Naccash v. Burger

• Citation: 290 S.E.2d 825,223 Va. 406
• Decision Date: 30 April 1982
• Docket Number: No. 791548,791548
• Court: Virginia Supreme Court
• Parties: Edmund P. NACCASH, M.D. v. Joseph BURGER, et al. Record

Page 825

290 S.E.2d 825

223 Va. 406

Edmund P. NACCASH, M.D. v. Joseph BURGER, et al.

Record No. 791548.

Supreme Court of Virginia.

April 30, 1982.

John F. Gionfriddo, Vienna, for appellant.

Haynie S. Trotter, Fairfax (Terrence Ney, Fairfax, Harold P. Green, Jonathan L. Kempner, Washington, D. C., Boothe, Prichard & Dudley, Fairfax, Fried, Frank, Harris, Shriver & Kampelman, Washington, D. C., on brief), for appellees.

Before CARRICO, C. J., and COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ.

CARRICO, Chief Justice.

The determinative question presented by this appeal is whether a cause of action exists in favor of parents for the so-called "wrongful birth" of a child. The question arose in the context of a motion for judgment filed in the trial court by Joseph Burger and Trudy Burger against Edmund P. Naccash, M.D., and certain other health care providers. The motion alleged that the defendants had negligently failed to discover that the fetus carried by Trudy Burger was affected by an incurable genetic disorder, causing her to forego an abortion and carry the child to term. The Burgers sought damages for the care and treatment of the child and for their mental anguish and suffering.

All the defendants except Dr. Naccash were dismissed by the trial court. The case against Dr. Naccash was submitted to a jury, which returned a verdict in favor of the Burgers for $180,948.06. We awarded Dr. Naccash an appeal from the final order confirming the verdict.

The record shows that Carrie Burger, the child in question, was born February 20, 1974, and that she died October 6, 1976, of Tay-Sachs disease. Tay-Sachs is an invariably fatal disease of the brain and spinal cord that occurs in Jewish infants of eastern European ancestry. A diseased child appears normal at birth, but, at four to six months, its central nervous system begins to degenerate, and it suffers eventual blindness, deafness, paralysis, seizures, and mental retardation. The life expectancy of an afflicted child is two to four years.

At the time of the events in question, a blood test was in general use throughout the country to identify carriers of the Tay-Sachs trait among potential parents having Jewish ancestry. A carrier is not affected by Tay-Sachs, but a child whose parents both are carriers stands a 25% chance of having the disease. If tests show that both parents are carriers, a further test known as amniocentesis is recommended to determine whether the fetus is afflicted with Tay-Sachs. ¹

Both Joseph and Trudy Burger are of eastern European ancestry. On September 5, 1973, when Mrs. Burger was three and one-half months pregnant with Carrie, her first child, the Burgers went to Arlington Hospital for Tay-Sachs tests. They were interviewed by Rosalie Green, a technician in the Cytogenetics Laboratory. Ms. Green advised the Burgers that there was no need to test Mrs. Burger unless Mr. Burger tested positive. Accordingly, Ms. Green withdrew blood from Mr. Burger alone. The blood was placed in two tubes labeled only with a number ostensibly assigned to Joseph Burger. The blood sample then was forwarded to a medical facility in Richmond for analysis, pursuant to arrangements previously made by Dr. Naccash and Ms. Green.

Subsequently, Ms. Green reported to the Burgers that the test results showed Mr. Burger was not a Tay-Sachs carrier. Satisfied with the report, Mrs. Burger "went ahead and had" her baby. Although the child developed normally at first, at four months she began showing signs of abnormality. She was examined and found to have Tay-Sachs.

Further tests showed that both Mr. and Mrs. Burger were Tay-Sachs carriers. The original blood sample purportedly withdrawn from Mr. Burger on September 5, 1973, was retested and again found negative. A positive sample supposedly withdrawn from another man at Arlington Hospital on the same date was also retested and again found positive. However, new tests of the other man's blood showed he was not a Tay-Sachs carrier. These circumstances prompted an expert witness to testify below that "only one conclusion ... can be drawn, and that is [Mr. Burger's] blood sample was incorrectly labelled [by Arlington Hospital]." The same witness stated that the error could have been averted simply by identifying each sample with the initials as well as the number of the particular donor.

Both Joseph and Trudy Burger testified that, had they known they were Tay-Sachs carriers, they would have insisted upon an amniocentesis and, if that test showed the fetus was afflicted with Tay-Sachs, Mrs. Burger would have had an abortion. ² Mrs. Burger expressed her feeling in these words: "There is nothing on this earth that would have made me have a baby with Tay-Sachs Disease."

