Becker v. Schwartz

Decision Date27 December 1978
Citation46 N.Y.2d 401,386 N.E.2d 807,413 N.Y.S.2d 895
Parties, 386 N.E.2d 807 Dolores E. BECKER et al., Respondents, v. Eugene D. SCHWARTZ et al., Appellants. Steven M. PARK et al., Individually and as Administrators of the Estate of Lara E. Park, an Infant, Deceased, Respondents-Appellants, v. Herbert CHESSIN et al., Appellants-Respondents.
CourtNew York Court of Appeals Court of Appeals

JASEN, Judge.

From its earliest days, the common law steadfastly clung to the notion that "in civil court the death of a human being could not be complained of as an injury." (Baker v. Bolton, 1 Camp. 493, 170 Eng.Rep. 1033 (KB, 1808).) Judicial hesitance to chart a novel course beyond the safe harbors afforded by prevailing legal theory, particularly the principle that a tort died with its victim (Huggins v. Butcher, 1 Brown & Gold 205, 123 Eng.Rep. 756 (CP, 1607)), spurred legislative recognition of the cause of action since known as "wrongful death". (See, generally, Prosser, Torts (4th ed), § 127.) Ironically, in the relatively brief period since the enactment of the first wrongful death statute (Fatal Accidents Act, 1846, 9 & 10 Vict., ch. 93), evolving legal theory has come full cycle. Although no longer shackled by the conceptual difficulties formerly posed by a "wrongful death" action, courts have again been drown toward the murky waters at the periphery of existing legal theory to test the validity of a cause of action for what has been generically termed "wrongful life".

In Becker v. Schwartz, Dolores Becker, then 37 years of age, conceived a child in September, 1974. After Dolores and her husband, Arnold Becker, learned of the pregnancy in October, they engaged the services of defendants, specialists in the field of obstetrics and gynecology. Thereafter, from approximately the tenth week of pregnancy until the birth of their child, Dolores Becker remained under defendants' exclusive care. Tragically, on May 10, 1975, Dolores Becker gave birth to a retarded and brain-damaged infant who suffers, and will continue to suffer for the remainder of her life, from Down's Syndrome, commonly known as mongolism. 1

It is plaintiffs' contention that throughout the period during which Dolores Becker was under the care of defendants plaintiffs were never advised by defendants of the increased risk of Down's Syndrome in children born to women over 35 years of age. Nor were they advised, allege plaintiffs, of the availability of an amniocentesis test 2 to determine whether the fetus carried by Dolores Becker would be born afflicted with Down's Syndrome.

Plaintiffs commenced this action seeking damages on behalf of the infant for "wrongful life", and, in their own right, for the various sums of money they will be forced to expend for the long-term institutional care of their retarded child. Plaintiffs' complaint also seeks damages for the emotional and physical injury suffered by Dolores Becker as a result of the birth of her child, as well as damages for the injury suffered by Arnold Becker occasioned by the loss of his wife's services and the medical expenses stemming from her treatment.

Upon motion by defendants, Special Term dismissed plaintiffs' complaint in its entirety as failing to state a cause of action. The Appellate Division modified the order of Special Term, however, sustaining plaintiffs' complaint except to the extent that it seeks recovery of damages "for psychiatric injuries or emotional distress of plaintiff Dolores E. Becker and to the extent that plaintiff Arnold Becker's claim for loss of services and medical expenses is based upon such psychiatric injuries". (60 A.D.2d 587, 400 N.Y.S.2d 119.) Defendants now appeal to this court on a certified question.

In the companion case, Park v. Chessin, Hetty Park gave birth in June, 1969 to a baby who, afflicted with polycystic kidney disease, 3 died only five hours after birth. Concerned with a possible reoccurrence of this disease in a child conceived in the future, Hetty Park and her husband, Steven Park, consulted defendants, the obstetricians who treated Hetty Park during her first pregnancy, to determine the likelihood of this contingency. In response to plaintiffs' inquiry defendants are alleged to have informed plaintiffs that inasmuch as polycystic kidney disease was not hereditary, the chances of their conceiving a second child afflicted with this disease were "practically nil". Based upon this information, plaintiffs alleged that they exercised a conscious choice to seek conception of a second child, As a result, Hetty Park again became pregnant and gave birth in July, 1970 to a child who similarly suffered from polycystic kidney disease. Unlike their first child, however, plaintiffs' second child survived for two and one-half years before succumbing to this progressive disease.

