Procanik by Procanik v. Cillo

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: POLLOCK; HANDLER; SCHREIBER
• Citation: 97 N.J. 339,478 A.2d 755
• Decision Date: 01 August 1984
• Parties: Peter PROCANIK, an infant by his guardian ad litem, Rosemarie PROCANIK and Rosemarie Procanik and Michael Procanik, individually, Plaintiffs-Appellants, v. Joseph Peter CILLO, Herbert Langer and Ernest P. Greenberg, Defendants-Respondents, and Harold A. Sherman, Lee S. Goldsmith and Greenstone, Greenstone & Naishuler, A Professional Corporation, Defendants.

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97 N.J. 339 478 A.2d 755 Peter PROCANIK, an infant by his guardian ad litem,
Rosemarie PROCANIK and Rosemarie Procanik and
Michael Procanik, individually,
Plaintiffs-Appellants,
v.
Joseph Peter CILLO, Herbert Langer and Ernest P. Greenberg,
Defendants-Respondents,
and
Harold A. Sherman, Lee S. Goldsmith and Greenstone,
Greenstone & Naishuler, A Professional
Corporation, Defendants. Supreme Court of New Jersey. Argued Jan. 23, 1984.
Decided Aug. 1, 1984.

[478 A.2d 757]

Page 342

Myron W. Kronisch, Livingston, for plaintiffs-appellants (Kronisch & Schkeeper, Livingston, attorneys).

Russell L. Hewit, Westfield, for defendants-respondents (Dughi & Hewit, Westfield, attorneys; Robert D. Mulvee, Westfield, on the brief).

The opinion of the Court was delivered by

POLLOCK, J.

The primary issue on this appeal is the propriety of a grant of a partial summary judgment dismissing a "wrongful life" claim brought by an infant plaintiff through his mother and guardian ad litem. That judgment, which was granted on the pleadings, dismissed the claim because it failed to state a cause of action upon which relief may be granted. R. 4:6-2(e).

The infant plaintiff, Peter Procanik, alleges that the defendant doctors, Joseph Cillo, Herbert Langer, and Ernest P. Greenberg, negligently failed to diagnose that his mother, Rosemary Procanik, had contracted German measles in the first trimester of her pregnancy. As a result, Peter was born with congenital rubella syndrome. Alleging that the doctors negligently deprived his parents of the choice of terminating the pregnancy, he seeks general damages for his pain and suffering and for "his parents' impaired capacity to cope with his problems." He also seeks special damages attributable to the extraordinary expenses he will incur for medical, nursing, and other health care. The Law Division granted defendants' motion to dismiss, and the Appellate Division affirmed in an unreported opinion.

We granted certification, 95 N.J. 176, 470 A.2d 404 (1983). We now conclude that an infant plaintiff may recover as special damages the extraordinary medical expenses attributable to his affliction,

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but that he may not recover general damages for emotional distress or for an impaired childhood. Consequently, we affirm in part and reverse in part the judgment of the Appellate Division, and remand the matter to the Law Division. I

Because this matter comes before us on the grant of a motion to dismiss, we focus on the complaint, which contains three counts. In the first count, Peter, through his guardian ad litem, seeks damages for birth defects and impaired childhood; in the second count, his parents seek damages for emotional distress and extraordinary medical expenses attributable to Peter's defects; and in the third count, his parents assert a claim for malpractice against their former attorneys. Accepting as true the allegations of the complaint, see, e.g., Portee v. Jaffee, 84 N.J. 88, 90, 417 A.2d 521 (1980), the complaint discloses the following facts.

The defendant doctors, Joseph Cillo, Herbert Langer, and Ernest P. Greenberg, are board-certified obstetricians and gynecologists who apparently conduct a group practice. [478 A.2d 758] On June 9, 1977, during the first trimester of her pregnancy with Peter, Mrs. Procanik consulted the defendant doctors and informed Dr. Cillo "that she had recently been diagnosed as having measles but did not know if it was German measles." Dr. Cillo examined Mrs. Procanik and ordered "tests for German Measles, known as Rubella Titer Test." The results "were 'indicative of past infection of Rubella.' " Instead of ordering further tests, Dr. Cillo negligently interpreted the results and told Mrs. Procanik that she "had nothing to worry about because she had become immune to German Measles as a child." In fact, the "past infection" disclosed by the tests was the German measles that had prompted Mrs. Procanik to consult the defendant doctors.

