On certification to the Superior Court, Appellate Division, whose opinion is reported at 247 N.J. Super. 502 (1991).
Clifford, Pollock, O'Hern, Garibaldi, Handler, Wilentz, Stein
The opinion of the court was delivered by
Kelly Hummel was born with severe brain defects on October 13, 1971, fifteen months before the United States Supreme Court established a woman's qualified right to an abortion in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). She filed this suit in 1988 against, among others, the physician and the hospital who had failed to provide her mother with the opportunity to obtain a therapeutic abortion. The trial court dismissed her claim and the Appellate Division affirmed. We granted certification, 126 N.J. 386 (1991).
On this appeal against the hospital only (the physician settled after the Appellate Division decision), plaintiff relies on our decision in Procanik v. Cillo, 97 N.J. 339 (1984), in which we recognized the wrongful-life cause of action: the right of a child born with birth defects to recover extraordinary medical expenses from a defendant who had negligently failed to inform the child's parents of the condition that produced those defects and thus had deprived the parents of the right to make an informed decision about whether to continue the pregnancy.
We affirm. We hold that plaintiff's reliance on Procanik is mistaken and that no wrongful-life cause of action exists for children who were born before Roe v. Wade.
In 1971 Judy Hummel was pregnant with her fourth child. Her obstetrician was defendant Dr. Norman Reiss, who had delivered her other children. (She had given birth to twins -- a boy and a girl -- in 1966, and to a boy in 1970. Those deliveries were by caesarean section. She suffered a miscarriage in 1965). On September 6, 1971, about four months before her January 24, 1972, due date, her amniotic sac ruptured. Dr. Reiss admitted her to St. Michael's Hospital, from which she was released two days later. She reentered the hospital with slight vaginal bleeding on September 26th and was released on September 28th.
On October 1, 1971, she entered the hospital a third time, suffering from a fever and other symptoms. The next day she delivered a stillborn, macerated fetus. Her symptoms continued, and an abdominal X-ray disclosed that she was carrying a second fetus. The symptoms had resulted from a serious intrauterine infection.
According to Judy Hummel, who testified on oral depositions, Dr. Reiss recommended that she undergo a therapeutic abortion and she told him that she wanted the abortion. (Dr. Reiss insisted, in his deposition testimony, that although a subsequent accident has eradicated his memory of the events, he would not have advised any woman to have even a therapeutic abortion nor would he have performed one. He testified that although evacuation of the uterus might have been appropriate, he would not have undertaken that procedure in such a way as to destroy the fetus.)
Kelly Hummel's birth on October 13, 1971, was by natural vaginal delivery. She weighed one pound, eleven-and-one-half ounces, and was in severe distress. She suffered psychomotor retardation, is legally blind, and has a mild hearing loss. She will require special care for the rest of her life.
On February 8, 1988, Kelly Hummel, through Judy Hummel as guardian ad litem, filed a complaint in the Law Division, naming as defendants Dr. Reiss, St. Michael's Hospital, and twenty fictitious defendants. She sought compensation for extraordinary medical expenses and for pain and suffering, on the grounds that the hospital had failed to "permit [sic] Judy Hummel with an abortion option notwithstanding the dangers presented to Kelly Hummel in continuing this pregnancy," and that Dr. Reiss had "failed to take appropriate steps to arrange proper medical treatment under the circumstances." The complaint alleged further that defendants had "departed from accepted standards of medical care in their treatment for Kelly Hummel * * * ." She filed an amended complaint on May 5, 1989, that phrased the breach of duty in terms of a duty to "Judy and Kelly Hummel" and added the assertion that defendants had breached a duty by not informing Judy Hummel of her right to be transferred to a hospital that would perform an abortion.
The trial court granted separate motions by Dr. Reiss and the hospital for, respectively, dismissal of the complaint for failure to state a claim on which relief can be granted and for summary judgment. In affirming, the Appellate Division reasoned that although a therapeutic abortion -- one that is performed to preserve the mother's health -- was legally available to Judy Hummel, she had not been harmed in any way by the failure to have undergone that procedure, and that a eugenic abortion -- one that terminates a pregnancy to avoid the birth of a severely-deformed child -- was not legally available in 1971. 247 N.J. Super. 502, 504 (1991).
The first case in which we addressed a claim by a child based on negligence to its then-pregnant mother was Gleitman v. Cosgrove, 49 N.J. 22 (1967). In Gleitman, the defendant-doctor had failed to inform the child's mother of the effect that rubella, which she had suffered early in her pregnancy, would have on the fetus. (Rubella, or German measles, is a mild childhood disease that when contracted in the early stages of pregnancy can cause severe damage to the fetus, resulting in devastating birth defects. 5 Lawyers' Medical Cyclopedia of Personal Injuries and Allied Specialties, § 37.11a (Charles J. Frankel et al. eds., 5th ed. 1986) (hereinafter Medical Cyclopedia).) Her son was born with severe defects in sight, hearing, and speech. Id. at 24-25.
