SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3846-96T1
STANLEY MICHELMAN,
Plaintiff-Appellant,
v.
PAUL EHRLICH, M.D., EHRLICH &
GOLDFARB, P.A., ROCHE BIOMEDICAL
LABORATORIES, AND MAYO MEDICAL
LABORATORIES,
Defendants-Respondents.
____________________________________________________________
Argued March 17, 1998 - Decided May 6, 1998
Before Judges Keefe, P.G. Levy and Wecker.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County.
Bruce H. Nagel argued the cause for appellant
(Nagel Rice & Dreifuss, attorneys; Mr. Nagel,
of counsel and on the brief; Robert H.
Solomon, on the brief).
Mary Elizabeth Gazi argued the cause for
respondents Paul Ehrlich, M.D. and Ehrlich &
Goldfarb, P.A. (Thomas B. Leyhane, attorney;
Ms. Gazi, on the brief).
Phillip J. Duffy argued the cause for
respondent Roche Biomedical Laboratories
(Gibbons, Del Deo, Dolan, Griffinger &
Vecchione, attorneys; Mr. Duffy and Mark S.
Sidoti, on the brief).
Frank Fazio argued the cause for respondent
Mayo Medical Laboratories (Porzio, Bromberg &
Newman, attorneys; D. Jeffrey Campbell, of
counsel; Mr. Fazio, of counsel and on the
brief).
The opinion of the court was delivered by
KEEFE, J.A.D.
The issue to be decided is whether plaintiff, Stanley
Michelman, may bring an action for his grandson's "wrongful
birth."
This case involves a tragic incident in which plaintiff's
grandson, Evan Ungerleider, was born afflicted with Tay-Sachs
disease, a neurological disease that prevents the development of
motor skills and is eventually fatal.See footnote 1 In a separate action from
the one now before this court, Evan, along with his parents, Jeff
and Shari Ungerleider, have filed both "wrongful life" and
"wrongful birth" causes of action, respectively, against
defendants Paul Ehrlich, Ehrlich & Goldfarb, P.A., Roche
Biomedical Laboratories, and Mayo Medical Laboratories
(collectively, "the defendants").See footnote 2 As of the filing of this
appeal, that cause of action is pending in the Law Division.
Plaintiff's complaint, naming the same defendants, mirrors
the parents' claim that defendants were negligent in failing to
inform Shari Ungerleider of abnormalities in the fetus.
Plaintiff seeks to be compensated for defendants' negligence
because he "has suffered and will continue to suffer severe
emotional pain . . . due to his grandson Evan's crippling and
fatal affliction." Recognizing that a grandparent does not have
a cognizable cause of action for "wrongful birth" under New
Jersey law, plaintiff argued in the Law Division that a cause of
action for "wrongful birth" in favor of a grandparent is a
logical extension of extant Supreme Court precedent. On
defendants' motion, Judge Winard dismissed plaintiff's complaint
for failure to state a claim upon which relief can be granted.
R. 4:6-2.
Plaintiff now appeals from that judgment. Conceding as he
did before the Law Division that New Jersey law, as it now
stands, does not provide a grandparent with a cognizable cause of
action for "wrongful birth," plaintiff urges this court to
"advance the frontier of family torts." Plaintiff argues that a
grandparent is a "filament of family life," and the injury
suffered by Evan affects the entire family unit; therefore,
plaintiff contends that he should be able to bring an action
against the defendants for the emotional damages he has suffered.
We affirm the decision of the Law Division and conclude that
extension of the cause of action for "wrongful birth" in favor of
a grandparent is inconsistent with our tort law and contrary to
the principles undergirding that cause of action.
The concepts of "wrongful birth" and "wrongful life" are of recent vintage in our law. These actions generally arise where a doctor fails to diagnose or inform the parents that the child might be born with abnormalities in time to permit the parents to make the decision whether to terminate the pregnancy. See Prosser and Keeton on Torts 370 (5th ed. 1984). While most jurisdictions allow parents to recover under a "wrongful birth" theory, a child's action for "wrongful life" has not been met with favor. Id. at 372; see generally Gregory Sarno, Annotation, Recoverability of Compensatory Damages for Mental Anguish or Emotional Distress for Tortiously Causing Another's Birth, 74 A.L.R.4th 798 (1989 and 1997 Supp.); Gregory Sarno, Annotation, Tort Liability for Wrongfully Causing One to Be Born, 83 A.L.R.3d 15 (1978 and 1997 Supp.).
