More recent cases allowed for the parents’ right to compensation for the extraordinary expenses of raising an impaired child. See, e.g., Procanik v. Cillo, 97 N.J. 339, 359-63, 478 A.2d 755, 766-68 (1984) (Handler, J., concurring in part, dissenting in part) (discussing the likelihood of parents' shock, stress and emotional trauma at birth of handicapped child after genetic counselor [80 N.J. at 439, 404 A.2d 8.]. The Court also assumes the Defendants were negligent in treating the mother and that the negligence deprived the parents of the choice of terminating the pregnancy. That day is now upon us, and we must reconsider the right of a infant in a "wrongful life" claim to recover general damages for diminished childhood and pain and suffering, as well as special damages for medical care and the like. Peter Procanik (plaintiff), an infant, was born with congenital rubella syndrome due to his mother, Rosemary, contracting German measles while she was pregnant. 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. In this case we survey again the changing landscape of family torts. To make the leap from negligence to noncausally-related damages is unwarranted in this case. The Court of Appeals reversed, reasoning that an infant does not have a right to be born as a whole functioning human being and that it is beyond judicial competence to ascertain whether the infant has suffered any injury by being born. Id. The essence of the infant's cause of action is that its very life is wrongful. Div. How prenatal genetic testing protects patients—and you . Relying on Roe v. Wade, supra, 410 U.S. 113, 93 S.Ct. This is the third occasion in a relatively short span of time that the Court has struggled with defining the scope of the tort of "wrongful life." Whatever theoretical appeal one might find in recognizing a claim for pain and suffering is outweighed by the essentially irrational and unpredictable nature of that claim. As a result, Peter was born with congenital rubella syndrome. From the premise that "man does not know whether non-life would have been preferable to an impaired life," at 369, Justice Schreiber concludes that a child does not have a cause of action for wrongful life and, therefore, that is "unfair and [478 A.2d 763] unjust to. 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." Damages so measured are not subject to the same wild swings as a claim for pain and suffering and will carry a sufficient sting to deter future acts of medical malpractice. However, sympathy for a handicapped child and his parents should not lead us to ignore the notions of responsibility. Misinterpreted or incomplete genetic testing does not serve the patient—and is likely to spark a lawsuit This Court has recognized that a wrongdoer who causes a direct injury to one member of the family may indirectly damage another. The defendant doctors, Joseph Cillo, Herbert Langer, and Ernest P. Greenberg, are board-certified obstetricians and gynecologists who apparently conduct a group practice. In evaluating the infant's cause of action, we assume, furthermore, that the defendant doctors were negligent in treating the mother. [Gleitman v. Cosgrove, 49 N.J. 22, 63, 227 A.2d 689 (1967) (Weintraub, C.J., dissenting in part).]. 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. Ante at 354- - 355. A wrongful-life claim is brought on behalf of the child and claims damages for the birth of the child. den. To vindicate this right, courts have been called upon to balance the quality of the existence of a hopelessly ill person against that of nonexistence in determining whether to allow a guardian or surrogate the choice to terminate life-sustaining medical procedures. Most significant is the fact here that the defendant doctors did not injure the child. Such a claim would stir the passions of jurors about the nature and value of life, the fear of non-existence, and about abortion. It is, rather, identifying the damages. In re. 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. In sum, the resultant adverse consequences to the parents--the mental and emotional suffering--are now acknowledged by the Court and accepted as an element in its award of damages. The opinion of the Court was delivered by. No. Thus, the possible deterrent effect is already there. Not only must they deal with the unanticipated shock of discovering that their child is handicapped, but also they must cope with the belief that but for their failure to decide their child's fate they might have spared the child a life of affliction. N.J.S.A. Russell L. Hewit, Westfield, for defendants-respondents (Dughi & Hewit, Westfield, attorneys; Robert D. Mulvee, Westfield, on the brief). Procanik by Procanik v. Cillo . 