The Burgers outlined for the jury the tragic course of the disease in Carrie and the nature and extent of the care and treatment she required as her condition degenerated; in her final months, she was confined in the Northern Virginia Training Center, where she ultimately died. The parents also recounted the emotional stress and mental anguish they suffered as a result of the child's worsening condition. Finally, the Burgers detailed the expenses they claimed for Carrie's care and treatment. The expenses totaled $30,948.06, including $2,274.26 for costs connected with Carrie's funeral and grave marker.

On appeal, Dr. Naccash contends that the essence of the parents' claim is for "wrongfully permitting the birth of the child to occur" and that, if a cause of action exists for this claim, it exists on behalf of the child alone and not the parents. Noting that this is a case of first impression in Virginia, Dr. Naccash cites Howard v. Lecher, 42 N.Y.2d 109, 366 N.E.2d 64, 397 N.Y.S.2d 363 (1977), where a physician had failed to test Jewish parents to determine whether their child would be affected by Tay-Sachs disease. When the child was born with Tay-Sachs, the parents brought a damage action against the doctor for their emotional stress and for the expenses of the child's care and treatment. By stipulation, the claim for care and treatment expenses was discontinued. On the claim for emotional stress, the court held that "[n]o cause of action exists ... for the unintentional infliction of harm to a person solely by reason of that person's mental and emotional reaction to a direct injury suffered by another." 42 N.Y.2d at 112, 366 N.E.2d at 66, 397 N.Y.S.2d at 365.

As the Burgers point out, however, Howard does not stand for the proposition that parents have no cause of action at all for damages sustained as a result of the birth of an impaired child; the decision disallowed only emotional damages. Eighteen months after Howard, the New York court decided in Becker v. Schwartz, 46 N.Y.2d 401, 386 N.E.2d 807, 413 N.Y.S.2d 895 (1978), that parents can recover care and treatment damages resulting from a wrongful birth.

The Burgers rely upon Becker and a New Jersey decision, Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979). In Berman, the parents of a child born afflicted with Down's Syndrome, or mongolism, brought an action against physicians for their failure to inform the parents of the availability of amniocentesis to determine whether the fetus was defective. The parents claimed damages both for the expenses necessary to raise the child and for their own past and future mental and emotional suffering. The New Jersey court held that the parents could not recover the expenses necessary to raise the child, stating that the parents desired to retain all the benefits inhering in the birth of the infant while saddling the defendants with the enormous expense of raising the child. This result, the court opined, would be wholly disproportionate to the culpability involved, would constitute a windfall to the parents, and would place an unreasonable financial burden upon the physicians. 80 N.J. at 432, 404 A.2d at 14.

However, the court upheld the parents' right to recover emotional damages. The court stated that, in failing to inform the mother of the availability of amniocentesis, the physicians "directly deprived her--and, derivatively, her husband--of the option to accept or reject a parental relationship with the child and thus caused them to experience mental and emotional anguish upon their realization that they had given birth to a child afflicted with Down's Syndrome." 80 N.J. at 433, 404 A.2d at 14. ³

The Burgers rely also upon Gildiner v. Thomas Jefferson Univ. Hospital, 451 F.Supp. 692 (E.D.Pa.1978). There, blood tests of the prospective parents revealed that both were Tay-Sachs carriers. An amniocentesis showed, however, that the fetus was unaffected by the disease. Foregoing the option of abortion, the mother proceeded with the pregnancy and gave birth to a child afflicted with Tay-Sachs. Contending that no cause of action existed on behalf of the parents, the defendants argued, inter alia, that the damages sought were not recoverable and that any cause of action should be created by the legislature. The court rejected these arguments and, anticipating what the Pennsylvania Supreme Court would decide, ruled that the parents could recover the expenses for the medical treatment of the child. ⁴

Because Dr. Naccash's argument suggests this court should defer to the legislature, we note with special interest the Gildiner court's observation on the question:

[The] holding that the [parents] have stated a cause of action for damages caused by negligence in the performance and interpretation of an amniocentesis involves the application of the doctrine of negligence ... to a recently developed medical procedure. The determination of the scope of the common law doctrine of negligence is within the province of the judiciary.

451 F.Supp. at 696. Whether a cause of action exists for the wrongs complained of and the damages sought here is a question that should be determined, in our opinion, according to traditional tort principles....