Ignorant of what an accurate diagnosis would have disclosed, Mrs. Procanik allowed her pregnancy to continue, and Peter

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was born on December 26, 1977. Shortly thereafter, on January 16, 1978, he was diagnosed as suffering from congenital rubella syndrome. As a result of the doctors' negligence, Mr. and Mrs. Procanik were deprived of the choice of terminating the pregnancy, and Peter was "born with multiple birth defects," including eye lesions, heart disease, and auditory defects. The infant plaintiff states further that "he has suffered because of his parents' impaired capacity to cope with his problems," and seeks damages for his pain and suffering and for his "impaired childhood."

In April 1983, while this matter was pending in the Appellate Division, Peter moved to amend the first count to assert a claim to recover, as special damages, the expenses he will incur as an adult for medical, nursing, and related health care services. In its opinion, the Appellate Division denied without prejudice leave to amend. Although this claim was not raised before the trial court and not considered by the Appellate Division, fairness, justice, and judicial efficiency persuade us to consider the claim for special damages.

The complaint, which was filed on April 8, 1981, contains two other counts. In the second count, Peter's parents seek damages for their emotional distress and for the extraordinary medical expenses attributable to Peter's birth defects. Before the trial court they stipulated, however, that they knew they had a potential cause of action by January 1978, nearly three years before instituting suit. The trial court ruled, therefore, that the parents' claim was barred by the two-year statute of limitations contained in N.J.S.A. 2A:14-2. Before us, however, the parents contend that their claim is derived from Peter's claim and that N.J.S.A. 2A:14-2.1, which tolls the statute of limitations during infancy, protects their claim. Hence, the parents ask us to recognize their claim.

In the third count, the parents assert a claim for malpractice against their former attorneys, alleging that they consulted defendant attorney Harold A. Sherman, who undertook to advise

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them of their legal rights. Mr. Sherman consulted with defendant attorneys Greenstone, Greenstone & Naishuler, a professional corporation specializing in medical malpractice claims. After conferring with Mr. Goldsmith of that firm, Mr. Sherman advised the parents on May 2, 1979 that they did not have a cause of action, and he never informed them that this Court had granted certification in Berman v. Allan on September 5, 1978.

In Berman, 80 N.J. 421, 404 A.2d 8, which was decided on June 26, 1979, we recognized that parents may recover for emotional distress for the "wrongful birth" of a child born with birth defects. The defendant attorneys, however, never advised Mr. and Mrs. Procanik that they had a cause of action, and the two-year statute of limitations ran on their claim on January 16, 1980. The trial court did not rule on the attorney malpractice claim, and that issue is not before us.

II

In this case we survey again the changing landscape of family torts. See Schroeder[478 A.2d 759] v. Perkel, 87 N.J. 53, 71, 432 A.2d 834 (1981). Originally that landscape presented a bleak prospect both to children born with birth defects and to their parents. If a doctor negligently diagnosed or treated a pregnant woman who was suffering from a condition that might cause her to give birth to a defective child, neither the parents nor the child could maintain a cause of action against the negligent doctor. Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967).

Like the present case, Gleitman involved a doctor who negligently treated a pregnant woman who had contracted German measles in the first trimester of her pregnancy. Reasoning from the premise that the doctor did not cause the infant plaintiff's birth defects, the Gleitman Court found it impossible to compare the infant's condition if the defendant doctor had not been negligent with the infant's impaired condition as a result of the negligence. Measurement of "the value of life

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with impairments against the nonexistence of life itself" was, the Court declared, a logical impossibility. Id. at 28, 227 A.2d 689. Consequently, the Court rejected the infant's claim.

The Court denied the parents' claim for emotional distress and the costs of caring for the infant, because of the impossibility of weighing the intangible benefits of parenthood against the emotional and monetary injuries sustained by them. Prevailing policy considerations, which included a reluctance to acknowledge the availability of abortions and the mother's right to choose to terminate her pregnancy, prevented the Court from awarding damages to a woman for not having an abortion. Another consideration was the Court's belief that "[i]t is basic to the human condition to seek life and hold on to it however heavily burdened." 49 N.J. at 30, 227 A.2d 689.

In the seventeen years that have elapsed since the Gleitman decision, both this Court and the United States Supreme Court have reappraised, albeit in different contexts, the rights of pregnant women and their children. The United States Supreme Court has recognized that women have a constitutional right to choose to terminate a pregnancy. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Recognition of that right by the high court subsequently influenced this Court in Berman v. Allan, supra, 80 N.J. 421, 404 A.2d 8.

In Berman, the parents sought to recover for their emotional distress and for the expenses of raising a child born with Down's Syndrome. Relying on Roe v. Wade, supra, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, the Court found that public policy now supports the right of a woman to choose to terminate a pregnancy. Berman v. Allan, supra, 80 N.J. at 431-32, 404 A.2d 8. That finding eliminated one of the supports...