# Procanik by Procanik v. Cillo > Supreme Court of New Jersey · August 1, 1984 · 97 N.J. 339 URL: https://www.frixlaw.com/law-library/cases/9752794 ## Case - **Full name:** 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 - **Court:** Supreme Court of New Jersey - **Decided:** August 1, 1984 - **Citations:** 97 N.J. 339; 478 A.2d 755; 1984 N.J. LEXIS 2703 - **Precedential status:** Published - **Opinion:** Concurring in part by Handler - **Judges:** Pollock, Handler, Schreiber - **Cited by:** 97 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9752794 ## How later opinions describe it (automated extraction) - finding that parents’ claims for emotional distress and expert medical expenses incurred due to injuries sustained by minor child were based on "direct injury to their own independent rights" and thus were not derivative of the minor child’s and were time-barred - holding that family could assert claim for negligent infliction of emotional distress against doctor who negligently interpreted a German measles test, thereby depriving parents of opportunity to consider terminating pregnancy - finding that although infant plaintiff's condition resulted from pre-existing congenital infection, doctors had duty to prevent that harm by providing parents with the choice to terminate pregnancy - finding that although infant plaintiffs condition resulted from pre-existing congenital infection, doctors had duty to prevent that harm by providing parents with the choice to terminate pregnancy - stating that "[w]hatever 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 to recover those expenses, must yield to the inherent injustice of that result" ## Opinion text HANDLER, J., concurring in part and dissenting in part. 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.” In Berman v. Allen, 80 N.J. 421 (1979), we recognized such a cause of action on behalf of the infant’s parents, and that the mental and emotional anguish of the parents attributable to their deprivation of a meaningful choice concerning the birth of their child and the infant’s tragic congenital condition is an appropriate measure of damages for the parents. These rulings overruled Gleitman v. Cosgrove, 49 N.J. 22 (1967). We also held in Berman that the infant, who *357 was born afflicted with Down’s Syndrome, did not suffer any damages cognizable at law. I dissented from the rulings of the Court that limited the parents’ measure of recoverable damages and that, further, denied a cause of action for the child. 80 N.J. at 434 . In Schroeder v. Perkel, 87 N.J. 53 (1981), the Court extended its Berman ruling by allowing the parents to recover extraordinary medical expenses of raising the afflicted child, i.e., those expenses needed for the child’s survival. This was in addition to damages for mental and emotional suffering. However, the Court continued to refuse to recognize any cause of action on behalf of the child. Id. at 65. Again, I dissented. Id. at 72. In Berman and Schroeder , the infant plaintiff had not presented an express claim based on an independent cause of action attributable to defendant doctors’ malpractice. Nevertheless, I believed that such a claim was inevitably implicated in the basic cause of action brought by the parents and therefore merited our attention. In the present case, however, such a claim is expressly made; its determination is inescapable. The Court now expressly rejects any claim that a cognizable tort has been committed on the infant. Its foreshadowed hostility to the infant’s cause of action has, unfortunately, hardened into an explicit holding. 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. I am firmly convinced that we should recognize a cause of action on behalf of the afflicted child with a full and fair measure of damages that adequately encompasses the enormity of the wrong. I adhere to the view previously expressed in both Berman and Schroeder . There, I urged the Court to consider the feasibility of damages to the afflicted child in the form of an “impaired childhood.” Recognition of this condition, a corollary of impaired parental capacity, would *358 serve to assure a direct recovery for the unfortunate infant, wholly apart from any damages flowing to the parents, which may or may not be preserved for the benefit of the child. The Court posits as the only basis for permitting a recovery on behalf of the infant the preference of nonlife over life. This is a self-created hypothesis. The Court professes a lack of competence to deal with this dilemma, denying the infant’s cause of action. I do not think it right, however, to deny damages to the afflicted child because we are confounded by the complexities of comparing existence with nonexistence. We have dealt with this intractable conundrum in other settings. In human affairs persons sometimes are driven to this ultimate, awesome choice. However, the Court itself need not express a preference of life over nonlife but only understand that individuals in necessitous situations have the right to make that choice. 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. 