finding courts not equipped to handle the task of comparing the value of life in an impaired state and nonexistenceSummary of this case from Anderson v. St. Francis
Submitted November 27, 1978
Decided December 27, 1978
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, DAVID T. GIBBONS, J.
Norman Bard, Joseph T. Mirabel and Walter F. Wortman for appellants in the first above-entitled action. John Anthony Bonina for respondents in the first above-entitled action.
Richard A. Young, Stephen J. Pribula and Anthony M. Sola for appellants-respondents in the second above-entitled action. Gerald L. Gould for respondents-appellants in the second above-entitled action.
From its earliest days, the common law steadfastly clung to the notion that "in civil court the death of a human being could not be complained of as an injury." (Baker v Bolton, 1 Camp 493, 170 Eng Rep 1033 [KB, 1808].) Judicial hesitance to chart a novel course beyond the safe harbors afforded by prevailing legal theory, particularly the principle that a tort died with its victim (Huggins v Butcher, 1 Brown Gold 205, 123 Eng Rep 756 [CP, 1607]), spurred legislative recognition of the cause of action since known as "wrongful death". (See, generally, Prosser, Torts [4th ed], § 127.) Ironically, in the relatively brief period since the enactment of the first wrongful death statute (Fatal Accidents Act, 1846, 9 10 Vict, ch 93), evolving legal theory has come full cycle. Although no longer shackled by the conceptual difficulties formerly posed by a "wrongful death" action, courts have again been drawn toward the murky waters at the periphery of existing legal theory to test the validity of a cause of action for what has been generically termed "wrongful life".
In Becker v Schwartz, Dolores Becker, then 37 years of age, conceived a child in September, 1974. After Dolores and her husband, Arnold Becker, learned of the pregnancy in October, they engaged the services of defendants, specialists in the field of obstetrics and gynecology. Thereafter, from approximately the tenth week of pregnancy until the birth of their child, Dolores Becker remained under defendants' exclusive care. Tragically, on May 10, 1975, Dolores Becker gave birth to a retarded and brain-damaged infant who suffers, and will continue to suffer for the remainder of her life, from Down's Syndrome, commonly known as mongolism.
"Down's Syndrome" is a syndrome of mental retardation associated with a variable constellation of physical abnormalities caused by a chromosomal anomaly. (Stedman's Medical Dictionary [23d ed].) While a normal fetus has 23 pairs of chromosomes, mongoloid children commonly have an additional chromosome in what is classified as chromosome pair 21, giving rise to the descriptive term "trisomy 21". It is this chromosomal anomaly — a critical portion of chromosome 21 being represented in most cells three times instead of twice — which is thought to precipitate this syndrome of mental retardation. (See Lilienfeld, Epidemiology of Mongolism 1-2 .)
It is plaintiffs' contention that throughout the period during which Dolores Becker was under the care of defendants plaintiffs were never advised by defendants of the increased risk of Down's Syndrome in children born to women over 35 years of age. Nor were they advised, allege plaintiffs, of the availability of an amniocentesis test to determine whether the fetus carried by Dolores Becker would be born afflicted with Down's Syndrome.
Amniocentesis is the "[t]ransabdominal * * * aspiration of fluid from the amniotic sac." (Stedman's Medical Dictionary [23d ed].) Biochemical tests are performed on the sample of amniotic fluid withdrawn, often times allowing the detection of chromosomal abnormality.
Plaintiffs commenced this action seeking damages on behalf of the infant for "wrongful life", and, in their own right, for the various sums of money they will be forced to expend for the long-term institutional care of their retarded child. Plaintiffs' complaint also seeks damages for the emotional and physical injury suffered by Dolores Becker as a result of the birth of her child, as well as damages for the injury suffered by Arnold Becker occasioned by the loss of his wife's services and the medical expenses stemming from her treatment.
Upon motion by defendants, Special Term dismissed plaintiffs' complaint in its entirety as failing to state a cause of action. The Appellate Division modified the order of Special Term, however, sustaining plaintiffs' complaint except to the extent that it seeks recovery of damages "for psychiatric injuries or emotional distress of plaintiff Dolores E. Becker and to the extent that plaintiff Arnold Becker's claim for loss of services and medical expenses is based upon such psychiatric injuries". ( 60 A.D.2d 587.) Defendants now appeal to this court on a certified question.
