Canesi ex rel. Canesi v. Wilson

• Decision Date: 17 June 1999
• Parties: Brandon CANESI, a minor by his parents Melissa and Sebastian CANESI as Guardian Ad Litem, Melissa and Sebastian Canesi, Individually, Plaintiffs-Appellants, v. James A. WILSON, M.D. and Ronald Loewe, M.D., Defendants-Respondents, and John Doe Physician (2-10) and John Doe Drug Manufacturer (1-10), Defendants.
• Court: New Jersey Supreme Court

730 A.2d 805

158 N.J. 490

Brandon CANESI, a minor by his parents Melissa and Sebastian CANESI as Guardian Ad Litem, Melissa and Sebastian Canesi, Individually, Plaintiffs-Appellants, v. James A. WILSON, M.D. and Ronald Loewe, M.D., Defendants-Respondents, and John Doe Physician (2-10) and John Doe Drug Manufacturer (1-10), Defendants.

Supreme Court of New Jersey.

Argued November 3, 1997.

Decided June 17, 1999.

Jay L. Hundertmark, Linwood, for plaintiffs-appellants (Valore Law Offices, attorneys).

Robert E. Paarz, Pleasantville, for defendant-respondent James A. Wilson, M.D. (Paarz, Master, Koernig, Crammer, O'Brien & Bishop, attorneys; Mary Ann C. O'Brien, on the letter in lieu of brief).

Donald J. Grasso, Toms River, for defendant-respondent Ronald Loewe, M.D. (Orlovsky, Grasso & Bolger, attorneys; Nina M.C. Halpin, on the letter in lieu of brief).

The opinion of the Court was delivered by HANDLER, J.

In this medical malpractice case, parents brought suit against two obstetricians after their child was born with the congenital defect of bilateral limb reduction. The parents' principal allegation was that the doctors were negligent in failing to warn them that a drug prescribed for the plaintiff mother posed the specific risk of fetal limb reduction and that the prescribed drug caused this defect. They also alleged other acts of negligence, including the failure to warn of general, unspecified fetal risks posed by the prescribed drug, and to take diagnostic measures during the mother's pregnancy that would have disclosed the presence of a fetal defect. They assert that as a result of defendants' negligence they were deprived of their right as parents to decide whether or not to terminate the pregnancy, they would have terminated the pregnancy had they been warned, and they are entitled to the damages allowable in a wrongful birth cause of action. The doctors, focusing on the parents' allegation that the prescribed drug caused their child's birth defect, characterize plaintiffs' claims as based on the doctrine of informed consent and contend, accordingly, that they cannot be found liable because the parents cannot prove medical causation, that is, that the drug was the medical cause of the child's congenital impairment.

In light of the contentions of the parties and the determinations of the lower courts, the basic issue that must be addressed is whether it is necessary to establish medical causation in a wrongful birth action that involves the prescription of drugs without adequate warning of the fetal risks posed by those drugs.

I

On July 1, 1991, plaintiff Melissa Canesi, then twenty-nine years old, consulted defendant Dr. James A. Wilson, a specialist in obstetrics and gynecology, concerned that she might be pregnant because she had been amenorrheic for eleven days. A urinalysis yielded the same results as a home pregnancy test had: plaintiff was not pregnant. Thereafter, Dr. Wilson prescribed for plaintiff Provera, a progestational agent designed to induce menstruation. Dr. Wilson did not provide any information to plaintiff concerning the potential side effects and contraindications of the drug. At the time, the Physicians' Desk Reference (PDR) warned that if a woman was or became pregnant while taking Provera, she should be advised that there was a risk that the fetus would suffer from congenital anomalies, including limb reduction, and a risk that she would retain a defective ovum instead of spontaneously aborting it.

Provera did not succeed in inducing menstruation and, on July 15, Dr. Wilson gave plaintiff a blood serum test to determine if she was pregnant. This time, the test was positive. Upon learning that she was pregnant with twins, plaintiff asked Dr. Wilson if her ingestion of Provera would have a deleterious impact on the fetuses or the course of her pregnancy. Dr. Wilson told plaintiff not to worry.

Because Dr. Wilson was not a participating physician in plaintiff's health insurance plan, she needed to look elsewhere for pregnancy care. On July 25, she saw Dr. Ronald Loewe for the first time and informed him both of her pregnancy and of the fact that she had taken Provera. Dr. Loewe told her that she should not be concerned that she had taken the drug.

Plaintiff's pregnancy was not without incident. She began spotting, one of the fetal twins died, and an amniocentesis revealed excessive amniotic fluid, an indication that the remaining fetus might be suffering from an abnormality. On March 18, 1992, plaintiff gave birth to a boy, Brandon, who had the congenital impairment of bilateral limb reduction.

