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Procanik v. Cillo

Decided: June 30, 1988.


On appeal from the Superior Court, Law Division, Union County, whose opinion on the summary judgment motions is reported at 206 N.J. Super.. 270 (Law Div. 1985).

Pressler, Bilder and Skillman. The opinion of the court was delivered by Pressler, P.J.A.D.


This case sounds in legal malpractice. Defendants Lee Goldsmith, an attorney at law of this state having special expertise in medical malpractice litigation, and Greenstone, Greenstone and Naishuler, the New Jersey firm with which he was associated at the time the operative events occurred, appeal from a jury verdict finding them liable to plaintiffs Rosemarie and Michael Procanik and their son Peter because of Goldsmith's alleged professional dereliction in failing to provide them with an adequate expression of his reasons for declining to represent them in their claims against Mrs. Procanik's obstetricians. We reverse. We conclude that this record does not raise a prima facie case of professional negligence against defendants and hence that the complaint should have been dismissed prior to its submission to the jury.

This case, as it is presently postured, comes to us by way of a tortuously complex route. The salient facts are, however, largely undisputed, and the following factual recitation is based on uncontested facts appearing in pretrial documents and adduced at trial.

The litigation arises out of the tragic circumstances of the birth on December 26, 1977 of a rubella-syndrome child, Peter Procanik, who by reason of his mother's German measles infection early in her pregnancy has grave vision and auditory disabilities, serious mental deficiencies, and a variety of other

physical and mental problems. His parents believed that Mrs. Procanik's obstetrician, defendant Joseph Cillo, who was in practice with defendants Herbert Langer and Ernest Greenberg, had negligently failed to realize that she had had German measles in her first month of pregnancy and had in fact advised her that the rash-producing illness which she had then suffered was not German measles. By so doing, she claimed, defendant Cillo deprived her of the opportunity for which she would have opted of terminating the pregnancy by voluntary abortion. Her prospective cause of action and that of the child were, consequently, those which have come to be known as wrongful birth and wrongful life.

Several months after Peter's birth, the Procaniks consulted Harold Sherman, a New Jersey attorney, with respect to their potential claims against the obstetricians. Although generally experienced in personal injury litigation, Sherman was not experienced in complex medical malpractice matters. He knew, however, of Goldsmith's expertise as the result of his attendance at a lecture on the subject given by Goldsmith, whose credentials include a medical degree earned prior to his law degree. In the fall of 1978 Sherman asked Goldsmith if he would be willing to represent the Procaniks in litigation against the obstetricians. Goldsmith expressed preliminary interest, making it clear, however, that he would have to make both a medical and legal evaluation before he could commit to the undertaking. Working with Sherman, the Procaniks' attorney, rather than with the Procaniks themselves, Goldsmith obtained the pertinent medical records and a statement from Mrs. Procanik asserting that she would have chosen to terminate the pregnancy had she known that she had had German measles. Goldsmith also submitted the medical information and his own precis of the case for evaluation and report to a medical expert, Dr. Leslie Iffy, a noted perinatologist and experienced forensic witness. In addition, he did legal research and discussed the case from time to time with the senior partners of the Greenstone firm. [226 NJSuper Page 137] During the entire period in which this evaluation process was being conducted, the controlling law in this state was Gleitman v. Cosgrove, 49 N.J. 22 (1967), which had held that no cause of action on behalf of either parent or child lies based on the failure of a physician to advise the mother of a risk of a defective fetus provided the physician has neither caused nor contributed to the defect and provided he is without the capacity to remedy it. Goldsmith was, of course, aware of Gleitman. He also learned that on December 27, 1978 the New York Court of Appeals in Becker v. Schwartz, 46 N.Y. 2d 401, 413 N.Y.S. 2d 895, 386 N.E. 2d 807 (Ct.App.1978), overruled prior decisional law in that state by recognizing the parents' cause of action for wrongful birth but limiting their damages to those expenses incurred and to be incurred for the care and treatment of the child attributable to the child's congenital disabilities. The New York Court, however, refused to recognize either the parents' right to damages for emotional or psychic harm or the child's right to a cause of action for her "wrongful" life. Goldsmith was also aware, of course, that the United States Supreme Court's decision in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), permitting voluntary abortion during the first trimester of pregnancy at the mother's option, might have affected some of the underpinnings of the Gleitman ruling.*fn1

He apparently hoped, therefore, that he could engage the interest of the Greenstone firm in accepting the case and, on January 29, 1979, wrote the following memorandum to the senior partners, Herbert E. Greenstone and Allen Naishuler, both now deceased:

We have, in the office, a Procanik file. This is a case in which a woman had a last menstrual period in May, measles at the end of May, then went to a gynecologist at the beginning of June; rubella test done, showed that she did have antibodies to it and apparently never informed of this so as to get an abortion. Gave birth to a deformed child in the following year.