In the companion case, Park v Chessin, Hetty Park gave birth in June, 1969 to a baby who, afflicted with polycystic kidney disease, died only five hours after birth. Concerned with a possible reoccurrence of this disease in a child conceived in the future, Hetty Park and her husband, Steven Park, consulted defendants, the obstetricians who treated Hetty Park during her first pregnancy, to determine the likelihood of this contingency. In response to plaintiffs' inquiry, defendants are alleged to have informed plaintiffs that inasmuch as polycystic kidney disease was not hereditary, the chances of their conceiving a second child afflicted with this disease were "practically nil". Based upon this information, plaintiffs allege that they exercised a conscious choice to seek conception of a second child. As a result, Hetty Park again became pregnant and gave birth in July, 1970 to a child who similarly suffered from polycystic kidney disease. Unlike their first child, however, plaintiffs' second child survived for two and one-half years before succumbing to this progressive disease.
Polycystic disease of the kidneys is a condition "characterized by numerous cysts (of varying sizes) scattered diffusely throughout the kidneys, sometimes resulting in organs that tend to resemble grape-like clusters of cysts." (Stedman's Medical Dictionary [23d ed].)
Alleging that contrary to defendants' advice polycystic kidney disease is in fact an inherited condition, and that had they been correctly informed of the true risk of reoccurrence of this disease in a second child, they would not have chosen to conceive, plaintiffs commenced this action seeking damages on behalf of the infant for "wrongful life" and, in their own right, for the pecuniary expense they have borne for the care and treatment of their child until her death. Plaintiffs' complaint also seeks damages for the emotional and physical injuries suffered by Hetty Park as the result of the birth of her child; damages for emotional injuries and expenses suffered by Steven Park; damages for the injury suffered by Steven Park occasioned by the loss of his wife's services; and damages on behalf of plaintiffs, as administrators of their child's estate, for wrongful death.
Upon defendants' motion to dismiss plaintiffs' complaint, Special Term sustained those causes of action seeking damages for: "wrongful life"; plaintiffs' pecuniary expense in caring for the child; Hetty Park's emotional and physical injuries stemming from the birth; and Steven Park's loss of his wife's services. On appeal taken by defendants, the Appellate Division modified by further dismissing so much of plaintiffs' complaint as seeks damages "(1) for the mental anguish or emotional distress of plaintiff Hetty B. Park and (2) for the loss of that plaintiff's services, insofar as the claim for loss of services is based upon her mental anguish or emotional distress". ( 60 A.D.2d 80, 95.) Plaintiffs and defendants cross-appeal to this court on a certified question.
At the outset, emphasis must necessarily be placed upon the posture in which these cases are now before this court. The question presented for review is not whether plaintiffs should ultimately prevail in this litigation, but rather, more narrowly, whether their complaints state cognizable causes of action. For the purposes of our review, limited as it is to an evaluation of the sufficiency of plaintiffs' complaints, their allegations must be assumed to be true. (See Howard v Lecher, 42 N.Y.2d 109, 112; Cohn v Lionel Corp., 21 N.Y.2d 559, 562; Kober v Kober, 16 N.Y.2d 191, 193.) Accordingly, we accept, without expressing any opinion as to defendants' liability, each of plaintiffs' allegations: to wit, that defendants failed to inform plaintiffs accurately of the risks involved in their pregnancies, and, in Becker, of the availability of an amniocentesis test; and, that had they been accurately informed, plaintiffs would have, in Park, chosen not to conceive a second child, and, in Becker, undergone an amniocentesis test, the results of which would have precipitated a decision on their part to terminate the pregnancy.
Even as a pure question of law, unencumbered by unresolved issues of fact, the weighing of the validity of a cause of action seeking compensation for the wrongful causation of life itself casts an almost Orwellian shadow, premised as it is upon concepts of genetic predictability once foreign to the evolutionary process. It borders on the absurdly obvious to observe that resolution of this question transcends the mechanical application of legal principles. Any such resolution, whatever it may be, must invariably be colored by notions of public policy, the validity of which remains, as always, a matter upon which reasonable men may disagree.
Thoughtful analysis of the validity of "wrongful life" as an emerging legal concept requires, in the first instance, a clear understanding of the alleged wrong upon which the cause of action is predicated. Not surprisingly, the term "wrongful life" has functioned as a broad umbrella under which plaintiffs alleging factually divergent wrongs have sought judicial recognition of their claims. To be distinguished from the cases before us are those in which recovery is sought for what may perhaps be most appropriately labeled "wrongful conception", wherein parents, one of whom has undergone an unsuccessful surgical birth control procedure, have sought damages for the birth of an unplanned child. There, damages have not been sought on behalf of the child — a healthy and normal infant — but by the parents for expenses attributable to the birth, including the pecuniary expense of rearing the child. Judicial reaction to the "wrongful conception" cause of action has been mixed. In a somewhat similar vein, recovery has been sought for damages incurred upon the birth of a child attributable to a "wrongful diagnosis" of an existing pregnancy, resulting in the deprivation of the mother's choice to terminate the pregnancy within the permissible time period. (Compare Debora S. v Sapega, 56 A.D.2d 841, and Ziemba v Sternberg, 45 A.D.2d 230 [sustaining cause of action], with Rieck v Medical Protective Co., 64 Wis.2d 514 [rejecting cause of action].)