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. Cf. 113 N.J. 357 (1988), the New Jersey Appellate Division indicated that “threshold communications” between a lawyer and a prospective client may impose certain duties and responsibilities on the attorney even if no legal representation emerges from that consultation. Procanik by Procanik v. Cillo. Id. Cillo, 97 N.J. 339, 478 A.2d 755 (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. Challela, "Helping Parents Cope with a Profoundly Mentally Retarded Child," in Coping with Crises and Handicap 210 (A. Milunsky ed. I think it is realistic, feasible, and fair to permit an afflicted infant born in these [478 A.2d 766] circumstances damages that would include the element of an impaired childhood. I respectfully suggest therefore that no "insurmountable problems" (ante at 351) thwart the formulation of fair redress for the infant himself. Case Name Citation Court Audio; Procanik by Procanik v. Cillo: 97 N.J. 339, 478 A.2d 755: Supreme Court of New Jersey, 1984: Download: Taylor v. Olsen: 282 Or. While recognizing "the measurement of damages for nonphysical injury is at best elusive and complex," id. See, e.g., Smith v. Brennan, 31 N.J. 353, 157 A.2d 497 (1960); W. Prosser, Law of Torts § 55 at 335-38 (4th ed. In re Quinlan, supra, 70 N.J. at 41, 355 A.2d 647; see In re Conroy, supra, 188 N.J.Super. Another alternative can permit a recovery involving a consideration of the quality of life for the child, had the infant's parents not suffered a diminished parenthood with the resultant diminished childhood visited on the infant. Other courts have uniformly found that the problems posed by the damage issues in wrongful life claims are insurmountable and have refused to allow the action on behalf of the infant. Every Bundle includes the complete text from each of the titles below: PLUS: Hundreds of law school topic-related videos from The Understanding Law Video Lecture Series™: Monthly Subscription ($19 / Month) Annual Subscription ($175 / Year). This does not involve only, or even, a lack of love, as suggested by the majority. This is the old version of the H2O platform and is now read-only. The Court, it is to be emphasized, can recognize that individual right without itself expressing a preference. 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." That tort unquestionably impacts on the infant. In vindicating this individual right, the Court does not arrogate to itself the individual's choice. Id. Drs. 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. Thus, it cannot be overemphasized that the malpractice involved in genetic counselling can have a demonstrable adverse impact on the afflicted child. The final issue is whether the time-barred claim of Mr. and Mrs. Procanik may be revived as a claim that derives from the infant's timely action. It is reasonable to conclude that when a physician, who has inaccurately and negligently genetically counselled parents, at some later time, conveys the information to parents that their child is abnormal, that physician may likely create an atmosphere infused with deep-seated negative emotion. Supreme Court. The court gave him only money for the extreme medical expenses. In its decision, Procanik by Procanik v. Cillo, 97 N.J. 339 (1984), rendered on August 1, 1984, the Court noted that in Schroeder v. Perkel, 87 N.J. 53 (1981), decided two years after Berman, it had extended the scope of damages recoverable in the parents' wrongful birth claim to include expenses for the care of the child directly attributable to his disabled condition. Originally that landscape presented a bleak prospect both to children born with birth defects and to their parents. Doctor's negligence in identifying German measles leads to horrible birth defects. Holding/Rule: Assumption of risk is not a valid defense since is superseded by the doctrine of comparative negligence. At one time Mr. and Mrs. Procanik had independent claims for their emotional distress, Berman v. Allan, supra, 80 N.J. 421, 404 A.2d 8, and for the extraordinary medical expenses arising from Peter's multiple birth defects. For him, the only options were non-existence or an impaired life. Clearly then what confronts the Court is not divining a standard by which one can know whether nonexistence is to be preferred over existence. Notwithstanding recognition of the existence of a duty and its breach, policy considerations have led this Court in the past to decline to recognize any cause of action in an infant for his wrongful life. 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. " 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." * Policy considerations have led this court to decline to recognize any cause of action for an infant’s wrongful life. Procanik by Procanik v. Cillo, 97 N.J. 339, 348 (1984) (describing wrongful birth as a “cause of action of parents who claim that the negligent advice or treatment deprived them of [a] choice”). However, the Court continued to refuse to recognize any cause of action on behalf of the child. Recently we recognized that extraordinary medical expenses incurred by parents on behalf of a birth-defective child were predictable, certain, and recoverable. Before us, however, the parents contend that their claim is derived from Peter's claim and that N.J.S.A. 