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. I I think it is realistic, feasible, and fair to permit an afflicted infant born in these circumstances damages that would include the element of an impaired childhood. I expressed this in Berman : An adequate comprehension of the infant's claims under these circumstances starts with the realization that the infant has come into this world and is here, encumbered by an injury attributable to the malpractice of the doctors. That injury does not consist of the child’s afflicted condition; her affliction was not the doctor’s doing. Rather, the injury consists of a diminished childhood in being born of parents kept ignorant of her defective state while unborn and who, on that account, were less fit to accept and assume their parental responsibilities. The frightful weight of the child’s natural handicap has been *359 made more burdensome by defendants’ negligence because her parents’ capacity has been impaired; they are less able to cope with the extra-heavy parental obligations uniquely involved in providing a child so afflicted with the unfaltering love, constant devotion and extraordinary care such a child specially requires. [ 80 N.J. at 442 .] The majority in this ease deprecates the nature of this injury to the infant child, as well as its compensability. Ante at 354-355. Its position reflects a reluctance, perhaps understandable, to deal with the subtle but terrible realities of the psychological, mental, and emotional damage that ensue from the birth of a congenitally defective child in these circumstances. 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.” Id. at 353. The essence of the injury of a diminished childhood is that it can be a mirror reflection of the diminished ability of the parents to care for their child. This does not involve only, or even, a lack of love, as suggested by the majority. In truth, parental love in this tragic scene may be blocked by overwhelming dark emotions, as the sun’s light can be eclipsed by the moon. The psychological trauma is much deeper and the impairment more pernicious than a seeming lack of love. As the authorities have come to recognize, the parental condition is characterized not by diminished love for the child. Rather, such parents “are consumed with an awful sorrow. Not the surgical sorrow of death, but an hourly, daily, yearly sorrow— an agonizing, shattering, tearing sorrow.” G. Stigen, Heartaches and Handicaps 6 (1976). The parents of handicapped children can have a distinctive reaction, which has been described as a lifelong “ ‘chronic sorrow,’ a pervading feeling of psychological grief.” Challela, “Helping Parents Cope with a Profoundly Mentally Retarded Child,” in Coping with Crises and Handicap 210 (A. Milunsky ed. 1981) (citing Olshansky, “Chronic Sorrow: A Response to Having a Mentally Defective Child,” 42 Soc. Casework 190 *360 (1962)). Such parents may harbor negative feelings of disbelief, fear, anger, inferiority or rejection that'are difficult to express. They may fear being unable to handle their children’s handicaps and that the child may be a burden, especially to a normal sibling. Fairfield, “Parents Coping with Genetically Handicapped Children: Use of Early Recollections,” 49 Exceptional Children 411, 413, 415 (Feb.1983). Some parents may be weighted with guilt at their desire to escape the hardship of coping with the child; others experience a sense of genetic failure as a family unit. Id. at 413, 414. Parents can suffer diminished parental capacity as a result of these conditions. Most significantly their impairment as parents can be related to their being excluded from perhaps the most important decision in their lives — whether to give birth to a congenitally defective child. They may construe this exclusion as a personal failure that is the “cause” of their child’s suffering and a major factor in contributing to his or her burdens. Lavelle & Keogh, “Expectations and Attributions of Parents of Handicapped Children,” New Directions for Exceptional Children: Parents and Families of Handicapped Children 4 (J. Gallagher ed. 1980) [hereinafter cited as Lavelle & Keogh, New Directions]. Thus', parents victimized by negligent genetic counselling bear a multiple burden. 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. Parental reactions in the wake of the birth of a congenitally defective child in these circumstances can be the most critical factor in terms of capacity to function as parents. Research indicates that individual differences in parental perceptions of their infants, as much as individual differences in the infants themselves, can affect the parental attachment and family adaptation process. Lavelle & Keogh, New Directions, supra, at 3. Parental adaptation can be the critical, determinative variable in the adjustment of severely handicapped children *361 regardless of the level of physical impairment of the child. R. Darling, Families Against Society: A Study of Reactions to Children with Birth Defects 41 (1979). The birth of a child has an effect on family life, frequently eliciting both positive and negative feelings. If the child is born with a defect, negative feelings predominate and family disintegration may be involved. * * * Emphasis is placed upon reactions to the birth of a child, for it is assumed that many of these initial reactions continue for long periods of time and are transmitted to the child. [Clifford & Brantley, “When I Was Born: Perceived Parental Reactions of Adolescents,” 41 J. Personality Assessment 604 (Dec.1977) (citations omitted).] Thus, it cannot be overemphasized that the malpractice involved in genetic counselling can have a demonstrable adverse impact on the afflicted child. I stated in Berman that the breach of the defendant’s duty can have extraordinary consequences for the child as well as the parents and the wrong done “in truth and reality * * * vitally affects * * * [the] entire immediate family,” 80 N.J. at 444 , quoting Gleitman