Before Judges Havey, Wells, and Payne. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket no. L-8318-98.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this wrongful birth case, plaintiffs Milda Geler and Edward Faynin, the parents of a child who was born with Tay- Sachs disease and died just before the age of two, claimed malpractice on the part of obstetricians Richard Akawie and Michael Weingarten as the result of their alleged failure provide genetic counseling regarding the disease, to inform them of the availability of tests to determine whether they and their offspring carried the recessive gene causing the disease, and to follow up once it became apparent that initial paternal testing had not been conducted.
Following trial, the jury returned a verdict in favor of Akawie, the doctor who saw plaintiffs on their first visit on December 11, 1996 and on March 21, 1997, and against Weingarten, the doctor who saw them on three occasions commencing on January 2, 1997 and continuing through February 18, 1997, and then for an additional visit on April 24, 1997. *fn1 The jury awarded damages to plaintiffs for emotional distress in the total amount of $500,000, divided equally between them. However, that amount was reduced by one-third as the result of the operation of the doctrine of avoidable consequences, which the trial judge found to be applicable to the case. A judgment for the reduced amount, stipulated medical expenses and prejudgment interest was entered.
Prior to entry of judgment, Weingarten timely moved for a judgment notwithstanding the verdict (j.n.o.v.), claiming that plaintiffs had not demonstrated liability on his part or legally cognizable damages for emotional distress. The motion was denied as to liability and granted as to damages. Weingarten's alternative "conditional" motion for a new trial as the result of alleged attorney misconduct was denied. However, that denial did not constitute a determination on the merits of the conditional motion. The trial judge observed that it would have been granted if defendant had not prevailed on his motion for j.n.o.v. on the issue of emotional distress damages.
Plaintiffs appeal from entry of the order granting Weingarten's motion for j.n.o.v. on damages for emotional distress and from various rulings by the trial judge of relevance if the case is to be retried. Weingarten has cross- appealed, claiming error in the court's failure to grant a j.n.o.v. in his favor on liability or a new trial on liability and damages as the result of alleged misconduct on the part of plaintiffs' attorney, Bruce H. Nagel. We reverse and remand the case for a retrial of plaintiffs' liability and damage claims against Weingarten.
Tay-Sachs disease is a genetically-inherited, incurable condition that first appears in an infant at approximately six months of age, progressively causing mental retardation, blindness, seizures, and death between the ages of two and four years. The disease is most prevalent among Ashkenazi Jews, occurring in approximately one of 3,600 conceptions. Carrier testing of prospective parents and prenatal testing of the fetus are available for this disorder. The simplest test consists of a serum assay blood test performed on the father in a local lab. As an alternative, or as a necessary measure if the father's test result is positive, the mother can obtain a leukocyte assay test. However, only a limited number of laboratories perform that test, including Newark's Beth Israel Hospital. If both parents are found to carry the gene, a one in four chance exists that their children will be afflicted with the Tay-Sachs disease. Amniocentesis confirms the presence of the disease in an existing fetus. Parents who are informed that the disease has been transmitted may choose to abort an affected fetus.
On December 11, 1996, Geler was seen as a new patient by Akawie, one of five members of the Obstetrical and Gynecological Group of East Brunswick, P.A. Following a physical examination and testing that confirmed that Geler was eleven weeks pregnant, she and her husband, Faynin, met with Akawie in his office. What occurred during that office conference is sharply disputed by the parties. However, evidence at trial was sufficient for the jury to conclude that Akawie suggested at that time the possibility that Geler and Faynin, as Ashkenazi Jews, could each be carriers of the Tay-Sachs gene, provided information regarding the disease, advised testing, and directed Faynin to undergo the necessary serum assay blood test as quickly as possible. Testimony also provided a basis for the conclusion that Akawie gave Faynin the forms necessary to obtain the Tay-Sachs test at an outside lab. It is undisputed that Geler's medical records contain a notation by Akawie: "Husband for Tay-Sachs ASAP." *fn2 It is also undisputed that, at the end of the visit, Geler and Faynin were given a reference book on pregnancy, entitled A Miracle in the Making, that contained a section on genetic diseases, including Tay-Sachs, and a series of pamphlets, one of which, entitled Genetic Disorders, discussed the disease and its genetic origins. Both publications disclosed an increased risk among Ashkenazi Jews that they could serve as carriers of the Tay-Sachs gene, and they mentioned the availability of testing. It is not clear that either parents' attention focused on relevant portions of these materials. However, both understood that, as Jews, they had an increased risk of carrying genes that could lead to inherited disease.