For a discussion of the varied nature of the claims asserted in this area see generally Kashi, The Case of the Unwanted Blessing: Wrongful Life (31 U Miami L Rev 1409); Tedeschi, On Tort Liability for "Wrongful Life" (1 Israel L Rev 513); Note, A Cause of Action for "Wrongful Life": (A Suggested Analysis) (55 Minn L Rev 58); Note, Torts Prior to Conception: A New Theory of Liability (56 Neb L Rev 706); Note, Remedy for the Reluctant Parent: Physicians' Liability for the Post-Sterilization Conception and Birth of Unplanned Children (27 U Fla L Rev 158); Note, Father and Mother Know Best: Defining the Liability of Physicians for Inadequate Genetic Counseling (87 Yale LJ 1488); Comment, Strict Liability: A "Lady in Waiting" for Wrongful Birth Cases (11 Cal W L Rev 136); Comment, Wrongful Birth: The Emerging Status of a New Tort (8 St Mary's LJ 140); Comment, Preconception Torts: Foreseeing the Unconceived (48 U Col L Rev 621).
(See, e.g., La Point v Shirley, 409 F. Supp. 118 [unsuccessful tubal ligation]; Clegg v Chase, 89 Misc.2d 510 [unsuccessful sterilization]; Coleman v Garrison, 349 A.2d 8 [Del] [unsuccessful sterilization]; Christensen v Thornby, 192 Minn. 123 [unsuccessful sterilization]; Shaheen v Knight, 11 Pa. D. C.2d 41 [unsuccessful sterilization]; Terrell v Garcia, 496 S.W.2d 124 [Tex], cert den 415 U.S. 927 [unsuccessful tubal ligation] [rejecting "wrongful conception" cause of action]; contra, e.g., Bishop v Byrne, 265 F. Supp. 460 [unsuccessful sterilization]; Custodio v Bauer, 251 Cal.App.2d 303 [unsuccessful sterilization]; Anonymous v Hospital, 33 Conn. Sup. 125 [unsuccessful tubal ligation]; Betancourt v Gaylor, 136 N.J. Super. 69 [unsuccessful sterilization]; Bowman v Davis, 48 Ohio St.2d 41 [unsuccessful tubal ligation]; cf. Troppi v Scarf, 31 Mich. App. 240 [negligent filling of birth control prescription] [recognizing cause of action for "wrongful conception"].)
While courts have struggled with the concepts of "wrongful conception" or "wrongful diagnosis" as cognizable causes of action, they have had little difficulty in rejecting a cause of action which may be distinguished by use of the term "wrongful birth". In the latter cause of action an illegitimate, but otherwise healthy child, seeks recovery in his or her own behalf for the injury suffered as a consequence of his or her birth into this world as a stigmatized child. To this point, courts have refused to sustain this cause of action. (See Williams v State of New York, 18 N.Y.2d 481 [action against State which had custody of mother]; Stills v Gratton, 55 Cal.App.3d 698 [action against physician for alleged negligent performance of an abortion]; Zepeda v Zepeda, 41 Ill. App.2d 240, cert den 379 U.S. 945 [action against father]; Slawek v Stroh, 62 Wis.2d 295 [action against father].)
Standing distinctly apart from claims based upon a wrongful conception, a failure to diagnose a pregnancy, or an illegitimate birth, in which the essence of the wrong for which compensation is sought is the birth of a healthy and normal — albeit, unplanned — child, plaintiffs' claims are premised upon the birth of a fully intended but abnormal child for whom extraordinary care and treatment is required. It is not contended that the defendant physicians' treatment of Dolores Becker and Hetty Park caused the abnormalities in their infants (see Renslow v Mennonite Hosp., 67 Ill.2d 348 [sustaining cause of action based upon blood transfusion given to mother]; Sylvia v Gobeille, 101 R.I. 76 [sustaining cause of action based upon failure to prescribe drug during pregnancy]; cf. Jorgensen v Meade Johnson Labs., 483 F.2d 237 [sustaining cause of action based upon injurious oral contraceptive]), but only that had plaintiffs been properly advised by defendants of the risks of abnormality, their infants would never have been born.