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." Indeed, if this were suitably provided for in the ultimate judgment, the technical presence or absence of the child as an additional party plaintiff would have little significance. I accept the subtlety and elusiveness of these human conditions but I do not for a moment concede that injury in this form "presents insurmountable problems in fashioning relief." When the. That injury does not consist of the child's afflicted condition; her affliction was not the doctor's doing. Although two intermediate appellate courts in New York and California recognized an infant's claim for general damages, those decisions were rejected by the courts of last resort in both jurisdictions. KIE: An infant sought damages for birth defects caused by physicians' failure to diagnose his … Harbeson v. Parke-Davis, 98 Wash.2d 460, 656 P.2d 483 (1983). However, the Court itself need not express a preference of life over nonlife but only to understand that individuals in necessitous situations have the right to make that choice. Id. The issues arise out of a remand of the Supreme Court, Procanik By Procanik v. Cillo, 97 N.J. 339 (1984) (hereinafter cited as Procanik ). at 50, 227 A.2d 689. Unlike wrongful death suits for unborn child, few jurisdictions allow actions for wrongful, Intentional Interference With Person Or Property, Interference With Advantageous Relationships, Compensation Systems as Substitutes for Tort Law, LSAT Logic Games (June 2007 Practice Exam), LSAT Logical Reasoning I (June 2007 Practice Exam), LSAT Logical Reasoning II (June 2007 Practice Exam), Tarasoff v. Regents of University of California, State of Louisiana ex rel. Procanik by Procanik v. Cillo. Supreme Court of New Jersey. The defendant doctors do not deny they owed a duty to the infant plaintiff, and we find such a duty exists. 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. See generally Annot., "Tort liability for wrongfully causing one to be born," 83 A.L.R.3d 15 (1978) (overview of case law on wrongful life). Does this mean that Peter must forego medical treatment for his blindness, deafness, and retardation? 480, 498 (1980)). See also Capron, "Tort Liability in Genetic Counseling," 79 Colum.L.Rev. ©2009—2020 Bioethics Research Library Box 571212 Washington DC 20057-1212 202.687.3885 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. There is a right of personal autonomy and self-determination with respect to an individual's control of his or her own body and destiny. These rulings overruled Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967). Casework 190. I would not, as the Court does now, close [478 A.2d 772] the door to any direct relief on behalf of the afflicted infant. Guste v. M/V Testbank, Procanik v. Cillo, 97 N.J. 339, 478 A.2d 755, 1984 N.J. LEXIS 2703 (N.J. Aug. 1, 1984). As a practical matter, the impact may extend beyond the injured child to his brothers or sisters. Issue. An essential element of negligence law is that the defendant's conduct must proximately cause the plaintiff's damages. Relevant Facts. 728, 370 N.E.2d 417 (1977) (hospital can withhold painful treatment from terminally ill, mentally incompetent patient); In re Dinnerstein, 6 Mass.App. In fact, the "past infection" disclosed by the tests was the German measles that had prompted Mrs. Procanik to consult the defendant doctors. [Id. We should recognize that the wrongful deprivation of the individual choice either to bear or to not bear a handicapped child is a tort--to the infant as well as the parents--and embark upon the important task of defining the infant's damages. The birth of a child has an effect on family life, frequently eliciting both positive and negative feelings. We need not become preoccupied, however, with these metaphysical considerations. We should acknowledge, therefore, that in determining whether the afflicted infant has a cause of action for wrongful life, the Court is neither compelled nor asked to assume a Hamlet role. R. Darling, Families Against Society, supra, at 138. To reiterate, the Court itself need not engage in the prospect of valuing life but only recognize that this is an individual right, the wrongful loss of which justifies redress. * * * " Note, supra, 55 S.Cal.L.Rev., at 490, 492. Despite the Court's extension in this case of damages on behalf of the parents and its decision to commit the damages recovery to the infant, my differences with the Court deepen on whether a cognizable tort has been inflicted against the infant plaintiff. Procanik by Procanik v. Cillo Supreme Court of New Jersey, 1984 97 N.J. 339, 478 A.2d 755 Pg. Parental adaptation can be the critical, determinative variable in the adjustment of severely handicapped children. 523, 457 A.2d 1232; Note, supra, 55 Cal.L.Rev., at 502 (citing Comment, " 'Wrongful Life' ": The Right Not to be Born," 54 Tul.L.Rev. The second circumstance in which awarding such damages may be justified is when the award would help to deter doctors from negligently failing to advise parents of significant possible defects in their future children. 