Gleitman v. Cosgrove

• Decision Date: 06 March 1967
• Docket Number: No. A--35,A--35
• Parties: , 22 A.L.R.3d 1411 Jeffrey Robert GLEITMAN, an infant by his guardian ad litem, Irwin Gleitman and Sandra Gleitman, Plaintiffs-Appellants, v. Robert COSGROVE, Jr. and Jerome Dolan, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 22

49 N.J. 22

227 A.2d 689, 22 A.L.R.3d 1411

Jeffrey Robert GLEITMAN, an infant by his guardian ad litem, Irwin Gleitman and Sandra Gleitman, Plaintiffs-Appellants, v. Robert COSGROVE, Jr. and Jerome Dolan, Defendants-Respondents.

No. A--35.

Supreme Court of New Jersey.

Argued Nov. 21, 1966.

Decided March 6, 1967.

Louis Santorf, Paterson, for appellants (Leon A. Consales, Paterson, Attorney).

John W. Griggs, Hackensack, for respondents (Morrison, Lloyd & Griggs, Hackensack, attorneys).

The opinion of the court was delivered by

PROCTOR, J.

This is a malpractice suit for money damages. The trial judge dismissed the complaint of the infant plaintiff at the close of plaintiffs' case, and dismissed the complaints of his father and mother after all the evidence was heard. The appeal was certified to this Court on its own motion pursuant to R.R. 1:10--1(a) prior to argument in the Appellate Division.

The first count of the complaint is on behalf of Jeffrey Gleitman, an infant, for his birth defects. The second count is by his mother, Sandra Gleitman, for the effects on her emotional state caused by her son's condition. And the third court is by his father, Irwin Gleitman, for the costs incurred in caring for Jeffrey. Defendants, Robert Cosgrove, Jr. and Jerome Dolan, are physicians specializing in obstetrics and gynecology engaged together in the practice of medicine in Jersey City.

Sandra Gleitman consulted defendants on April 20, 1959. She was examined by Dr. Robert Cosgrove, Jr., and found by him to be two months pregnant. She informed him that on or about March 20, 1959 she had had an illness diagnosed as German measles. Mrs. Gleitman testified that Dr. Cosgrove, on receipt of this information and on inquiry by her, told her that the German measles would have no effect at all on her child.

For the next three months Mrs. Gleitman received her prenatal medical care from the army doctors at Fort Gordon, Georgia where her husband was stationed. She informed the army doctors about the German an measles she had had in her early pregnancy, and they instructed her to ask her regular physician about this when she returned home.

She next consulted defendants in July at which time she saw Dr. Dolan. Mrs. Gleitman testified that she repeated her inquiry about the effects of German measles and again received a reassuring answer. These inquiries and answers occurred on each of her subsequent monthly visits.

On November 25, 1959 Mrs. Gleitman was delivered of a boy, Jeffrey, at the Margaret Hague Maternity Hospital in Jersey City. Although at first the baby seemed normal, a few weeks later the substantial defects which Jeffrey has in sight, hearing, and speech began to become apparent. He has had several operations which have given him some visual capacity, and he attends a special correctional institute for blind and deaf children. His physical condition, which is seriously impaired, is not in dispute on this appeal.

Plaintiffs' medical expert, Dr. Louis Fraulo, gave his opinion that Jeffrey's condition was causally related to the viral disease of German measles which Mrs. Gleitman had in March. Dr. Fraulo testified that women who have German measles in the first trimester of their pregnancy will produce infants with birth defects in 20 to 50 per cent of the cases. Dr. Fraulo further stated that a physician who finds pregnancy and is given a history of German measles occurring during the term of pregnancy should inform his female patient of the likelihood of birth defects. In answer to a hypothetical question based on Mrs. Gleitman's testimony, Dr. Fraulo stated that defendants had deviated from generally accepted medical standards by not informing their pregnant patient of the likelihood of birth defects. A patient so informed, Dr. Fraulo testified, could then decide whether to bear the baby or have the pregnancy terminated by an abortion.

Dr. Robert Cosgrove, Jr. agreed that Mrs. Gleitman had consulted him for her pregnancy on April 20, 1959 and had thereafter been the patient of Dr. Dolan and himself until November 25, 1959 when Jeffrey was born. He further agreed that the history given him had included the illness of German measles in March, and acknowledged that his duty as a physician required him to inform his patient of the possibility of birth defects. He testified, however, that in the presence of Dr. Samuel Cosgrove, since deceased, and a woman who appeared to be the mother of Mrs. Gleitman, he told his patient of a 20 per cent chance her baby would have some defect. He also stated that he informed her that some doctors would recommend and perform an abortion for this reason, but that he did not think it proper to destroy four healthy babies because the fifth one would have some defect.