Irrespective of the label coined, plaintiffs' complaints sound essentially in negligence or medical malpractice. As in any cause of action founded upon negligence, a successful plaintiff must demonstrate the existence of a duty, the breach of which may be considered the proximate cause of the damages suffered by the injured party. (See Restatement, Torts 2d, § 281; Prosser, Torts [4th ed], § 30.)
An examination of plaintiffs' complaints leads to the conclusion that, insofar as plaintiffs allege claims on behalf of their infants, whether denominated as claims for wrongful life or otherwise, they have failed to state legally cognizable causes of action. If it be assumed that under the facts at bar defendants, as physicians, owed a duty to the infants in utero as well as to their parents (cf. Woods v Lancet, 303 N.Y. 349), defendants' breach of that duty may be viewed as the proximate cause for the infants' birth. Had Hetty and Steven Park been accurately advised by their physicians of the chances that a future child of theirs would suffer from polycystic kidney disease, they allege that they would not have chosen to conceive a second child. Similarly, had Dolores and Arnold Becker been accurately advised of the chances that their already conceived child would be born afflicted with Down's Syndrome, and of the availability of an amniocentesis test, they allege that they would have undergone that test, and had it indicated the presence of Down's Syndrome in their child, that they would have terminated the pregnancy within the permissible time period. (See Roe v Wade, 410 U.S. 113; Penal Law, § 125.05.)
However, there are two flaws in plaintiffs' claims on behalf of their infants for wrongful life. The first, in a sense the more fundamental, is that it does not appear that the infants suffered any legally cognizable injury. (Cf. Williams v State of New York, 18 N.Y.2d 481, 484, supra.) There is no precedent for recognition at the Appellate Division of "the fundamental right of a child to be born as a whole, functional human being" (60 A.D.2d, at p 88). Surely the use of somewhat similar words in another context affords no such basis. (Cf. Endresz v Friedberg, 24 N.Y.2d 478, 483, distinguishing Woods v Lancet, 303 N.Y. 349.) Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians. Surely the law can assert no competence to resolve the issue, particularly in view of the very nearly uniform high value which the law and mankind has placed on human life, rather than its absence. Not only is there to be found no predicate at common law or in statutory enactment for judicial recognition of the birth of a defective child as an injury to the child; the implications of any such proposition are staggering. Would claims be honored, assuming the breach of an identifiable duty, for less than a perfect birth? And by what standard or by whom would perfection be defined?
There is also a second flaw. The remedy afforded an injured party in negligence is designed to place that party in the position he would have occupied but for the negligence of the defendant. (See Martin v Dierck Equip. Co., 43 N.Y.2d 583, 589.) Thus, the damages recoverable on behalf of an infant for wrongful life are limited to that which is necessary to restore the infant to the position he or she would have occupied were it not for the failure of the defendant to render advice to the infant's parents in a nonnegligent manner. The theoretical hurdle to an assertion of damages on behalf of an infant accruing from a defendant's negligence in such a case becomes at once apparent. The very allegations of the complaint state that had the defendant not been negligent, the infant's parents would have chosen not to conceive, or having conceived, to have terminated rather than to have carried the pregnancy to term, thereby depriving the infant plaintiff of his or her very existence. Simply put, a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependent upon a comparison between the Hobson's choice of life in an impaired state and nonexistence. This comparison the law is not equipped to make. (See Smith v United States, 392 F. Supp. 654; Stewart v Long Is. Coll. Hosp., 35 A.D.2d 531, affd 30 N.Y.2d 695; Gleitman v Cosgrove, 49 N.J. 22; Jacobs v Theimer, 519 S.W.2d 846 [Tex]; Dumer v St. Michael's Hosp., 69 Wis.2d 766.) Recognition of so novel a cause of action requiring, as it must, creation of a hypothetical formula for the measurement of an infant's damages is best reserved for legislative, rather than judicial, attention. (Cf. Moore v Metropolitan Life Ins. Co., 33 N.Y.2d 304, 313; Codling v Paglia, 32 N.Y.2d 330, 344-345.) Accordingly, plaintiffs' complaints insofar as they seek damages on behalf of their infants for wrongful life should be dismissed for failure to state legally cognizable causes of action.