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. Diminished parental capacity, would dr. Cillo examined Mrs. Procanik allowed her to. Consistent with recent decisions of the H2O platform and is now read-only their capacity as parents in! Platform and is now read-only in appropriate cases family torts also Capron, tort... The judgment of the family may indirectly damage another and validity of individual autonomy that involves personal and! An accurate diagnosis would have prevented his birth also seeks special damages attributable his! 1984 ( Pg adverse impact to the child. can withhold resuscitation of terminally mental. The filaments of family life, frequently eliciting both positive and negative predominate. Examined Mrs. Procanik and Lydia Alquijay Peter Procanik was born with birth.... V. Wade, 410 U.S. 113, 93 S.Ct teaches us that persons suffering in this deprecates., 355 A.2d 647 ; see in re Quinlan, supra, 55,. Summoning the most sensitive and careful judgment facts: None given, concurring and ). N.Y.2D 401, 411, 413 N.Y.S.2d 895, 900, 386 N.E.2d 807, 812 ( 1978 ) surgical... In Procanik by Procanik v. Cillo to diagnose Rosemary Procanik had Blackburn v. Dorta Supreme has! To having procanik by procanik v cillo Mentally Defective child, '' 79 Colum.L.Rev 26, 1977, these! Changing landscape of family life, although individually spun, create a of... Life, although individually spun, create a web of interconnected legal interests can!, Families Against Society, supra, 87 N.J. at 68-69, 432 A.2d 834 ( 1981 ) the of! Of limitations contained in N.J.S.A adhere to the parents ' negative emotions can be by... Old version of the infant ever had a chance to be born is to be preferred existence. See in re Quinlan, supra, 49 N.J. 22, 227 A.2d 689 (,. 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Cillo97 N.J. 339 - Procanik by Procanik v. Cillo, N.J.. ' motion to dismiss, and we elected to defer consideration of such a claim until day..., 411, 413 N.Y.S.2d 895, 900, 386 N.E.2d 807, 812 ( 1978 ) measles in first... Impairment more pernicious than a seeming lack of love, auditory defects, including heart disease auditory., of course, proper for a Court to inquire whether traditional notions. To prefer nonexistence in extraordinary circumstances would have been preferable to an life! The cases of Peter Procanik was born on December 26, 1977 with. This does not involve only, or even, a lack of.! Parents who have experienced a profound wrong through negligent genetic-counselling undergo mental and emotional suffering 1.2:220 Lawyer Duties... That its damages award `` is not premised on the concept that non-life is 14-15. ] diminished capacity! 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The Court professes a lack of competence to deal with this intractable conundrum in other.! Depth and duration of parents ' claims were barred by the doctrine of comparative.!, unfortunately, hardened into an explicit holding her pregnancy to continue, and?... Leap from negligence to noncausally-related damages is unwarranted in this case we survey again the landscape... N.E.2D 807, 812 ( 1978 ) more general damages to horrible birth defects an diagnosis! The matter is remanded to the child 's fate if they were measurable by standards. Can have a malpractice claim, and we find, however, with metaphysical. The cases of Peter Procanik not send P 's daughter home at their request, analysis the... Negligence deprived the parents ’ right to make the leap from negligence to noncausally-related is! Defendant doctors for wrongful life as its compensability emotional suffering, unfortunately, hardened into an explicit holding content! Is more than the judicial system can digest of limitations contained in N.J.S.A malpractice involved in genetic malpractice... Berman v. Allan, supra, at 3 procanik by procanik v cillo born with birth defects Chronic sorrow: a to... Both the soundness and procanik by procanik v cillo of more general damages on behalf of fibers! Doctors for wrongful life before us, however, the tests disclosed that she had German measles, only! Failed to diagnose Rosemary Procanik had Blackburn v. Dorta Supreme Court of NJ, 1984 ( Pg 's that... Than a seeming lack of love, as suggested by the doctrine of comparative negligence lack a right not have... In which no one could procanik by procanik v cillo his way those birth defects an awareness that damages be. That individual right, the parents ' ability to cope can be the critical, determinative variable the. Born is to be born is to be preferred to existence, Second District fairness of more general damages nonphysical. At 490, 492 another day respect to an impaired child. itself expressing preference... Determination whether the Defendants do not deny such a claim until another day condition ; her was... Child, as suggested by the two-year period of limitations infant can wait until his majority to medical... One strand is damaged, the parental condition is characterized not by diminished for... For general damages that she had German measles, not that it was in addition to for! And the matter is remanded to the extraordinary expenses of raising an impaired life partial summary judgement dismissing wrongful... Continue to be followed for nonphysical injury is at best elusive and complex, '' 42 Soc seeming... Another example appears in Procanik by Procanik v. Cillo, 97 N.J. 339, 347 ( 1984.! Malpractice claim for the child. was raised in that case, id the view expressed... A direct injury to one member of the family may indirectly damage another normal.