In the first New Jersey case to address the issue of "wrongful birth," the Supreme Court rejected the claim, explaining that the "public policy supporting the preciousness of human life" and the impossibility of measuring the damages of becoming parents of a defective child outweighed any countervailing interest the parents might have to emotional and monetary injuries. Gleitman v. Cosgove, 49 N.J. 22, 29-31 (1967). The Court also rejected any claim for "wrongful life" on behalf of the infant, reasoning that the "Court cannot weigh the value of life with impairments against the nonexistence of life itself." Id. at 28.
In 1973, the Supreme Court of the United States decided Roe
v. Wade,
410 U.S. 113,
93 S. Ct. 705,
35 L.Ed.2d 147 (1973),
recognizing a woman's constitutional right to terminate her
pregnancy. That decision determined that a woman, at least
during the first trimester of pregnancy, has a privacy right to
abort the fetus without state interference. Recognizing the
"changes in the law which have occurred in the 12 years since
Gleitman," and the impact the decision in Roe v. Wade had on the
rationale of Gleitman, the New Jersey Supreme Court in Berman v.
Allen,
80 N.J. 421 (1979) overruled Gleitman and held that
"wrongful birth" is a cognizable cause of action in New Jersey.
In Berman, the parents of an infant born with Down's
Syndrome brought a cause of action individually, as well as on
behalf of the child as her guardians ad litem, against doctors
who allegedly failed to inform Mrs. Berman of the procedure known
as amniocentesis. Id. at 424. The complaint alleged that if
Mrs. Berman had been informed about the procedure, she would have
had the test, discovered that the child, if born, would be
afflicted with Down's Syndrome, and would have aborted the fetus.
Id. at 425.
First, the Court rejected the infant's "wrongful life" claim.
Basing its decision on grounds similar to Gleitman, the Court
held that public policy mandates that the sanctity of human life,
even if in an impaired state, be preferred over nonexistence.
Thus, a claim stating that the infant "would be better off had
she never been brought into the world" at all could not be
maintained. Id. at 430.
As to the parents' claim for "wrongful birth," however, the
Court held that such an action was cognizable. Id. at 430-34.
According to the Court, in light of Roe v. Wade a woman cannot be
denied, at least in the first trimester of pregnancy, a
meaningful opportunity to have an abortion. Id. at 432.
Corresponding with this right, then, is the remedy of making
amends for the damage proximately caused by "a physician whose
negligence has deprived a mother of this opportunity." Ibid.
"Any other ruling," the Court noted, "would in effect immunize
from liability those in the medical field providing inadequate
guidance to persons who would choose to exercise their
constitutional right to abort fetuses which, if born, would
suffer from genetic defects." Ibid. Consequently, the Court
held that "Mr. and Mrs. Berman have stated actionable claims for
relief," and, while denying the parents damages for medical
expenses, the parents may be compensated "for the mental and
emotional anguish that they have suffered and will continue to
suffer on account of (the infant's) condition." Id. at 433-34.
Since Berman the Court has twice revisited the issue. Two
years later in Schroeder v. Perkel,
87 N.J. 53 (1981), the Court
expanded the tort to include the parents' recovery for medical
expenses required by the child. Id. at 65. Interestingly, in
addition to expanding the parents' basis for recovery, the
Schroeder Court also decided to "reanalyze" the rationale for the
"wrongful birth" cause of action in terms of a traditional tort
duty analysis. Id. at 62 (explaining that in determining the
rights and duties of the parties in a "wrongful birth" case,
courts must consider whether the defendant physicians or medical
staff owed a duty to the parents to diagnose and inform them of
an abnormality in the child).