Alleging that contrary to defendants' advice polycystic kidney disease is in fact an inherited condition, and that had they been correctly informed of the true risk of reoccurrence of this disease in a second child, they would not have chosen to conceive, plaintiffs commenced this action seeking damages on behalf of the infant for "wrongful life" and, in their own right, for the pecuniary expense they have borne for the care and treatment of their child until her death. Plaintiffs' complaint also seeks damages for the emotional and physical injuries suffered by Hetty Park as the result of the birth of her child; damages for emotional injuries and expenses suffered by Steven Park; damages for the injury suffered by Steven Park occasioned by the loss of his wife's services; and damages on behalf of plaintiffs, as administrators of their child's estate, for wrongful death.

Upon defendants' motion to dismiss plaintiffs' complaint, Special Term sustained those causes of action seeking damages for: "wrongful life"; plaintiffs' pecuniary expense in caring for the child; Hetty Park's emotional and physical injuries stemming from the birth; and Steven Park's loss of his wife's services. On appeal taken by defendants, the Appellate Division modified by further dismissing so much of plaintiffs' complaint as seeks damages "(1) for the 'mental anguish' or emotional distress of plaintiff Hetty B. Park and (2) for the loss of that plaintiff's services, insofar as the claim for loss of services is based upon her mental anguish or emotional distress". (60 A.D.2d 80, 95, 400 N.Y.S.2d 110, 114.) Plaintiffs and defendants cross-appeal to this court on a certified question.

At the outset, emphasis must necessarily be placed upon the posture in which these cases are now before this court. The question presented for review is not whether plaintiffs should ultimately prevail in this litigation, but rather, more narrowly, whether their complaints state cognizable causes of action. For the purposes of our review, limited as it is to an evaluation of the sufficiency of plaintiffs' complaints, their allegations must be assumed to be true. (See Howard v. Lecher, 42 N.Y.2d 109, 112, 397 N.Y.S.2d 363, 365, 366 N.E.2d 64, 65; Cohn v. Lionel Corp., 21 N.Y.2d 559, 562, 289 N.Y.S.2d 404, 407, 236 N.E.2d 634, 636; Kober v. Kober, 16 N.Y.2d 191, 193, 264 N.Y.S.2d 364, 365, 211 N.E.2d 817, 818.) Accordingly, we accept, without expressing any opinion as to defendants' liability, each of plaintiffs' allegations: to wit, that defendants failed to inform plaintiffs accurately of the risks involved in their pregnancies, and, in Becker, of the availability of an amniocentesis test; and, that had they been accurately informed, plaintiffs would have, in Park, chosen not to conceive a second child, and, in Becker, undergone an amniocentesis test, the results of which would have precipitated a decision on their part to terminate the pregnancy.

Even as a pure question of law, unencumbered by unresolved issues of fact, the weighing of the validity of a cause of action seeking compensation for the wrongful causation of life itself casts an almost Orwellian shadow, premised as it is upon concepts of genetic predictability once foreign to the evolutionary process. It borders on the absurdly obvious to observe that resolution of this question transcends the mechanical application of legal principles. Any such resolution, whatever it may be, must invariably be colored by notions of public policy, the validity of which remains, as always, a matter upon which reasonable men may disagree.

Thoughtful analysis of the validity of "wrongful life" as an emerging legal concept requires, in the first instance, a clear understanding of the alleged wrong upon which the cause of action is predicated. Not surprisingly, the term "wrongful life" has functioned as a broad umbrella under which plaintiffs alleging factually divergent wrongs have sought judicial recognition of their claims. 4 To be distinguished from the cases before us are those in which recovery is sought for what may perhaps be most appropriately labeled "wrongful conception", wherein parents, one of whom has undergone an unsuccessful surgical birth control procedure, have sought damages for the birth of an unplanned child. There, damages have not been sought on behalf of the child a healthy and normal infant but by the parents for expenses attributable to the birth, including the pecuniary expense of rearing the child. Judicial reaction to the "wrongful conception" cause of action has been mixed. 5 In a somewhat similar vein, recovery has been sought for damages incurred upon the birth of a child attributable to a "wrongful...

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    ... ... to the parents; despite the affliction of the child, the "parents may yet experience a love that even an abnormality cannot fully dampen." Becker v. Schwartz, 46 N.Y.2d 401, 414-15, 386 N.E.2d 807, 814, 413 N.Y.S.2d 895, 912 (1978). Indeed, Mrs. Phillips readily admitted that she loved her ... ...
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