Brief Fact Summary. The Plaintiff, Peter Procanik (Plaintiff), was born with multiple birth defects, the result of his mother’s German Measles that the Defendants, Dr. Cillo and other doctors (Defendants), negligently failed to diagnose. Plaintiff sued Defendants claiming general damages for emotional distress and for an impaired childhood because the Defendants negligently deprived his parents of the choice of terminating the pregnancy. Plaintiff also claims special damages for the extraordinary medical expenses he will incur.
Synopsis of Rule of Law. An infant plaintiff may recover special damages for the extraordinary medical expenses he will incur, but may not recover general damages for emotional distress or for an impaired childhood.
We seek only to respond to the call of the living for help in bearing the burden of their affliction.View Full Point of Law
Issue. May an infant recover general damages for emotional distress or for an impaired childhood caused by a doctor’s negligent deprivation of his parent’s choice of terminating the pregnancy?
* May an infant plaintiff recover as special damages for the extraordinary medical expenses attributable to his affliction?
Held. No. Yes. Judgment of the Appellate Division is affirmed in part, reversed in part, and the matter is remanded.
* Originally, a doctor’s negligence in diagnosing a condition that might cause her to give birth to an impaired child was not actionable by either the parent or the child. This was due to the court’s inability to reach damages when attempting to value life with impairments against the nonexistence of life itself. Another factor in early decisions was a reluctance to recognize the availability of abortions.
* Later cases addressed these issues. In Berman [Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979)] the court refused to allow a parent’s claim for medical expenses to be incurred during the childrearing under the theory that such an allowance would permit the parents to reap all the benefits of childhood while the defendant paid all of the expenses. More recent cases allowed for the parents’ right to compensation for the extraordinary expenses of raising an impaired child.
* In the present case, analysis of the action begins with whether the Defendants owed a duty to the Plaintiff. The Defendants do not deny such a duty and the Court finds that one exists. 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.
* Policy considerations have led this court to decline to recognize any cause of action for an infant’s wrongful life. The problem is that the Plaintiff claims not that he should not have been born with defects, but rather that he should not have been born at all. This Court finds that there is no rational way to compare a lack of existence with the pain and suffering of Plaintiff’s impaired existence in order to all recovery for his emotional distress or diminished childhood. However, this Court does find that recovery of the cost of extraordinary medical expenses is recoverable by either the parents or the infant, but not both. The infant can wait until his majority to recover medical expenses.
Discussion. Unlike wrongful death suits for unborn child, few jurisdictions allow actions for wrongful