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
How later courts described this case
- 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
- 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"
Written by the judges who cited it.
The opinion
SCHREIBER, J.,
dissenting in part.
I join in substantially all of Justice Pollock’s sensitive opinion concerning the infant’s claim of general damages for wrongful life. However, I cannot agree that the defendant doctors must pay the infant the costs of medical and other health-care expenses that were not incurred as a result of any breach of duty owed by the doctors to the infant.
The majority recognizes, ante at 353-55, as do I, that the child’s wrongful life action for general damages is fundamentally flawed. 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). The bedrock for that conclusion is that man does not know whether nonlife would have been preferable to an impaired life. As Chief Justice Weintraub so eloquently framed the issue:
With respect to the claim advanced on behalf of the infant, I agree with the majority that it cannot be maintained. Ultimately, the infant’s complaint is that he would be better off not to have been born. Man, who knows nothing of death or nothingness, cannot possibly know whether that is so.
*370 We must remember that the choice is not between being born with health or being born without it; it is not claimed the defendants failed to do something to prevent or reduce the ravages of rubella. Rather the choice is between a worldly existence and none at all. Implicit, beyond this claim against a physician for faulty advice, is the proposition that a pregnant woman who, duly informed, does not seek an abortion, and all who urge her to see the pregnancy through, are guilty of wrongful injury to the fetus, and indeed that every day in which the infant is sustained after birth is a day of wrong. To recognize a right not to be born is to enter an area in which no one could find his way. [Gleitman v. Cosgrove, 49 N.J. 22, 63 (1967) (Weintraub, C.J., dissenting in part).]
Once one acknowledges, as the majority has, ante at 353-55, that the child has no cause of action for general damages stemming from wrongful life, it is unfair and unjust to charge the doctors with the infant’s medical expenses. The position that the child may recover special damages despite the failure of his underlying theory of wrongful life violates the moral code underlying our system of justice from which the fundamental principles of tort law are derived.
An essential element of negligence law is that the defendant’s conduct must proximately cause the plaintiff’s damages. Most significant is the fact here that the defendant doctors did not injure the child. The doctors did not cause or fail to do something to prevent the multiple birth defects. Yet the damages with which the doctors are being charged are the costs of the medical expenses necessitated by those birth defects.
It is, of course, proper for a court to inquire whether traditional common-law notions should continue to be followed. Therefore, it is appropriate to ask why the crucial component— causation — should not be eliminated in assessing special damages against these defendants. The reason for proximate cause is that it is fair to require a defendant to pay for the damages he causes, and it is generally unfair to charge a defendant for damages he does not cause.
There are two circumstances in which monetary awards unrelated to the plaintiff’s injury may be justifiable. The first is when punishment is in order, that is, when the defendant should be punished civilly for wanton and willful misconduct to *371 the plaintiff. However, there is no allegation that the defendants’ conduct approached that level and, indeed, the majority accepts the proposition that the defendants did not direct any improper conduct toward the infant plaintiff.
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. How realistic is that contention? First, doctors carry malpractice insurance, and the costs seemingly imposed on the defendants will actually be borne by those members of the public using the services of obstetricians or whatever grouping of doctors occurs for insurance purposes. Second, under existing law, parents have a malpractice claim for the identical misconduct. Schroeder v. Perkel, 87 N.J. 53 (1981). Thus, the possible deterrent effect is already there.
Finally, some other forms of deterrence against malpractice now exist. The Legislature has acted to protect society from incompetent doctors by authorizing the State Board of Medical Examiners to suspend or revoke a doctor’s license when it has been demonstrated that he is professionally incompetent to practice medicine. N.J.S.A. 45:9 — 16(i). Hospitals have also established their own standards of care, and may revoke the hospital privileges of doctors who fail to satisfy those standards, directly affecting the doctors’ ability to practice medicine. Cf. Greisman v. Newcomb Hosp., 40 N.J. 389 (1963) (hospital’s discretionary power to grant admitting privileges to doctors must be exercised in the public interest).
On balance I do not believe the Court is justified in discarding the concept that defendants ordinarily pay as damages only those expenses that are incurred as a result of the defendants’ action or inaction. To make the leap from negligence to non-causally-related damages is unwarranted in this case. I, too, am sensitive to the difficulties with which this family must grapple. However, sympathy for a handicapped child and his parents should not lead us to ignore the notions of responsibili *372 ty, causation, and damage that underlie the entire philosophy of our system of justice. It would be unwise — and, what is more, unjust — to permit the plaintiff to recover damages from persons who caused him no injury. I cannot concur in such a result.
For affirmance in part and for reversal in part — Chief Justice WILENTZ, and Justices CLIFFORD, POLLOCK, O’HERN and GARIBALDI — 5.
Concurring in part; dissenting in part — Justice HANDLER — 1.
Dissenting in part — Justice SCHREIBER — 1.