Akawie saw Geler again on March 21, 1997. Although her chart did not indicate that Tay-Sachs testing had been performed, and no testing was ordered on that date, a jury could have concluded, as Akawie testified, that testing was no longer a realistic option, since the fetus was viable and an abortion, although legal, would not have been performed. Defendants' medical expert, Dr. Richard Bodner, confirmed that the accepted standard of medical care did not permit performance of an abortion in New Jersey at the time that results from any test conducted on March 21 were received. However, he acknowledged that abortions were performed in other states through the twenty-seventh or twenty-eighth week of pregnancy.
In the interval between Geler's visits to Akawie on December 11, 1996 and March 21, 1997, she was seen on three occasions by another group member, Weingarten: on January 2, 1997, January 20, 1997 and February 18, 1997. Faynin accompanied Geler on these and all other visits. A significant dispute exists as to what was discussed during these office visits, as well. Geler and Faynin testified that no counseling regarding Tay-Sachs was given, no follow-up took place regarding the absence of test results, and no testing was offered. Weingarten testified to the contrary, stating that counseling was provided and testing was urged on January 2 and January 20, but likely did not occur on February 18. In any case, Geler's chart contains no reference to a further discussion of the disease, and the space reserved for Tay- Sachs testing results remained empty. No prescriptions or lab test forms for Tay-Sachs testing were given to Geler or Faynin by Weingarten. Additionally, no notation that testing was declined appears in the chart.
Substantial testimony was introduced at trial to establish a duty of follow-up on the part of Weingarten that was independent of Akawie's initial informational duty. Weingarten testified that office protocol, based on standard medical practice, required, if no test result were placed in the chart, that he determine whether Tay-Sachs testing had occurred and conduct additional genetic counseling if it had not. Akawie testified that a failure by Weingarten to determine whether Faynin and/or Geler had undergone Tay-Sachs testing and to emphasize the significance of the testing would have constituted a breach of the standard of care applicable to practicing obstetricians. That duty, the doctors contended, existed so long as test results could reasonably have been obtained prior to the crucial twenty-fourth week of pregnancy when abortion became unavailable. Dr Stephen Leviss, a medical expert called by plaintiffs, also testified that the standard of care applicable to Weingarten required him to determine whether Tay-Sachs testing had been conducted, to reorder testing if it had not occurred, and to inform plaintiffs of the importance of the testing. However, it was his testimony that the duty extended throughout the pregnancy, regardless of the viability and advancing development of the fetus.
Plaintiffs' child, a girl that they named Shannon, was born on July 4, 1997. For the first five months of her life, she progressed normally. However, after that time, the child developed progressive neurological deficits which were diagnosed in late July 1998, after multiple consultations with experts, as symptoms of Tay-Sachs disease. Geler and Faynin determined that Shannon be cared for in the home. Her condition rapidly deteriorated. She experienced increasingly frequent seizures, she became blind and paralyzed, lost her hearing, and became non-responsive. Shannon died on June 1, 1999.
During the period of Shannon's illness, marital discord developed between Geler and Faynin, and they are now divorced. Faynin sometimes abuses alcohol. Both testified to the significant and ongoing emotional distress caused by their child's condition. Their testimony was corroborated by Shannon's treating physician, pediatric neurologist Dr. Arnold Gold, and by others. Neither obtained psychological treatment for their distress and neither lost time from work that was directly attributable to the distress.
Both Geler and Faynin testified that if they had been aware through Tay-Sachs testing that they were both carriers of the relevant gene, Geler would have undergone amniocentesis to determine whether their fetus was afflicted with the disease. Upon confirmation, they would definitely have terminated the pregnancy.
Plaintiffs have not appealed from the judgment entered in favor of Akawie on March 15, 2001. *fn3 We therefore first address the argument presented by Weingarten in his cross- appeal that the trial court erred in refusing to grant a judgment n.o.v. in his favor on the issue of liability. Weingarten argues in this regard that the jury's verdict against him is inconsistent with its exoneration of Akawie, and therefore it cannot stand. Weingarten's argument depends upon the postulate that the duty owed by him to plaintiffs was identical to the duty owed by Akawie, so that satisfaction of that duty by Akawie precluded liability on his part. However, as the preceding summary of testimony at trial discloses, Weingarten, Akawie and plaintiffs' expert Leviss all established a duty of follow-up that differed from the initial informational duty imposed upon Akawie. Further, substantial evidence supported plaintiffs' position that the duty had been breached. We therefore find no error by the trial court in denying this aspect of Weingarten's motion for judgment n.o.v. Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000); Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969).