In Schroeder, parents brought suit against defendant
physicians for negligently failing to diagnose cystic fibrosis in
their first child. The complaint alleged that because the
doctors did not make them aware they were carriers of cystic
fibrosis, they were deprived of an informed decision whether to
have their second child. Id. at 57. In passing on the propriety
of the parents' claim, the Court, while not abandoning the
rationale set forth in Berman, see id. at 67 (recognizing that
the creation of the "wrongful birth" cause of action was "in part
because of the constitutional right of a woman to abort a
pregnancy"), chose to analyze this case on the concept of
negligence and tort duty. Id. at 62-66. Applying traditional
tort duty principles, and reaching the conclusion that physicians
have a duty to disclose material information to the parents that
would help inform their decision whether to terminate a
pregnancy, the Court reasoned that it is foreseeable that such
negligence would cause legal damage, both in terms of emotional
damages and certain medical expenses. Id. at 65. On the issue
of foreseeability, the Court recognized that "foreseeability of
injury to members of a family other than the one immediately
injured[,] [i.e., the child,] by the wrongdoing of another must
be viewed in light of the legal relationships among family
members." Id. at 63. Showing the legal connection between the
physicians' wrongdoing and the parents' harm in this case, the
Court explained that a physician's duty "may extend beyond the
interests of a patient to members of the immediate family of the
patient who may be adversely affected by a breach of that duty."
Id. at 65. According to the Court, "[f]oreseeability of harm to
parents from an injury to a child flows not only from the bonds
between parent and child, but also from the responsibility of
parents to provide medical care for their children." Id. at 64.
Three years later in Procanik by Procanik v. Cillo,
97 N.J. 339 (1984), the Court for the first time recognized a limited
action in favor of an infant for "wrongful life." In Procanik,
both the infant and his parents brought claims against physicians
who were allegedly negligent in failing to diagnose and inform
Mrs. Procanik that she had contracted German measles during the
first trimester of her pregnancy. Id. at 342. After giving
birth to the child with birth defects, and discovering that they
had a potential cause of action against the doctors, the
Procaniks waited three years to bring an action. Id. at 344.
The trial court ruled that the parents' complaint was time
barred. Ibid.
On certification to the Supreme Court, the Court first
analyzed the infant's "wrongful life" claim. In doing so, the
Court made a clear distinction between an infant's claim for
emotional damages and a claim for extraordinary medical expenses.
With regard to the infant's claim for emotional damages, the
Court remained steadfast in its position that no such cause of
action is recognized under New Jersey law. Id. at 353. The
Court reiterated the "philosophical problem of finding that . . .
a defective life is worth less than no life at all." Ibid.
However, as to the infant's claim for extraordinary medical
expenses, this case presented the Court with a perplexing
problem. Because the parents' "wrongful birth" claim was time
barred, the court was faced with the difficult decision of either
denying recovery for medical expenses entirely or overruling
Gleitman and Berman to the extent that those decisions rejected a
claim for medical expenses on behalf of the infant. The Court
chose the latter option.See footnote 3
Analyzing the cause of action under negligence and duty
standards, and finding that the doctors owed the infant a duty,
id. at 348, the Court reasoned that its decision to allow the
infant to bring a cause of action for extraordinary medical
expenses, where the parents could not, was a response "to the
call of the living for help in bearing the burden of their
affliction." Id. at 353. In so finding, the Court noted that
"[w]hen a child requires extraordinary medical care, the
financial impact is felt not just by the parents, but also by the
injured child." Id. at 351. Therefore, the Court concluded that
"a child or his parents may recover special damages for
extraordinary medical expenses incurred during infancy, and that
the infant may recover those expenses during his majority." Id.
at 352. In reaching this conclusion, the Court expressly noted
that the infant's claim for medical expenses was "separate" from
the parents' claim for pain and suffering. Id. at 356. Thus,
the parents' time barred claim could not be resuscitated by the
child's claim. Id. at 355-56.
Read together, Berman, Schroeder, and Procanik define the
scope of "wrongful birth" and "wrongful life" actions in New
Jersey. As the law now stands, parents of an infant are the only
persons who may recover for general pain and suffering damages,
and either the parents or the infant, not both, may recover for
the costs of medical care.