There remains for consideration, however, the validity of plaintiffs' causes of action brought in their own right for damages accruing as a consequence of the birth of their infants. There can be no dispute at this stage of the pleadings that plaintiffs have alleged the existence of a duty flowing from defendants to themselves and that the breach of that duty was the proximate cause of the birth of their infants. That they have been damaged by the alleged negligence of defendants has also been pleaded. Unlike the causes of action brought on behalf of their infants for wrongful life, plaintiffs' causes of action, also founded essentially upon a theory of negligence or medical malpractice, do allege ascertainable damages: the pecuniary expense which they have borne, and in Becker must continue to bear, for the care and treatment of their infants. Certainly, assuming the validity of plaintiffs' allegations, it can be said in traditional tort language that but for the defendants' breach of their duty to advise plaintiffs, the latter would not have been required to assume these obligations. Calculation of damages necessary to make plaintiffs whole in relation to these expenditures requires nothing extraordinary. The fact that plaintiffs' wrongful life claims brought on behalf of their infants do not state legally cognizable causes of action inasmuch as they fail to allege ascertainable damages in no way affects the validity of plaintiffs' claims for pecuniary loss. Plaintiffs state causes of action in their own right predicated upon a breach of a duty flowing from defendants to themselves, as prospective parents, resulting in damage to plaintiffs for which compensation may be readily fixed. (See Jacobs v Theimer, 519 S.W.2d 846 [Tex], supra; Dumer v St. Michael's Hosp., 69 Wis.2d 766, supra.) There is now no occasion, in passing on the sufficiency of the complaints to state a cause of action, to determine with particularity what items of expense or loss may properly be taken into account in computation of the damages recoverable. Such questions properly await consideration and resolution presumably on trial, after liability has been proved, if it can be. (See Johnson v Yeshiva Univ., 42 N.Y.2d 818.)
Of course, this is not to say that plaintiffs may recover for psychic or emotional harm alleged to have occurred as a consequence of the birth of their infants in an impaired state. The recovery of damages for such injuries must of necessity be circumscribed. Controlling on this point is Howard v Lecher ( 42 N.Y.2d 109, supra), in which parents of a child born afflicted with Tay-Sachs disease sought recovery for the trauma they endured witnessing their child succumb to this degenerative disorder. Similar to the present cases, the plaintiffs in Howard alleged that their physician failed to inform them of the risk involved in their pregnancy and of the availability of tests to determine whether their child would be born afflicted with Tay-Sachs disease. Had they been so advised, the plaintiffs maintained, they would have undergone the available tests, the results of which, if indicative of the presence of Tay-Sachs disease in their unborn child, would have precipitated a decision on their part to terminate the pregnancy.
While sympathetic to the plight of these parents, this court declined for policy reasons to sanction the recovery of damages for their psychic or emotional harm occasioned by the birth and gradual death of their child. To have permitted recovery in Howard, we observed, would have "inevitably led to the drawing of artificial and arbitrary boundaries." (42 N.Y.2d, at p 113, supra.)
Contrary to the contention of the dissent, to permit plaintiffs to recover for pecuniary loss while precluding recovery for alleged emotional injuries suffered as a result of their infants' birth does not run counter to this court's decision in Johnson v State of New York ( 37 N.Y.2d 378). In Johnson, we sustained a cause of action for emotional harm predicated upon the plaintiff's receipt of a notice informing her of the death of her mother when, in fact, she was very much alive. In so holding, we recognized the existence of a duty on the part of the defendant flowing to the plaintiff daughter to refrain from issuing such notices in a negligent manner. The breach of that duty, we held, entitled the plaintiff to recover damages for "the proven harmful consequences proximately caused by the breach." (37 N.Y.2d, at p 383, supra.) Recovery was, therefore, permitted not only for the plaintiff's pecuniary loss, but also for emotional harm caused by the tortious act.
Seizing upon the broad principle stated in Johnson, the dissent posits that recognition of a duty flowing directly from defendants to plaintiffs would require recognition of plaintiffs' right to recover damages for emotional harm, as well as for pecuniary loss occasioned by the birth of their infants. To do so, maintains the dissent, would eviscerate our holding in Howard v Lecher ( 42 N.Y.2d 109, supra). However, nothing in Johnson mandates this result.
Johnson held only that once a duty flowing directly from a defendant to a plaintiff is breached, the plaintiff may recover damages for "the proven harmful consequences proximately caused by the breach." (37 N.Y.2d, at p 383, supra.) We had little difficulty in concluding that the psychological impact resulting from a daughter's receipt of a notice incorrectly indicating that her mother had expired would be debilitating. That a daughter might receive such notice with mixed emotions lacks any rational basis in human experience. The same cannot be confidently said with respect to the birth of a child, the conception of which was planned and fully desired by the parents. To be sure, parents of a deformed infant will suffer the anguish that only parents can experience upon the birth of a child in an impaired state. However, notwithstanding the birth of a child afflicted with an abnormality, and certainly dependent upon the extent of the affliction, parents may yet experience a love that even an abnormality cannot fully dampen. To assess damages for emotional harm endured by the parents of such a child would, in all fairness, require consideration of this factor in mitigation of the parents' emotional injuries. (See Restatement, Torts, § 920.) Unlike the case in Johnson where the element of mitigation was not involved, and unlike plaintiffs' causes of action for pecuniary loss in the instant cases, calculation of damages for plaintiffs' emotional injuries remains too speculative to permit recovery notwithstanding the breach of a duty flowing from defendants to themselves. As in the case of plaintiffs' causes of action for damages on behalf of their infants for wrongful life, the cognizability of their actions for emotional harm is a question best left for legislative address.