We address next the arguments raised in plaintiffs' appeal that concern the standard of proof and evidence required to establish damages for emotional distress in this case. Plaintiffs argue in this regard that: (1) the trial judge employed the wrong standard of proof in formulating a jury charge concerning their claim of emotional distress arising from the wrongful birth of their genetically impaired daughter; (2) he erred in granting a judgment n.o.v. vacating the jury's damage award for emotional distress; and (3) he erred in barring evidence at trial of future emotional distress as the result of the absence of expert proof.
The trial judge relied for the substance of his jury instruction on the standard of proof of emotional distress on the precepts expressed by the Supreme Court in Carey v. Lovett, 132 N.J. 44 (1993), a case alleging injury to a mother and child from malpractice resulting in the premature birth of the child and in failure to recognize in a timely fashion that the child was born alive. The Carey Court held:
[T]o prove a claim for emotional distress arising out of the injury or death of a fetus, the mother must prove that she suffered emotional distress so severe that it resulted in physical manifestations or that it destroyed her basic emotional security. The father's emotional distress must be equally severe. The worry and stress that attend the birth of every child will not suffice. Nor will the upset that every parent feels when something goes wrong in the delivery room. In addition, the father must contemporaneously observe the malpractice and its effects on the victim. He must also be shocked by the results. [Id. at 62.]
Plaintiffs argue that the elevated standard imposed in Carey is not applicable in a case alleging injury to parents from the wrongful birth of a congenitally handicapped child. We agree. In doing so, we note a distinction between the judicial treatment of claims for parental emotional distress arising from negligence directed solely at the parents, as here, and claims for parental emotional distress arising from negligence also directly affecting their newborn child. This case falls within the former category, and thus squarely within Supreme Court precedent recognizing, without mention of an enhanced standard of proof, parental emotional distress as an element of damages in other genetic counseling malpractice contexts. See Berman v. Allan, 80 N.J. 421 (1979)(failure to offer amniocentesis that would have disclosed Downs' Syndrome); Schroeder v. Perkel, 87 N.J. 53 (1981)(failure to timely diagnose cystic fibrosis in a sibling); Procanik by Procanik v. Cillo, 97 N.J. 339 (1984)(failure to diagnose mother's German measles); and Canesi v. Wilson, 158 N.J. 490 (1999)(failure to inform mother of fetal risk from mother's ingestion of the drug Provera). *fn4
The fact that the Court has chosen not to impose an elevated standard of proof in genetic counseling malpractice cases is a logical consequence of the Court's determination to recognize a cause of action in this context for injury sustained by parents, alone. "[A]t bottom," the injury that is alleged is deprivation of the parents' "option of making a meaningful decision as to whether to abort the fetus." Berman, supra, 80 N.J. at 430. A concern over expansion of liability beyond the foreseeable emotional consequences of the tort, or over duplication of recovery as the result of the overlapping claims of parents and child, is not implicated in this type of case and has no relevance here.
The line of cases premised upon wrongful birth resulting from inadequate genetic counseling is thus distinguishable from cases such as Carey in which negligent injury to a fetus causes an otherwise normal child to die shortly after birth, or to be born in an impaired condition. Procanik, supra, 97 N.J. at 348. In wrongful birth cases, there is no claim that the negligence of the physician caused the child's impairments. The sole claim is that negligence precluded the parents' opportunity to decide whether to give birth to the impaired child in the first place. Thus, the parents' claim of injury is wholly independent from any claim asserted on the child's behalf. Schroder, supra, 87 N.J. at 65; Procanik, supra, 97 N.J. at 356. The Court's recognition of a right to "accept or reject a parental relationship" thus "protects a distinctively personal interest." Canesi, supra, 158 N.J. at 501 (citing Hummel v. Reiss, 129 N.J. 118, 136 (1992) (Handler, J., dissenting)).
Moreover, an award of damages for emotional distress has been recognized as one of the few avenues of redress for tortious conduct in this circumstance. The Berman Court held in the context of an alleged failure to inform prospective parents of the availability of amniocentesis as a means of detecting Downs Syndrome:
As in all other cases of tortious injury, a physician whose negligence has deprived a mother of this opportunity [to determine whether to undergo an abortion] should be required to make amends for the damage which he has proximately caused. Any other ruling would in effect immunize from liability those in the medical field providing inadequate guidance to persons who would choose to ...