The Gleitmans sued both on their own behalf and on behalf of their impaired son. They alleged that had they known that their son might be born so severely impaired, they would have sought other medical advice with a view to the obtaining of an abortion. Id. at 26. We gave two reasons for deciding that neither the parents nor the infant had stated a cognisable claim. First, a damage calculation was impossible because it involved measuring "the difference between [the boy's] life with defects against the utter void of nonexistence * * * ." Id. at 28. Second, to prevail, the infant plaintiff would have had to allege that he would have been better off not being born than being born with his impairments. Ibid. We rejected that premise, concluding that life with defects was better than no life at all. Id. at 30.
After the Supreme Court's decision in Roe v. Wade, supra, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, which established a woman's qualified right to terminate her pregnancy, this Court recognized causes of action of both parents and infants harmed by doctors' negligence in failing to inform parents of conditions that would bear on informed choice regarding whether to carry the pregnancy to full term. In a trilogy of cases discussed below, we recognized causes of action for wrongful birth (the parents' claims resulting from the birth of a severely-deformed child) and wrongful life (the child's claim for having been born with the deformity).
In the first of those cases, Berman v. Allan, 80 N.J. 421 (1979), we recognized a cause of action for wrongful birth. That case centered around the defendant-physicians' failure to advise a thirty-eight-year-old woman to undergo amniocentesis. (Amniocentesis is a procedure in which a long needle is inserted into the uterus to obtain a sample of the amniotic fluid. The procedure can signal the presence of chromosomal abnormalities, including Down's Syndrome, and of other potential problems. The procedure is considered advisable for women over the age of forty, and many doctors recommend it for women over the age of thirty-five. 5 Medical Cyclopedia, supra, at § 37.5j.) Her child was born with Down's Syndrome. We held that the parents had a cause of action because the mother had been deprived of the opportunity to choose whether to abort the fetus, id. at 431-32, but we rejected the infant's wrongful-life claim because the child had "not suffered any damage cognizable at law by being brought into existence," id. at 429.
The parents had requested damages to compensate both for the medical and other costs of raising the child and for emotional distress. Id. at 431. We rejected the former items of damages because of the benefits the parents would receive from the birth of the child -- "the love and joy they will experience as parents" -- and because the award of such damages was disproportionate to the doctors' negligence, giving the parents a windfall and unduly burdening physicians. Id. at 432.
In the second case, Schroeder v. Perkel, 87 N.J. 53 (1981), this Court allowed successful wrongful-birth claimants to recover the extraordinary medical expenses of raising their child. Id. at 66-71. (The infant plaintiffs had not appealed the trial court's dismissal of their claims.) The alleged negligence involved a failure to diagnose cystic fibrosis in the Schroeders' child Ann, thereby depriving them of the choices of whether to conceive a second child and whether to terminate the pregnancy. Cystic fibrosis is an incurable genetically-transmitted disease that causes, among other symptoms, severe respiratory problems and an inability to digest fats. It cannot be detected in a fetus but is easily detected after birth. Cystic-fibrosis victims usually die in their late teens. Id. at 58-59. When the disease was detected in Ann, Mrs. Schroeder was in her eighth month of pregnancy with a second child, Thomas, who also fell victim to the disease. Id. at 60.
The trial court denied the defendants' summary-judgment motion directed to the plaintiffs' demand for extraordinary medical expenses, and the Appellate Division reversed. We reversed, and held that if the parents prevailed on remand, they would be entitled to compensation for the costs they had incurred as a result of Thomas's cystic fibrosis. Id. at 70-71. We distinguished Berman by noting that "Mr. and Mrs. Schroeder will receive no compensating pleasure from incurring extraordinary medical expenses on behalf of Thomas. There is no joy in watching a child suffer and die from cystic fibrosis." Id. at 69.
In the third case, Procanik v. Cillo, supra, 97 N.J. 339, we recognized the child's cause of action for wrongful life, and held that a child may recover the lifetime extraordinary expenses resulting from a misdiagnosis that deprived its parents of the choice of terminating the pregnancy. We began our analysis by noting that a doctor's duty to a pregnant woman extends to the infant. Id. at 348-51. Having decided that, we concluded that the items of wrongful-birth damages we had approved in Schroeder, supra, 87 N.J. 53, were equally available in wrongful-life claims. 97 N.J. at 351-52. We concluded that the parents or the child can recover damages for extraordinary expenses incurred while the child was a minor, and that the child is entitled to similar damages during majority. Id. at 352. We also repudiated the logic that had supported the denial of the wrongful-life cause of action in Gleitman, Berman, and Schroeder:
Our decision to allow the recovery of extraordinary medical expenses is not premised on the concept that non-life is preferable to an impaired life, but is predicated on the needs of the living. We seek only to respond to the call of the living for help in bearing the burden of their affliction.
Plaintiff attempts to take the wrongful-life cause of action one step further and apply it to a situation that predates the recognition of the ...