Accordingly, in Becker v Schwartz the question certified is answered in the negative. The order of the Appellate Division should be modified, with costs, by dismissing plaintiffs' complaint except to the extent that it seeks recovery of the sums expended for the long-term institutional care of their retarded child.
In Park v Chessin, the question certified is answered in the negative. The order of the Appellate Division should be modified, with costs, by dismissing plaintiffs' complaint except to the extent that it seeks recovery for the sums expended for the care and treatment of their child until her death.
I agree with the majority opinion insofar as it dismisses the "wrongful life" causes of action brought on behalf of each of the two infants. However, I would not posit that disposition on a professed inability to calculate the extent and amount of the damages.
My own reason is a more fundamental one. There can be no tort "except in the case of some individual whose interests have suffered" and in cases such as these there is no way of showing that the "interests" of the infants have suffered at all (Prosser, Torts [4th ed], § 30).
My point will become more concrete if we contrast the basis for the parents' own causes of action here with that of their children. Essentially, the claim of the parents in each case is that, but for the defendants' dereliction in failing to properly inform the parents of the great risk that their children would be born in hopelessly and permanently deformed states, the parents would have arranged to have the pregnancy terminated in the one case, and, in the other, the child would not have been conceived at all. The direct consequence of the medical malpractice, the parents allege, was to frustrate the intended exercise of the legal right in such circumstances (see Roe v Wade, 410 U.S. 113) to have avoided the special responsibilities and attendant physical, economic or psychic damage thus imposed upon them. As Judge JASEN'S opinion makes clear, a cause of action is thus spelled out.
But the same cannot be said about the two infants' causes of action. It is undisputed that the defendants neither created nor added to the children's abnormalities; the claim is simply that, but for their failure to act in accordance with accepted medical standards, the children would not have been born. Who then can say, as it was essential to the parents' causes of action that they say for themselves, that, had it been possible to make the risk known to the children-to-be — in their cellular or fetal state or, let us say, in the mind's eye of their future parents — that the children too would have preferred that they not be born at all?
To ordinary mortals, the answer to the question obviously is "no one". Certainly the answer does not lie in the exercise by the children, if their mental conditions permit, of subjective judgments long after their births. Therefore, whatever be the metaphysical or philosophical answer — speculative, perhaps debatable, but hardly resolvable — and however desirable it may be for society to otherwise treat these problems with sensitivity, I am compelled to conclude that the matter is just not justiciable (cf. Williams v State of New York, 18 N.Y.2d 481, 484 [DESMOND, Ch. J.]; Stewart v Long Is. Coll. Hosp., 58 Misc.2d 432, 436, mod on other grounds 35 A.D.2d 531, affd 30 N.Y.2d 695; Gleitman v Cosgrove, 49 N.J. 22, 63 [WEINTRAUB, Ch. J., dissenting opn]; Note, 87 Yale LJ 1488, 1500-1502; Comment, 13 Wayne L Rev 750, 756-757).
In my view, it is therefore unnecessary to reach the "uncertainty of damages" rationale on which the majority opinion lays such great stress. For if the right to bring a "wrongful life" action could be conceptualized, it is not to be assumed, given the elasticity with which tort law adapts to the need to fix damages for intangible injuries, that difficulty in their calculation would immunize the tort-feasor from damages (see Note, 55 Minn L Rev 58, 62-67). It is, for instance, a recognized axiom, not peculiar to traditional tort law alone, that where a wrong "itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts" (Story Parchment Co. v Patterson Co., 282 U.S. 555, 563; see, also, Prosser, Torts [4th ed], § 30; Birnbaum Rheingold, Torts, 28 Syracuse L Rev 525, 564-565).
