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Giardina v. Bennett

Decided: August 10, 1988.


On certification to the Superior Court, Appellate Division.

For affirmance -- Chief Justice Wilentz, and Justices Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None. The opinion of the Court was delivered by Handler, J.


In this case, we deal with the claim of a distraught wife and husband, who contend that their baby was stillborn as a result of the negligence of their obstetrician. The far-reaching question posed by this claim is how our tort system should respond to the negligently caused death of a fetus. The immediate question that is presented is whether this claim gives rise to a statutory right of recovery under the state's Wrongful Death Act. We conclude that the medical malpractice causing an infant stillbirth constitutes a tort against the parents, entailing the direct infliction of injury, their emotional distress and mental suffering, for which they are entitled to recover compensatory damages.

By recognizing such a cause of action we protect the interests affected by the tortious conduct resulting in the death of an infant before birth. Similar concerns are also implicated in the statutory right of action provided by the Wrongful Death Act, under which the parents in this case seek to recover. We conclude, however, that the Wrongful Death Act does not permit recovery attributable to the wrongful death of an infant before birth.


This appeal is from the grant of summary judgment. According to the record as it is presented to us, reflecting plaintiff's version of the facts in the absence of a full adjudication, in October 1982, Regina Giardina was informed by the defendant, Gardiner Bennett, her obstetrician and gynecologist, that she was pregnant and that her due date was May 19, 1983. During the course of her pregnancy Giardina was regularly examined by defendant and his staff. When she was nearly two weeks overdue, he ordered a "non-stress test," and after its performance on June 3, 1983, Giardina was told that no problems had been revealed.

Over the course of the next nine days Giardina experienced intermittent pain and contractions, visited the hospital twice, and was examined by defendant twice. Bennett considered her symptoms common and allegedly refused to perform a Caesarean section. Late on the evening of June 12, 1983, when Giardina's contractions were three minutes apart, defendant instructed her to proceed to the hospital. Shortly after her admission, hospital staff became aware that no fetal heartbeat could be identified, and defendant later confirmed the baby was dead. Giardina was given a drug to induce labor, and the baby was stillborn the next afternoon, June 13, 1983.

The Giardinas contend defendant's treatment deviated from accepted standards of medical care. On June 11, 1985, they filed a complaint as co-administrators ad prosequendum for the infant's estate seeking compensatory damages against Bennett and unknown defendants, and damages for the infant's "conscious pain and suffering" prior to death. No claims on behalf of the Giardinas themselves were asserted for any personal injuries.

It was clarified in the course of the proceedings that the complaint was brought under the Wrongful Death Act. See N.J.S.A. 2A:31-2. The complaint was thus presented as a direct challenge to this Court's decision in Graf v. Taggart, 43 N.J. 303

(1964), in which we ruled that, due to the "uniformly speculative" nature of damages, a wrongful death action could not be maintained with respect to the pre-birth death of an infant. On June 6, 1986, defendant Bennett was granted summary judgment and plaintiffs appealed to the Appellate Division. On the appeal the parties presented the sole issue to be the applicability of the Wrongful Death Act to the death of a fetus. The Appellate Division summarily affirmed. Plaintiffs' petition for certification was then granted. 109 N.J. 490 (1987).


The plaintiffs, as noted, have brought suit under the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, seeking to recover damages attributable to the death of their infant before its birth. The cause of action they assert entails an interpretation of the Act that has thus far not been adopted by our courts. The novelty of the claim impels us to examine the nature of the injury arising from the wrongful conduct and to consider whether as a matter of common-law doctrine, and under the Wrongful Death Act, plaintiffs have presented a legal claim for compensatory damages.

Medical malpractice causing a stillbirth results in infliction of a direct injury to the mother as well as to her unborn child. Even without any permanent physical harm, the mother suffers severe and genuine injuries in the form of emotional distress and mental anguish occasioned by her baby's stillbirth. This suffering is experienced, also, by the father of the infant. Thus, in a case such as this, the injury suffered by the mother and father on the stillbirth of their eagerly expected first child is palpable and predictable.

The essence of the injuries that arise from this kind of tort inheres in family relationships. In Berman v. Allen, 80 N.J. 421 (1979), this Court recognized the significance of tight family ties. In sustaining a parents' cause of action for the deprivation of a choice to terminate a pregnancy, the Court allowed

recovery for their emotional distress resulting from their child being born with a congenital defect. The Court held that the parents had a cause of action for emotional distress against their doctor who, by failing to inform them of the availability of amniocentesis, through which they could have discovered the genetic abnormality of the fetus, deprived them of the opportunity to terminate the pregnancy and avoid the birth of the child. Id. at 433-34. The Court concluded that the emotional distress itself was a compensable injury and was an appropriate measure of compensatory damages. The parents, said the Court, "are entitled to be recompensed for the mental and emotional anguish they have suffered and will continue to suffer on account of [their child's] condition." Id. at 434.

The Court thus recognized in Berman that the shock and bitterness of parents in having been deprived of any choice concerning the birth of their child provided a basis for emotional distress damages. This was echoed in Schroeder v. Perkel, 87 N.J. 53 (1981). In that case, the doctors' malpractice consisted of negligent genetic counselling. The doctors had assured the parents that their first child did not have cystic fibrosis, when in fact she did. A second child was conceived and, following its birth, was found to suffer from the same genetic disorder. Id. at 66. We determined that the negligent failure to inform the parents of the genetic risk deprived them of the opportunity intelligently to consider the wisdom or desirability of having another child. Justice Pollock, speaking for the Court, observed:

The foreseeability of injury to members of a family other than one immediately injured by the wrongdoing of another must be viewed in light of the legal relationships among family members. A family is woven of the fibers of life; if one strand is damaged, the whole structure may suffer. The filaments of family life, although individually spun, create a web of interconnected interests. [ Id. at 63-64.]

Consistent with the holding in Berman, supra, 80 N.J. 421, the Court permitted compensatory damages for the parents' emotional distress attendant on the birth of their second child, who was tragically ...

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