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Draper v. Jasionowski

October 18, 2004


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3875-02.

Before Judges King, Newman and Holston, Jr.

The opinion of the court was delivered by: Holston, Jr., J.A.D.


Argued September 15, 2004

The issue on this appeal is one of first impression. We decide there exists an independent cause of action for an infant, on reaching his majority, against his mother's obstetrician, for prenatal injuries caused by his vaginal delivery when the physician failed to obtain his mother's informed consent prior to delivery. We reverse and remand for trial.

The facts are not in dispute. Plaintiff, Patrick Draper, was born on April 18, 1982 at St. Peter's Hospital in New Brunswick. His mother, Valerie Cissou, was age twenty at the time of his birth.

Plaintiff was in a"frank breech" position with a large cranial vault while in his mother's womb. The delivering physician, defendant, Dr. Edward Jasionowski, was aware of his presentation prior to the delivery. Cissou signed consent forms for both vaginal and cesarean deliveries. She gave birth to plaintiff by vaginal breech delivery.

Plaintiff alleges defendant neither informed his mother of the option to do a cesarean section rather than a vaginal delivery, nor left the decision of his manner of delivery to his mother's choice. The delivery was complicated by a torn umbilical cord. According to the medical report of plaintiff's board certified obstetrics expert, Dr. Richard L. Luciani, plaintiff suffered from anemia, hypoxia and neurological damage, indicating a tremendous loss of blood secondary to the torn umbilical cord. Plaintiff was born with bilateral Erb's Palsy, an injury to the shoulders.

Plaintiff asserts that birth by cesarean section would have prevented his bilateral Erb's Palsy. Plaintiff initiated suit in 2002, twenty years after his birth. Plaintiff alleges that defendant had a duty to discuss the possibility of a caesarean delivery with his mother. Because defendant did not inform his mother of the cesarean section option for delivery, he failed to obtain her informed consent.

Defendant filed a motion for summary judgment on the informed consent issue alone. Plaintiff cross-moved for summary judgment on the same issue. On December 5, 2003, the Law Division judge granted defendant's motion for summary judgment and denied plaintiff's motion. The judge concluded that because a fetus does not have the ability to consent to a medical procedure, plaintiff could not sustain an independent cause of action arising out of his mother's alleged failure to consent to the method of delivery. We granted plaintiff's motion for leave to appeal. R. 2:2-3(b).

This appeal involves a purely legal issue. Because"[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference," our scope of review is de novo. Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995).

Defendant argues that the obligation to disclose the risks and alternatives to obstetric care runs solely to the mother and not the child. Defendant contends that plaintiff's informed consent claim is strictly derivative of the mother and time-barred. Defendant argues that no New Jersey case permits an individual, on his own behalf, to file a claim for informed consent for a procedure performed on someone else's body.

Plaintiff argues that New Jersey law recognizes that a doctor owes a duty to an infant in utero when treating his expectant mother. A doctor who fails in the duty of securing informed consent violates a duty owed to both the mother and the child. Plaintiff asserts that his claim is for his own injuries and is not derivative of any claim of his mother for her own injuries. The parties have stipulated that any cause of action which plaintiff's mother may have had is time-barred.

In Smith v. Brennan, 31 N.J. 353 (1960), our Supreme Court recognized a cause of action on behalf of an infant, born alive, for injuries suffered in utero. Sean Smith, while in the womb of his mother, was injured on July 25, 1956 in an automobile accident caused by the defendant's negligence. He was born about two months later with resulting deformities of his legs and feet. Defendants moved to dismiss on the ground that New Jersey does not recognize a cause of action for negligently-inflicted prenatal injuries. Id. at 355.

Our Supreme Court, in overruling Stemmer v. Kline, 128 N.J.L. 455 (E. & A. 1942), held that a surviving child should have a right of action in tort for prenatal injuries. The Court found that there was no reason to deny recovery for a prenatal injury because it occurred before the child was capable of separate existence. The Court reasoned that medical authority recognizes that an unborn child is a distinct biological entity and many branches of ...

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