Against this backdrop, this case presents the issue of
whether the "wrongful birth" cause of action should be extended
to grandparents. The plaintiff and defendants in this case treat
the Court's differing rationales in Berman and Schreoder as being
mutually exclusive of each other. In support of the argument
that the creation of a "wrongful birth" cause of action only
resides with the parents, defendants argue that the court should
only consider plaintiff's claim in terms of the mother's right to
terminate the pregnancy. In making this argument, however,
defendants fail to analyze plaintiff's claim under traditional
concepts of tort duty as the Court did in Schroeder and Procanik.
In contrast, the plaintiff argues that the court should consider
the present claim under concepts of tort duty without recognizing
that the impetus for creating the duty in Berman was grounded in
the woman's recognized constitutional right to terminate her
pregnancy. See Hummell v. Reiss,
129 N.J. 118, 125
(1992)(explaining that the critical aspect of the creation of a
"wrongful birth" cause of action "is premised on the availability
of lawful eugenic abortions").
Despite the parties' arguments, we believe that it would be
unsound to evaluate plaintiff's claim under either rationale in
isolation. Rather, we must evaluate plaintiff's claim under
traditional concepts of tort duty, while at the same time
recognizing that the "wrongful birth" cause of action had its
genesis in Roe v. Wade's acknowledgement of a woman's right to
terminate her pregnancy. Our research has revealed no reported
decision in the country which addresses the issue now before the
court. See Recoverability of Compensatory Damages, supra,
74
A.L.R.4th 798; Tort Liability for Wrongfully Causing One to Be
Born, supra,
83 A.L.R.3d 15.
It is fundamental in the law that in order for a person to have a legally cognizable cause of action, it must first be demonstrated that the plaintiff has a protected right that has been violated. Prosser and Keeton, supra, at 236. As Prosser and Keeton describe it, the determination is "whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant." Ibid. The issue of whether a legal duty should be imposed requires a careful balancing of interests. Ibid.
In Taylor by Taylor v. Cutler, 306 N.J. Super. 37 (App. Div. 1997), certif. granted, ____ N.J. ____ (1998), this court had occasion to evaluate a child's alleged cause of action for "preconception negligence" in the context of a motor vehicle accident. In determining whether or not such a claim was cognizable, we recognized that "under our system it is simply not enough to ground liability in the fact that the defendant did not act with reasonable care and that his carelessness caused injury." Id. at 42 (quoting Weinberg v. Dinger, 106 N.J. 469, 484-85 (1987); Kelly v. Gwinnell, 96 N.J. 538, 544 (1984)). Rather, "[t]o establish liability, the plaintiff must demonstrate that the defendant owes him a duty of care." Ibid. (citing Weinberg, supra; Kelly, supra; Leon Green, Duties, Risks, Causation Doctrines, 41 Tex. L.Rev. 42, 45 (1962)). Whether or not a duty of care exists is a question of law. Id. at 41.
In determining if a duty exists under particular
circumstances, the court's "inquiry involves the identification,
weighing and balancing of `the relationship of the parties, the
nature of the attendant risk, the opportunity and ability to
exercise care, and the public interest in the proposed
solution.'" Id. at 42 (quoting Hopkins v. Fox & Lazo Realtors,
132 N.J. 426, 439 (1993)). This analysis ultimately requires the
court to determine if plaintiff was at risk of injury by
defendant's conduct and whether the imposition of a duty on the
defendant will promote the policy of conforming conduct to
acceptable standards of care in the future. Id. at 44-50. "In
every case the inquiry is `both fact-specific and principled,'
and the result must `lead to solutions that properly and fairly
resolve the specific case and generate intelligible and sensible
rules to govern future conduct.'" Id. at 42 (citing Hopkins,
supra, 132 N.J. at 439)).