This case would fall into the area of Gleitman v. Cosgrove, [49 N.J. 22] 227 Atlantic 2d 689. The decision in this case was in 1967, at a time when abortions were still illegal. The decision was 4 to 3, and was, in part, based on the fact that abortions were illegal.

Recently, in New York, (and a copy of this decision is enclosed) there were two cases decided, Becker v. Schwartz and Park v. Jessen [ Chessin, 46 N.Y. 2d 401, 413 N.Y.S. 2d 895, 386 N.E. 2d 807], which in effect reverses Gleitman v. Cosgrove, and the New York case, Stuart v. Long Island Hospital. I think that now, at this time, it is an appropriate time to determine clearly whether or not we wish to take on Gleitman v. Cosgrove, going up to the Supreme Court. I think the time is right, and I think we have a good shot at reversal. The reason for the memo, then, is please read Becker v. Schwartz which is enclosed as well as Gleitman, so that we can discuss it and discuss our options. The damages are heavy.

About a month after he wrote that memorandum, Goldsmith received Dr. Iffy's report, about which we will have more to say hereafter. At the time Dr. Iffy's report arrived, Goldsmith and Greenstone were trying a case in a distant county, and it was not until sometime in mid-March 1979 that Goldsmith and Greenstone, who had occasionally discussed the Procanik case with each other, finally met with Naishuler to decide whether or not to undertake the representation. According to Goldsmith's answers to interrogatories and his trial testimony, both

entirely undisputed, Herbert Greenstone, in addition to his trial expertise, was also the firm's primary appellate practitioner, Goldsmith being then relatively uninitiated in that area of practice. Greenstone, based upon his consideration of all of the accumulated materials, factual, medical and legal, was disinclined to accept the representation, understanding that because of Gleitman it would, at best, involve a dismissal of the complaint at the trial level at some stage or other; a losing appeal to the Appellate Division, which would also be bound by Gleitman; an effort to solicit the interest of the Supreme Court sufficiently to induce its grant of a petition for certification; the prosecution of the appeal in the Supreme Court if certification were granted; and then finally, years down the road and after, presumably, substantial financing by the firm,*fn2 the opportunity to prepare the case for trial by way of the extensive discovery typical of the "heavy" medical malpractice case and the ensuing opportunity to try it before a jury with all the risks and difficulties characteristic of serious malpractice litigation. It was clearly a project fraught with obstacles and uncertainties at every stage, and Greenstone was not interested in pursuing it.

It was Goldsmith's trial testimony that while the final decision not to take the case was Greenstone's, he, Goldsmith, concurred with it. In any event, it is not disputed that he acceded to it and communicated that decision to Sherman by letter dated April 26, 1979, which read in full as follows:

Dear Harold:

We have finally come to a decision as to what to do with the Procanik case, after a great deal of discussion here in the office because of the problems presented by the case. Let me outline those problems to you as this forms the basis of our turning down this case.

The Procanik case basically falls into the area of a woman who had measles which was not definitively diagnosed, and, at approximately the same time was diagnosed as being pregnant. No steps were taken at that time. We are aware that Mrs. Procanik indicated that had she known of the potential problem, she would have undergone an abortion. We sent out the questions in the form of a possible malpractice case to an obstetrician/gynecologist, who felt that it was an extremely difficult position to put an obstetrician/gynecologist in. We did, however, decide not to leave it there and went ahead and reviewed the following:

1) Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967). As you are probably aware, this case prohibits the kind of action that would have to be brought herein. In other words, that type of action would be either a wrongful birth or an action for the purpose of trying to obtain damages for children who were born, and who would otherwise not have been born.

2) In January, 1979 two cases came down, reported as Nos. 559 and 560 of the Court of Appeals, New York entitled, Becker v. Schwartz and Park v. Chessin. These actions both are similar to Gleitman v. Cosgrove, and in effect, in New York, render a different opinion. It is possible that Gleitman could be reversed and it is further possible that the New Jersey courts could follow Becker v. Schwartz and Park v. Chessin. These cases do allow a person to sue under the circumstances of Procanik, and would allow the possibility of damages for life. It would mean, however, in Procanik, that the case would have to be started, face a dismissal at this level, and then obviously be appealed to the Supreme Court in the hopes of obtaining a reversal of Gleitman v. Cosgrove.

Considering the fact that the expert is somewhat weak on the case and considering the fact that it would have to be taken to the Supreme Court in order to obtain a reversal before a valid case could be brought, we have decided not to proceed. The law is dead against us in the State and the reversal would be necessary.

I am returning herewith all the hospital records that you were kind enough to send us. I will, if you like, send you a copy of the report of the expert. We have checked out every avenue and I think in all probability Mrs. Procanik did have measles, did become pregnant while she had the measles, and was not so informed. But because of the many and sundry other problems, we would not proceed.

Will you please be good enough to inform ...

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