v. Cosgrove, supra, 49 N.J. at 50 (Jacobs, J., dissenting). Genetic counselling malpractice should not be regarded as a remote or tenuous factor in the blighted life of the afflicted child. The depth and duration of parents’ negative emotions can be affected by such counselling. Counselling consists not only of the content of the advice given but also the manner in which it is related. The timing and the attitude of those who inform parents that their children are handicapped or congenitally defective can be crucial in the consequent ability of such patients to adjust and cope as parents. Although the situation during which awareness first arises and notice or information as to the child’s condition as initially imparted is always climactic for parents, a delayed, misleading, or mishandled diagnosis exacerbates parental trauma. R. Darling, Families Against Society, supra, at 138. The emotional trauma associated with a delayed, confusing or mishandled communication of diagnosis is particularly relevant in this case, in that the parents’ fears that their unborn child *362 would suffer rubella syndrome had initially been assuaged by defendant’s negligent genetic counselling. The parents were led to believe prior to birth that their child was healthy and normal, only to discover at birth that the very fears they had laid to rest as a result of defendants’ alleged malpractice had now materialized. Thus, the “delayed” diagnosis they received was likely to result in greater shock and disbelief. This perception of “novelty shock,” to which I referred in Berman , underlies the injury of diminished parenthood. This, I believe, is the crux of the wrong done in this case. Through the failure of the doctors to advise an expectant mother, and father, of the likelihood or certainty of the birth of a mongoloid child, the parents were given no opportunity to cushion the blow, mute the hurt, or prepare themselves as parents for the birth of their seriously impaired child. Their injury is real and palpable. [ 80 N.J. at 439 .] As mentioned, not only the timing of diagnosis but also the manner of the counselling can influence parental adjustment. The reaction of mothers to first information concerning their child’s condition appears to be closely related to the perceived interest and concern of the professionals who contact the mother. Por example, Roskies (1972) noted that, while physicians were usually the first professionals to notify a mother that her child was handicapped, an atmosphere of anxiety, uncertainty, and confusion tended to permeate the announcement. There is some evidence that parents’ views of the professional’s role relative to their handicapped child are related to parents’ attributions about the professional’s motives. Roskies (1972) found that many mothers felt that the physician’s main concern was to protect himself or to mitigate the mothers’ feelings of guilt. [Lavelle & Keogh, New Directions, supra, at 14-15.] 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. As a result, the parents’ ability to cope can be diminished. Mothers who felt that the physician had been abrupt or had failed to give adequate information were liable to have bizarre ideas of their infants (D’Arcy, 1968). In contrast, Emde and Brown (1976) found that an empathic response on the part of professionals lessened the parents’ grief and facilitated their *363 adaptation to the reality of the condition. * x * The mother’s perception of society’s view of her child can, in turn, influence her feelings about her capacity to love and to care for the child. [Id. at 15-16.] This Court quite clearly accepts the proposition that parents who have experienced a profound wrong through negligent genetic-counselling undergo mental and emotional suffering. Both common experience and the insight of experts strongly show that that kind of anguish can involve “diminished parental capacity,” Berman, supra, 80 N.J. at 440 , a dysfunctional state that is the predicate of “impaired childhood.” The debilitating and anguished condition of impaired parenthood can arise not only because of the parents’ loss of personal autonomy and self-determination in being excluded from any meaningful choice in deciding the fate of their afflicted child. It may also be caused or worsened by the delayed knowledge of their child’s condition and the manner in which this knowledge was conveyed to them. 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. Experience teaches us that persons suffering in this way may be significantly impaired in their capacity as parents. Consequently, the adverse impact to the child in the form of a diminished childhood is equally real and undeniable. I am, thus, disheartened by this Court’s refusal to permit plaintiffs in an appropriate case — and this case is assuredly that — to develop through competent evidence the diminished childhood of the infant plaintiff as an element of compensable damages. II I would also invite the Court to consider both the soundness and fairness of more general damages on behalf of the afflicted child. The majority awards extraordinary medical expenses as an element of damages of the parents, which it then transfers to the infant child. It makes a point of stressing that its damages award “is not premised on the concept that non-life is *364 preferable to an impaired life * * Ante at 353. The Court in effect rejects any claim of the infant for pain and suffering or for a diminished childhood because these theories of injury would, in the Court’s view, require acceptance of the