Johnson v. Yeshiva University

• Court: New York Court of Appeals
• Citation: 396 N.Y.S.2d 647,42 N.Y.2d 818,364 N.E.2d 1340
• Parties: , 364 N.E.2d 1340 Steven D. JOHNSON, an Infant, by His Father and Natural Guardian, Walter Johnson, et al., Appellants, v. YESHIVA UNIVERSITY et al., Respondents, City of New York, Third-Party Defendant-Respondent.
• Decision Date: 12 May 1977

Page 647

396 N.Y.S.2d 647

42 N.Y.2d 818, 364 N.E.2d 1340

Steven D. JOHNSON, an Infant, by His Father and Natural Guardian, Walter Johnson, et al., Appellants, v. YESHIVA UNIVERSITY et al., Respondents, City of New York, Third-Party Defendant-Respondent.

Court of Appeals of New York.

May 12, 1977.

Beth J. Goldmacher, Hicksville, and Norman H. Dachs, Woodmere, for appellants.

Norman Bard and Sidney Voletsky, Brooklyn, for defendants-respondents.

W. Bernard Richland, Corp. Counsel, New York City (Bernard Burstein and L. Kevin Sheridan, New York City, of counsel), for third-party defendant-respondent.

MEMORANDUM.

The plaintiff mother gave birth to the infant plaintiff, who, born a "cri-du-chat" child, was doomed by that condition to a life of helpless physical and mental retardation. This action, brought by the child and its parents, is grounded on defendants' alleged medical malpractice in failing, when consulted for genetic counseling during the course of the pregnancy, to have advised and performed an amniocentesis, a diagnostic procedure which the plaintiffs assert would have revealed that the child the mother was bearing was afflicted with a chromosomal defect which preordained its abnormality and, on the basis of which, an informed decision could have been made as to whether an abortion that would terminate the fetus' existence should be obtained. ^*

Aside from the issues of negligence and proximate cause which they thereby seek to raise, plaintiffs' suit would have us freshly examine or re-examine a complex of legal questions. Among them is whether each of the parents has a cause of action to recover damages for the emotional effect produced on them by the birth of their deformed child and for the general and special damages that will have been occasioned to them in its rearing (see Chapman v. Schultz, 47 A.D.2d 806, 367 N.Y.S.2d 1018, decided on authority of Ziemba v. Steinberg, 45 A.D.2d 230, 357 N.Y.S.2d 265 (3-2 decision)). A subsidiary question is whether one or more of these categories of damages is too speculative to support a recovery. Posited too is whether the scope of the duty owed by the defendants flows directly to the patient-mother who was the object of the consultation, or whether her role is to be analogized to that of a bystander to an accident who witnesses injury to another (cf. Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419).

Also presented is whether, conceptually, an unborn child may have a recognizable legal right to recover for a "wrongful life". The seemingly metaphysical or imponderable queries that would result from such a concept could conceivably lead to alternative damage theories, including one that would require the evaluation of the difference between a life of physical and mental impairment and one of a person who never is born (Note, A Cause of Action for "Wrongful Life": A Suggested Analysis, 55 Minn.L.Rev. 58; see Stewart v. Long Is. Coll. Hosp., 35 A.D.2d 531, 313 N.Y.S.2d 502, affd. 30 N.Y.2d...