Plaintiff, together with her husband Sebastian, sued Drs. Wilson and Loewe, alleging that Dr. Wilson was negligent for failing to diagnose her pregnancy in a timely manner, and that both doctors were negligent for failing to inform her of the effect her ingestion of Provera would have on her fetus and for "otherwise" negligently caring for and treating her. Plaintiff claimed that had she known of the risk of congenital defects generally, or limb reduction specifically, that Provera posed to her remaining fetus, or had she been told that she was at an increased risk of retaining a defective ovum, she would have terminated her pregnancy. Being kept ignorant of these risks, she asserted, deprived her of the personal choice of determining whether or not to terminate her pregnancy. The complaint also included a claim brought on behalf of Brandon. That claim alleged that Provera caused his bilateral limb reduction and that defendants were negligent in prescribing the drug to his mother without warning of this risk.

Defendants moved for summary judgment. They pointed out that not only did plaintiffs fail to present any expert testimony that Provera caused fetal limb reduction, but the latest edition of the PDR no longer contained a warning that Provera was even associated with this defect.¹ Construing the cause of action essentially to be one involving the lack of informed consent, the defendants contended that, because plaintiffs could not prove medical causation, i.e., that Provera had actually caused Brandon's limb reduction, defendants, as a matter of law, could not be found liable.

The trial court granted defendants' motion, noting that a plaintiff who alleges that her physician's malpractice consists of a failure to disclose material risks of a prescribed drug must prove that the drug in fact caused the harm that materialized. The Appellate Division affirmed. 295 N.J.Super. 354, 685 A.2d 49 (1996). The court determined that even if plaintiffs' claim was denominated a wrongful birth action based on the lost opportunity to terminate the pregnancy, plaintiffs still "must establish that the taking of Provera caused Brandon's limb reduction abnormalities." Id. at 362, 685 A.2d 49.

The Court granted plaintiffs' petition for certification. 149 N.J. 139, 693 A.2d 109 (1997).

II

A.

A wrongful birth cause of action is predicated on a woman's right to determine for herself whether or not to continue or terminate her pregnancy. Persons "have a right of their own either to accept or reject a parental relationship, and the deprivation of that right by the negligent misconduct of another creates a cause of action in the parents." Schroeder v. Perkel, 87 N.J. 53, 66, 432 A.2d 834 (1981). The right protects a distinctively personal interest. See Hummel v. Reiss, 129 N.J. 118, 136, 608 A.2d 1341 (1992) (Handler, J., dissenting)

(noting that because decision to terminate pregnancy "involve[s] profound moral and personal issues," it is one that "only [the patient] could make").

The violation of the interest in self-determination that undergirds a wrongful birth cause of action consists of the parents' lost opportunity to make the personal decision of whether or not to give birth to a child who might have birth defects. Schroeder, supra, 87 N.J. at 66,432 A.2d 834. The claim in a wrongful birth action can arise when a physician fails to provide adequate genetic counselling, see id. at 63, 432 A.2d 834, fails to detect a discoverable fetal defect or to inform the parents thereof, see Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979), fails to interpret test results properly, see Procanik v. Cillo, 97 N.J. 339, 478 A.2d 755 (1984),

or fails to warn of a child being born with a defect, see Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 656 P.2d 483, 491 (1983); see also Williams v. University of Chicago Hosp., 179 Ill.2d 80, 227 Ill.Dec. 793, 688 N.E.2d 130, 133 (1997) (stating that in wrongful birth actions, parents allege that they would not have carried fetus "to term if it had not been for the defendant's negligence in prenatal testing, genetic prognosticating, or counseling [them] as to the likelihood of giving birth to a physically or mentally impaired child" (internal quotation and citation omitted)).

Because the patient's protectable interest is the personal right of self-determination, the doctor's duty of disclosure must be sufficient to enable her to make an informed and meaningful decision concerning whether or not to continue the pregnancy.

Compensable damages in a wrongful birth case include the emotional injury of the parents caused by the deprivation of "the option to accept or reject a parental relationship with the child...." Berman, supra, 80 N.J. at 433, 404 A.2d 8. These damages also include the special medical expenses attributable to raising a child with a congenital impairment. See Schroeder, supra, 87 N.J. at 70,

432 A.2d 834. Damages, however, do not encompass the birth defect or congenital impairment itself. See Berman, supra, 80 N.J. at 429-30,

404 A.2d 8 (stating that plaintiff may not recover compensable damages for existence per se of child in impaired state).

Because in a wrongful birth action damages for the birth defect itself are not recoverable, the parents are not required to prove that the doctor's negligence caused the defect. See Keel v. Banach, 624 So....