proposition that nonexistence must be preferred over existence. Id. at 353-354. The Court appears to assume that to justify any award of damages to the infant, the infant’s injury must be defined as having been born with birth defects, with any resultant damages necessitating a preference of nonlife to life itself. Ante at 354. I do not agree with this premise. The infant plaintiffs injury need not be defined as being born defective or require that nonexistence be preferred to existence. Rather, his injury consists of the consequences of the deprivation of his parents’ right to determine on his behalf whether he should have been born. What then is at issue as the basis for a cause of action is not the postulate that nonlife is preferable to life. Rather, the issue is whether parents — for themselves and their child as a family — were deprived of the opportunity to make the fateful decision and enact their preference of one over the other. This Court has recognized that an individual may in certain circumstances have the right to make a decision that favors nonexistence over existence. The Court, it is to be emphasized, can recognize that individual right without itself expressing a preference. 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. This can implicate the fundamental choice of life itself. In some situations, the Court has accepted the substituted, judgment of a surrogate, guardian or family as the only means of preserving the right of personal choice or self-determination on the part of an individual otherwise unable to exercise that right. Some people may be helpless or incompetent and devoid of the means to express their will on matters concerning their own care, including survival. This does not mean, however, that they lack a right of individual autonomy that involves personal choice and self-determination. When the *365 right exists but the ability or will to exercise it does not, courts will struggle to find a way to effectuate that right. In re Quinlan, 70 N.J. 10 , 41-42 cert. denied sub. nom. Garger v. New Jersey, 429 US. 922, 97 S.Ct. 319 , 50 L.Ed.2d 289 (1976); In re Conroy, 188 N.J.Super. 523 (Ch.Div.), rev’d on other grounds, 190 N.J.Super. 453 (App.Div.1983), certif. granted, 95 N.J. 195 (1984); see also In re Grady, 85 N.J. 235 (1981). By analogy, in the context of this case the “child’s complaint is predicated on the failure of the doctor to provide his parents with the ability to make informed choices on his behalf. Substituting the parents’ judgment for that of the child provides a practicable way to recognize the injury to the child.” Note, “A Preference for Nonexistence: Wrongful Life and a Proposed Tort of Genetic Malpractice,” 55 S.Cal.L.Rev. 477, 492 (1982). A court or jury, in cases such as these, is not called on to make its own judgment or to be guided by its own subjective moral values as to whether the child should have been born. The metaphysical dilemma of comparing existence with nonexistence is not presented and does not have to be resolved in determining whether a familial tort has been committed. That tort is the preemption of expectant parents from any choice as to their child’s fate. “The right of parents to decide whether they should bear a particular child is at stake, not judicial recognition that a certain life is worth living. * * * ” Note, supra, 55 S.Cal.L.Rev., at 490, 492. See also Capron, “Tort Liability in Genetic Counseling,” 79 Colum.L.Rev. 618, 660 (1979) (“[Wjhen a physician or other genetic counselor wrongfully fails to disclose information about genetic risks material to a couple’s decision to bear a child, he or she has breached a duty owed both to the couple and to the prospective child.”). One of the consequences of that tort is that the child may be forced to live out the counter-decision of his parents, with all of its severe burdens. Clearly then what confronts the Court is not divining a standard by which one can know whether nonexistence is to be preferred over existence. It is, rather, identifying the damages *366 that flow from the denial of parental choice. The Court in Schroeder v. Perkel, supra, 87 N.J. at 63 -64 accepted the premise that the parents’ deprivation of choice constitutes a familial tort and can affect their child. The foreseeability of injury to members of a family other than one immediately injured by the wrongdoing of another must be viewed in light of the legal relationships among family members. A family is woven of the fibers of life; if one strand is damaged, the whole structure may suffer. The filaments of family life, although individually spun, create a web of interconnected legal interests. This Court has recognized that a wrongdoer who causes a direct injury to one member of the family may indirectly damage another. See Berman, supra, 80 N.J. at 445-46 (Handler, J., concurring in part and dissenting in part). The majority recognizes, in this case, that the suffering of pain and sorrow in these circumstances is not a singular or individualized injury; it permeates the whole family. Presumably, the shared impact of the family tort is the basis for the Court’s extending the recovery of the cost of extraordinary medical expenses to either the parents or the infant, since all parties, possibly including siblings, suffer the resulting financial strain. Ante at 351. I respectfully suggest therefore that no “insurmountable problems,” ante at 353, thwart the formulation of fair redress for the infant himself. 