Now a word regarding the majority's determination that the causes of action brought for the parents' damages in their own right are viable save to the extent they seek damages for emotional injury. While I join in that determination too, as to emotional injury I do so on the constraint of the court's earlier decision in Howard v Lecher ( 42 N.Y.2d 109). I also note that, in joining Judge COOKE in dissent in Howard, I took the majority's determination in Howard to be a further step, albeit via the quicksand of an asserted public policy, in the retreat Tobin v Grossman ( 24 N.Y.2d 609) had signalled for the time from the forward-looking principles reflected by earlier cases such as Ferrara v Galluchio ( 5 N.Y.2d 16) and Battalla v State of New York ( 10 N.Y.2d 237).
Finally, I call attention to one other fact. To the extent that plaintiffs Hetty Park and Dolores Becker have suffered ascertainable damages in the form of pain and suffering attendant upon their pregnancies (in Ms. Park's case for the entire pregnancy and in Ms. Becker's case for its continuance beyond the point when she claims it would have been terminated), these would appear to be clearly compensable. Thus, if the damages question were before us, these more traditional elements of damages would be distinguishable from those proscribed by Howard, i.e., psychic or emotional harm alleged to have resulted from the birth of the infants in an impaired state.
Insofar as this opinion relates to the case of Becker v Schwartz, I agree with the majority that the suit for "wrongful life" brought on behalf of the infant should be dismissed. I would, however, also dismiss the parents' collateral suit for the expense of rearing an unwanted child.
A doctor who provides prenatal care to an expectant mother should not be held liable if the child is born with a genetic defect. Any attempt to find the physician responsible, even to a limited extent, for an injury which the child unquestionably inherited from his parents, requires a distortion or abandonment of fundamental legal principles and recognition, by the courts, of controversial rights and duties more appropriate for consideration and debate by a legislative body. These problems, which are always present when the child born with a genetic disorder seeks to hold the doctor responsible, are compounded when the parents seek compensation, on their own behalf, for collateral injuries occasioned by emotional distress or the increased cost of caring for a handicapped child.
The heart of the problem in these cases is that the physician cannot be said to have caused the defect. The disorder is genetic and not the result of any injury negligently inflicted by the doctor. In addition it is incurable and was incurable from the moment of conception. Thus the doctor's alleged negligent failure to detect it during prenatal examination cannot be considered a cause of the condition by analogy to those cases in which the doctor has failed to make a timely diagnosis of a curable disease. The child's handicap is an inexorable result of conception and birth.
Nevertheless the plaintiffs, parents and child, urge that the doctor should be held liable for the child's handicapped life, not because he caused the disorder, but because he is responsible for the child's birth. The theory is that if the doctor had advised the parents of the risk of bearing a handicapped child, and the availability of tests for detecting the disorder, the mother would have consented to the tests, the tests would have revealed the defect, the parents or at least the mother would have decided to have an abortion, the abortion would have been successfully performed and thus the child would not have been forced to lead a life of hardship. However, since the doctor failed or neglected to advise them of the risk, they claim that they were denied the opportunity to take the additional steps which would have terminated the pregnancy and thus the doctor should be held liable for the birth and the child's consequent handicapped existence. Even if we assume, as we must on a motion to dismiss the complaint, that the parents would have made all the difficult decisions leading to an abortion — a conclusion which could be certain, if ever, only in retrospect — we must still go to great lengths to find that the doctor's failure to detect the defect was the cause, indeed the proximate cause, of the child's handicapped life. And the causal relationship is even more remote when the parents seek to recover for an injury they have suffered as a result of the alleged injury to the child.
But the problems extend beyond causation. There is also the question as to what right the doctor violated and to whom the right belongs. The infant essentially claims that she had a right not to be born when birth would necessarily mean a life of hardship. The majority notes that the damages for violation of such a right would be impossible to assess. But on an even more fundamental level this cause of action must fail because the courts have long refused to recognize that such a right exists (Williams v State of New York, 18 N.Y.2d 481).
"Impossibility of entertaining this suit", we said in the Williams case (at p 484), "comes not so much from difficulty in measuring the alleged `damages' as from" the fact that this "is not a suable wrong that is cognizable in court." A majority at the Appellate Division apparently felt that this holding was dictated by the fact that abortion was then illegal, an impediment which has now been removed in many cases. That however was not the basis for our determination in Williams. The antiabortion law was not mentioned in the opinion and, in fact, the case did not involve a claim that the plaintiff should have been aborted, but that she should not have been conceived. It was alleged that her mother had been raped while a patient at a State mental institution and the plaintiff sought damages from the State for the social stigma and loss of legal rights that she must suffer as an illegitimate child. We noted that "[i]f the pleaded facts are true, the State was grievously neglectful as to her mother, and as a result the child may have to bear unfair burdens" (Williams v State of New York, supra, at p 484). Nevertheless we refused to recognize a right to be "born under one set of circumstances rather than another" as a "brand new ground for suit" (Williams v State of New York, supra, at pp 483, 484; see, also, Tobin v Grossman, 24 N.Y.2d 609, 614). And of course whether the infant was wrongfully conceived, as in Williams, or could have been legally aborted, as in the case now before us, is of no practical significance. In either event there is no right not to be born, even into a life of hardship, and thus no right cognizable at law which the defendant can be said to have violated.