When evaluated against these principles of tort duty, it is
clear that the defendants in this case did not owe a duty of care
to the plaintiff. As recognized by our Supreme Court, the duty
owed to the parents is to diagnose and inform them of
abnormalities to the infant so they can use that information to
decide whether the pregnancy should be terminated. See Procanik,
supra, 97 N.J. at 355; Schroeder, supra, 87 N.J. at 62; Berman,
supra, 80 N.J. at 433. A doctor's negligence, therefore,
deprives the parents "of the option to accept or reject a
parental relationship with the child and thus cause[s] them to
experience mental and emotional anguish upon their realization
that they had given birth to a child inflicted" with an
abnormality. Berman, supra, 80 N.J. at 433; accord Procanik,
supra, 97 N.J. at 355; Schroeder, supra, 87 N.J. at 62. Although
the case law recognizes that a duty is owed to the "parents" of
the child, the inclusion of the husband is undoubtedly to promote
and encourage family unity in forming decisions on such matters,
and in further recognition of the reality that where the duty is
breached, both parents share equally in the financial and
emotional burdens of the child's illness. The fundamental
premise of this cause of action, however, is "the availability of
lawful eugenic abortions." Hummel v. Reiss, supra, 129 N.J. at
125.
It serves no purpose of tort law to extend the duty to
grandparents who have no patient/doctor relationship, have no
power to act on the information that is the subject of the duty,
and, unlike the husband, also have no financial obligation to
support the handicapped child. No matter what a grandparent may
want to do with the information a doctor may impart concerning a
potential birth defect, the grandparent is powerless to act upon
it. Only the daughter or daughter-in-law, as the case may be,
has the constitutional right to terminate the pregnancy or bring
it to term. For that reason, the creation of a tort duty to
grandparents will not promote the policy of conforming conduct to
acceptable standards of care.See footnote 4
Further, plaintiff's right to sue cannot be derivative of
the injury to the grandchild. As the Court recognized in
Procanik, the parents' claim for "wrongful birth" is "independent
from that of the child's" in that the parents' right to recovery
is not "`because of injury' to the child, but because of direct
injury to their own independent rights," i.e., the right to
terminate the pregnancy. 97 N.J. at 356. Thus, if the parents'
"wrongful birth" claim is rooted in the parents' independent
rights, and not based upon injury to the child, it logically
follows that a grandparent cannot maintain a cause of action for
"wrongful birth" because of injury to the child. Clearly, in
cases of this nature, the line drawn for bringing a cause of
action for "wrongful birth" is whether the complaining party
demonstrates a "direct injury to their own independent rights."
Ibid.; cf. Frame v. Kothari,
115 N.J. 638, 649 (1989) (explaining
that "[d]rawing lines . . . is the business of the courts, and
lines must be drawn to provide remedies for wrongs without
exposing wrongdoers to unlimited liability"). Plaintiff here has
suffered no direct injury based upon the violation of an
independent right.
Affirmed.
Footnote: 1The disease is characterized as,
a recessive disorder, with the gene carried most
commonly in families of Eastern European Jewish origin.
Children who have the disease exhibit early,
progressive and profound retardation, blindness and
paralysis, with characteristic cherry red spots on the
retina. Death usually occurs by age three or four.
Diagnosis can be made in utero on the basis of
examination of material obtained at amniocentesis.
[Lawyer's Medical Cyclopedia § 4.10 (3d ed. 1990).]
Footnote: 2The record indicates that Mayo has been released from this
action by way of summary judgment.
Footnote: 3In justifying the Court's departure from Gleitman and
Berman, Justice Pollock wrote:
Law is more than an exercise in logic, and logical
analysis, although essential to a system of ordered
justice, should not become an instrument of injustice.
Whatever logic inheres in permitting parents to recover
for the cost of extraordinary medical care incurred by
a birth-defective child, but in denying the child's own
right in recovering those expenses, must yield to the
inherent injustice of that result. The right to
recover the often crushing burden of extraordinary
expenses visited by an act of medical malpractice
should not depend on the "wholly fortuitous
circumstances of whether the parents are available to
sue."
[Id. at 351-52 (citation omitted).] Footnote: 4As a side note, we reject plaintiff's argument that the expansion of grandparents' rights in terms of visitation and custody of grandchildren supports an expansion of the "wrongful birth" cause of action. Under the common law, grandparents had no right to custody or visitation as against a parent. See Mimkon v. Ford, 66 N.J. 426, 430-32 (1975). It was not until the Legislature passed N.J.S.A. 9:2-7.1 that such rights were recognized. Thus, to the extent that grandparents' rights have evolved, those rights have been created by the Legislature, not our courts.