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. Ill The proposition that nonexistence can be chosen over existence, though philosophically remarkable, is not judicially indefensible or unprecedented. An individual — as distinct from the court — has the right to determine that “a defective life is worth less than no life at all,” ante at 353. 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. In re *367 Quinlan, supra, 70 N.J. 10 . The burdens of continuing life can in some circumstances outweigh any supposed or presumed benefits that life may continue to offer. In re Conroy, supra, 188 N.J.Super. at 527-28 . Contrary to the premise that life is always more precious in any form than death, this Court has permitted action that would accelerate the termination of life in particular cases. In re Quinlan, supra, 70 N.J. at 41 ; see In re Conroy, supra, 188 N.J.Super. 523 . Other courts have also come to recognize the legitimacy and validity of individual choice to prefer nonexistence in extraordinary circumstances. E.g., In re Guardianship of Barry, 445 So. 2d 365 (Fla.Dist.Ct.App.1984) (natural parents of ten month old terminally ill child in permanent vegetative coma can refuse or order discontinued his life support system); In re Osborne, 294 A.2d 372 (D.C.1972) (dying patients can refuse treatment on religious grounds); Eichner v. Dillon, 73 A.D.2d 431 , 426 N.Y.S.2d 517 (N.Y.App.Div.1980), modified, 52 N.Y.2d 363 , 438 N.Y.S.2d 266 , 420 N.E.2d 64 (1981) (guardian can discontinue life support for patient in a chronic vegetative state to carry out patient’s prior expressed wish); Satz v. Perlmutter, 362 So.2d 160 (Fla.Dist.Ct.App.1978), aff’d, 379 So.2d 359 (Fla.1980) (mentally competent, terminally ill patient can exercise right of self-determination by electing to remove respirator, even if inevitable result is his own death); In re Estate of Brooks, 32 Ill.2d 361 , 205 N.E.2d 435 (1965) (dying patients can refuse treatment on religious grounds); Superintendent of Belchertown v. Saikewicz, 373 Mass. 728 , 370 N.EM 417 (1977) (hospital can withhold painful treatment from terminally ill, mentally incompetent patient); In re Dinnerstein, 6 Mass.App. 466 , 380 N.E.2d 134 (1978) (doctors can withhold resuscitation of terminally ill mental incompetent). In vindicating this individual right, the Court does not arrogate to itself the individual’s choice. Rather, it allows the individual’s guardian or surrogate to make that choice, recognizing not only the legitimacy of a personal right to opt for nonexistence, but also the necessity of protecting that choice in *368 order to preserve a basic right of personal autonomy and self-detehnination. We should, therefore, acknowledge in this case that individuals may lawfully determine in a necessitous or exigent setting that nonlife may reasonably be preferred over life. If we accept that premise — as we must, encompassing as it does both a fundamental personal right and, frequently, the best interests of the individual — then we ought to conclude that damages flow from the deprivation of this right and that the infant plaintiff should be reasonably compensated. Concededly, the difficulties in formulating standards to assess damages for an infant plaintiff who asserts wrongful life, claiming he was denied the choice of nonexistence over an impaired life, are manifold. Though such a measurement is unquestionably difficult, “to deny * * * redress for * * * injuries merely because damages cannot be measured with precise exactitude would constitute a perversion of fundamental principles of justice.” Berman, supra, 80 N.J. at 433 ; see also Nappe v. Anschelewitz, 97 N.J. 37 , 41 n. 1 (1984). Although the infant plaintiffs injury consists of the deprivation of his parents’ choice of whether to bring him into an afflicted existence, his damages need not be assessed by expressing a preference of nonexistence over existence. There are alternative standards that may be used feasibly in appropriate cases. One such approach can be a balancing test, comparing the severity of the child’s defects against the benefits of his life; when the burden outweighs the benefits, the difference between the burden of life with defects and the benefits of that impaired existence can be the measure of damages. See In re Quinlan, supra, 70 N.J. 10 ; In re Conroy, supra, 188 N.J.Super. 523 ; Note, supra, 55 S.Cal.L.Rev., at 502, citing Comment, “‘Wrongful Life’: The Right Not to be Born,” 54 Tul.L.Rev. 480, 498 (1980);. 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. Capron, 79 Colum.L.Rev., supra, at 654. Further, in appropriate *369 circumstances, diminished or impaired childhood can also constitute an element of damages. Supra at 345-351. In sum, we should recognize that the gravamen of the familial tort is the denial of parental choice with respect to their infant’s life. That tort unquestionably impacts on the infant. Recognition of the tort and the reality of the damages that ensue does not require that the court itself in any case determine that nonlife is to be preferred over life, but only that the individuals involved were denied self-determination and their right to exercise that preference. I would leave to plaintiff the initial burden to marshall competent evidence to demonstrate the elements that should be weighed in assessing an award of damages. I would not, as the Court does now, close the door to any direct relief on behalf of the afflicted infant. For these reasons, I dissent in part from the judgment of the Court. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9752794. Public record. Not legal advice.