P. v. Portadin

• Decision Date: 24 June 1981
• Citation: 179 N.J.Super. 465,432 A.2d 556
• Parties: P. and husband, Plaintiffs-Appellants, v. Ronald PORTADIN, M. D., and the Vineland Obstetrical and Gynecological Association, Defendants-Respondents, and Newcomb Hospital, Defendant.
• Court: New Jersey Superior Court — Appellate Division

Page 465

179 N.J.Super. 465

432 A.2d 556

P. and husband, Plaintiffs-Appellants, v. Ronald PORTADIN, M. D., and the Vineland Obstetrical and Gynecological Association, Defendants-Respondents and Newcomb Hospital, Defendant.

Superior Court of New Jersey, Appellate Division.

Submitted June 9, 1981.

Decided June 24, 1981.

Kotok & Kotok, Bridgeton, attys., for plaintiffs-appellants (Lester Kotok, Bridgeton, of counsel; Howard D. Melnicove, on the brief).

Horn, Kaplan, Goldberg & Gorny, Atlantic City, attorneys, for defendants-respondents (Leonard C. Horn, Atlantic City, of counsel; Wayne R. Rosenlicht, on the brief).

Before Judges MICHELS, KOLE and ARD.

The opinion of the court was delivered by

MICHELS, P. J. A. D.

Pursuant to leave of this court, plaintiffs Mr. & Mrs. P. appeal from an order of the Law Division entered in favor of defendants Ronald Portadin, M. D. and the Vineland Obstetrical and Gynecological Association (Vineland), dismissing "(a)ny and all claims for medical expenses and future child rearing expenses" and "leaving as the only issue with respect to damages the emotional distress of the parents."

Plaintiffs instituted this medical malpractice action against defendants, claiming that Dr. Portadin, an employee of both Vineland and defendant Newcomb Hospital, advised Mrs. P. to undergo a sterilization procedure; that Dr. Portadin obtained her consent to perform a particular kind of procedure (tubal ligation), but that he willfully performed another procedure (fallopian rings) without her consent, and, finally, that Dr. Portadin performed the unauthorized procedure negligently. They claim that as a result of Dr. Portadin's malpractice Mrs. P. became pregnant and gave birth to a normal child, and therefore she seeks damages for the pain and suffering sustained as a result of the birth of the child, the emotional upset she has undergone and will undergo, loss of income and the future cost of rearing the child. Her husband sues per quod and seeks to recover damages for the loss of his wife's services and the medical expenses he incurred for her prenatal care and delivery of the child.

Dr. Portadin and Vineland moved for summary judgment on the ground that the complaint failed to state a claim against them upon which relief could be granted, relying on the Supreme Court's decision in Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979). The trial judge refused to dismiss the complaint; however, on his own motion he amended or treated the motion as one to limit damages, and thereupon, limited plaintiffs' damage claims to those for emotional distress.

Plaintiffs contend on this appeal that the trial judge's action in amending or treating the motion as one to limit damages denied them their constitutional right of due process. We disagree. We think it was entirely appropriate case management for the trial judge in these circumstances to treat defendants' summary judgment motion as one to limit damages. It refined the issues for trial, with the result that there will be a savings of time and expense to both the litigants and the court.

Plaintiffs also contend that the trial judge erred in concluding that Berman v. Allan, supra, barred their claims for medical expenses and child support. In Berman the plaintiffs consulted the defendant physicians while Mrs. Berman was pregnant. Mrs. Berman later gave birth to a child afflicted with Down's Syndrome. The Bermans claimed that defendants were negligent in failing to inform them about a prenatal test for diagnosing genetic defects. The Supreme Court held that the Bermans' claim for "wrongful birth" based on the denial of an opportunity to make an informed decision concerning an abortion was maintainable, and that the parents could pursue their claim for damages for mental and emotional anguish they had suffered and would continue to suffer as a result of the child's condition. However, the Supreme Court held that the parents could not recover for medical or other expenses they would necessarily incur in properly raising, educating and supervising their child, stating:

Troublesome, however, is the measure of damages. As noted earlier, the first item sought to be recompensed is the medical and other expenses that will be incurred in order to properly raise, educate and supervise the child. Although these costs were "caused" by defendants' negligence in the sense that but for the failure to inform, the child would not have come into existence, we conclude that this item of damage should not be recoverable. In essence, Mr. and Mrs. Berman desire to retain all the benefits inhering in the birth of the child i. e., the love and joy they will experience as parents while saddling defendants with the enormous expenses attendant upon her rearing. Under the facts and circumstances here alleged, we find that such an award would be wholly disproportionate to the culpability involved, and that allowance of such a recovery would both constitute a windfall to the parents and place too unreasonable a financial burden upon physicians. See, e. g., Rieck v. Medical Protective Co., 64 Wis.2d 514, 219 N.W.2d 242, 244-245 (Sup.Ct.1974); Coleman v. Garrison, 349 A.2d 8 (Sup.Ct.Del.1975) (80 N.J. at 432-433, 404 A.2d 8)

The same underlying policy was expressed by the Supreme Court in Gleitman v. Cosgrove, 49 N.J. 22, 29-30, 227 A.2d 689 (1967), which was overruled in part by Berman v. Allan, supra, 80 N.J. at 431-434, 404 A.2d 8.

Plaintiffs further argue that Berman is distinguishable because it involved parents who wanted a child but had an abnormal child where as here, they did not want any child, even a normal child. They rely on Betancourt v. Gaylor, 136 N.J.Super. 69, 77, 344 A.2d 336 (1975), wherein the Law Division held that child-rearing costs could be recovered in an action for wrongful pregnancy based on negligent sterilization where a normal child is born. We see no distinction between a so-called "wrongful birth" action, as in Berman, and the so-called "wrongful pregnancy" action referred to in Betancourt v. Gaylor, supra. In our view, the rule laid down in Berman is applicable here and precludes recovery for the future expense which the parents may incur in raising, educating and supervising the child. See M. and Wife v. Schmid Laboratories, Inc., 178 N.J.Super. 122, 126-127, 428 A.2d 515 (App.Div.1981). This result finds persuasive support in Rieck v. Medical Protective Co. of Fort Wayne, Ind., 64 Wis.2d 514, 219 N.W.2d 242 (Sup.Ct.1974), wherein the court refused to award damages to parents of a normal child who claimed that defendants, a clinic and an obstetrician, failed to detect Mrs. Rieck's pregnancy in time to permit an abortion. What the Wisconsin Supreme Court stated there is worthy of being repeated:

The complaint raises question of public policy, or, more precisely, whether the public policy tests, heretofore laid down by this court, are here met. In this state, negligence plus an unbroken sequence of events establishing cause-in-fact does not necessarily lead to a determination that a defendant is liable for plaintiff's injuries. Recovery, or the determination to impose or not to impose liability, involves public policy considerations. Even where the chain of causation is complete and direct, recovery may sometimes be denied on grounds of public policy because: (1) The injury is too remote from the negligence; or (2) the injury is too wholly out of proportion to the culpability of the negligent tort-feasor; or (3) in retrospect it appears too highly extraordinary that the negligence should have brought about the...