Dr. Dolan testified that Mrs. Gleitman whom he first saw in July when in any event it was too far along in the pregnancy for a medically safe abortion, had never asked him about the effects of German measles, and that he had never mentioned these effects to her. Dr. Dolan, as well as Dr. Edward C. Waters, who was called as an expert for defendants, agreed that a physician had the duty of informing his patient as to the likelihood of birth defects which they both estimated would occur in some 20 to 25 per cent of the cases where a female has German measles in the first trimester of her pregnancy.

The theory of plaintiffs' suit is that defendants negligently failed to inform Mrs. Gleitman, their patient, of the effects which German measles might have upon the infant then in gestation. Had the mother been so informed, plaintiffs assert, she might have obtained other medical advice with a view to the obtaining of an abortion. Plaintiffs do not assert that Mrs. Gleitman's life or health was in jeopardy during the term of her pregnancy.

As noted above the trial judge dismissed the three counts without submitting any of them to the jury. The claim of infant plaintiff was dismissed for failure to show that acts of the defendants were the proximate cause of Jeffrey's condition, and the claims by his mother and father were dismissed because the trial judge believed the suggested abortion would be criminal in New Jersey under N.J.S. 2A:87--1, N.J.S.A.

Because the complaint was dismissed on motion for judgment by defendants, the testimony on behalf of plaintiffs together with all reasonable inferences therefrom will be assumed to be true. The motion for judgment of dismissal concedes for purposes of the motion the truth of plaintiffs' evidence. Melone v. Jersey Central Power & Light Co., 18 N.J. 163, 170, 113 A.2d 13 (1955). Specifically, on this appeal we must take it to be the fact that Dr. Cosgrove, Jr., affirmatively misled Mrs. Gleitman on April 20, 1959 by telling her that the German measles she had in March would have no effect at all on her child then in gestation (despite the conflict in the evidence on this point).

For our discussion of this case we will asume that somehow or somewhere Mrs. Gleitman could have obtained an abortion that would not have subjected participants to criminal sanctions, and that she did not do so because she relied on the incorrect advice of the defendants.

At the outset it must be clearly understood that there is no suggestion by plaintiffs that defendants could have ordered any therapy--whether surgery, drugs or otherwise--which would have decreased the possibility that the infant then in gestation would be born with birth defects. The present case is sharply different from those cases where a deviation from standard medical practice affects the chances that an infant will be born with birth defects. In Sylvia v. Gobeille, R.I., 220 A.2d 222 (Sup.Ct.1966), plaintiff alleged that defendant physician should have given her mother gamma globulin when the mother consulted him for German measles which she had while pregnant. It was alleged that this therapy would have decreased the likelihood that plaintiff would be born with physical defects. In the present case there is no allegation that gamma globulin or any other therapy might have helped. ¹

The right of an infant to sue for prenatal torts was established in this State by Smith v. Brennan, 31 N.J. 353, 157 A.2d 497 (1960), where a child in gestation received injuries when his mother was in an automobile accident:

'The semantic argument whether an unborn child is 'a person in being' seems to us to be beside the point. There is no question that conception sets in motion biological processes which if undisturbed will produce what every one will concede to be a person in being. If in the meanwhile these processes can be disrupted resulting in harm to the child when born, it is immaterial whether before birth the child is considered a person in being. And regardless of analogies to other areas of the law, justice requires that the principle be recognized that a child has a legal right to begin life with a sound mind and body.' Id., 31 N.J., at p. 364, 157 A.2d, at p. 503.

An essential part of the cause for action set forth in Smith v. Brennan is the 'disruption' or proximate cause of injury by act of commission or omission which results in impairment to what otherwise would be a normal healthy child. In the present case there is no contention that anything the defendants could have done would have decreased the likelihood that the infant would be born with defects. The conduct of defendants was not the cause of infant plaintiff's condition.

The infant plaintiff is therefore required to say not that he should have been born without defects but that he should not have been born at all. In the language of tort law he says: but for the negligence of defendants, he would not have been born to suffer with an impaired body. In other words, he claims that the conduct of defendants prevented his mother from obtaining an abortion which would have terminated his existence, and that his very life is 'wrongful.'

The normal measure of...