posed by the damage issues in wrongful life claims are insurmountable and have refused to allow the action on behalf of the infant. See, e.g., Gildiner v. Thomas Jefferson Univ. Hosp., 451 F. Supp. 692, 694 (E.D.Pa.1978) (applying Pennsylvania law); Moores v. Lucas, 405 So. 2d 1022, 1025 (Fla.Dist.Ct.App.1981); Eisbrenner v. Stanley, 106 Mich.App. 357, 308 N.W. 2d 209, 211-13 (Ct.App.1981); Speck v. Finegold, 497 Pa. 77, 439 A.2d 110 (1981) (evenly divided court affirming 268 Pa.Super. 342, 408 A.2d 496, 508 (1979)); Dumer v. St. Michael's Hosp., 69 Wis. 2d 766, 233 N.W. 2d 372, 375-76 (1975).

Even when this Court declined to recognize a cause of action for wrongful life in Gleitman and Berman, dissenting members urged recognition of that claim. Justice Jacobs wrote in Gleitman that a wrong has been committed and that the law "can afford some reasonable measure of compensation towards alleviating the financial burdens." 49 N.J. at 49. He described the claim for emotional distress as "incalculable," but found "the medical and maintenance expenses causally related to the abnormality" to be "readily measurable." Id. at 50. Although the Berman Court found the determination of damages to be "humanly impossible," it recognized the possibility that, if the measure of damages were the only concern, "some judicial remedy could be fashioned which would redress plaintiff, if only in part, for injuries suffered." 80 N.J. at 428. While recognizing "the measurement of damages for nonphysical injury is at best elusive and complex," id. at 437, Justice Handler has espoused recognition of an infant's claim in his separate opinions in Schroeder v. Perkel, supra, 87 N.J. at 72, and Berman v. Allan, supra, 80 N.J. at 434. Extending through these opinions is an awareness that damages would be appropriate if they were measurable by acceptable standards.

Recently we recognized that extraordinary medical expenses incurred by parents on behalf of a birth-defective child were predictable, certain, and recoverable. Schroeder v. Perkel, supra, 87 N.J. at 68-69. In reaching that conclusion, we discussed the ...

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