Since the infant's suit must be dismissed, the parents' cause of action for the costs of "special treatment, teaching, care, medical services, aid and assistance throughout the lifetime of the infant" should be dismissed as well. A parent's right to recover expenses occasioned by an injury to the child "is based upon and arises out of the negligence which causes the injury to the child. The injury to the child results in a two-fold action, one for the father and one for the child" (Psota v Long Is. R.R. Co., 246 N.Y. 388, 395-396; cf. Maxson v Delaware Lackawanna Western R.R. Co., 112 N.Y. 559; Gray v Brooklyn Hgts. R.R. Co., 175 N.Y. 448). Thus the parents' suit for the pecuniary losses is derivative; it cannot stand alone (Reilly v Rawleigh, 245 App. Div. 190; Kotary v Spencer Speedway, 47 A.D.2d 127; O'Hearn v O'Hearn, 55 A.D.2d 766; cf. Maxson v Tomek, 244 App. Div. 604, mot for lv to app den 268 N.Y. 726). If the child cannot establish a good cause of action to recover for its injury, the parents' suit for collateral losses, flowing from the injury to the child, must also fail (see, e.g., Gleich v Volpe, 32 N.Y.2d 517; Warmsley v Long Is. Banana Co., 35 N.Y.2d 953; see, also, Glendenning v Feld, 285 App. Div. 604).
The majority, disregarding this principle, has held instead that the doctor owed a duty directly to the parents and thus they may recover, for a violation of their own rights, the special costs of raising the handicapped child. This involves the creation of a completely new tort. It also conflicts with our decision in Howard v Lecher ( 42 N.Y.2d 109) in which we held that the parents of a child born with a genetic defect could not recover from the doctor for the emotional distress that they had suffered as a result of the child's birth, even though the defect could have been detected and the pregnancy aborted if the doctor had advised the parents of the risk and the available medical tests. That determination was based on our prior decision in Tobin v Grossman ( 24 N.Y.2d 609, 611, supra) in which we said: "no cause of action lies for unintentional harm sustained by one, solely as a result of injuries inflicted directly on another".
The majority's attempt to distinguish Howard misses the point of the holding. The fact that the damage in the case now before us may be easily ascertained is of no consequence. We did not find that the damages in Howard were impossible to assess, nor did we refer to damages in the opinion. Neither is there any merit to the suggestion that we denied relief in that case solely because the parents sought to recover for mental injury, as opposed to the pecuniary losses requested here. That circumstance was not the controlling factor. Rather it was the indirect nature of the parents' injury which was found to be dispositive. Thus we rejected the argument made by the plaintiffs and the dissenting Judges that the doctor owed a duty to the mother so that "the injury was inflicted directly upon the individual claiming the harm and the same individual to whom the duty was owed was the one directly injured by the breach" (Howard v Lecher, supra, at p 116 [COOKE, J., dissenting]). Today, little more than a year after Howard was decided, a majority of the court has rejected the basis for the holding and has adopted the dissenting view.
In fact if, as the majority now holds, the doctor did breach a duty directly owed to the parents, there is no longer any reason why they should not be entitled to recover for their emotional suffering as well as the pecuniary loss. Our decision in Johnson v State of New York ( 37 N.Y.2d 378) is directly in point. In that case the plaintiff brought a claim against the State for emotional harm and pecuniary losses after State hospital employees had negligently misinformed her that her mother had died. After concluding that the plaintiff "was the one to whom a duty was directly owed by the hospital, and the one who was directly injured by the hospital's breach of that duty" we set aside the Appellate Division's determination that recovery should be limited to pecuniary losses. We stated at pages 383-384: "not only justice but logic compels the further conclusion that if claimant was entitled to recover her pecuniary losses she was also entitled to recover for the emotional harm caused by the same tortious act. The recovery of the funeral expenses stands only because a duty to claimant was breached. Such a duty existing and such a breach of that duty occurring, she is entitled to recover the proven harmful consequences proximately caused by the breach. In the light of the Battalla [ 10 N.Y.2d 237] and Ferrara [ 5 N.Y.2d 16] cases (supra) and the reasoning upon which they are based, recovery for emotional harm to one subjected directly to the tortious act may not be disallowed so long as the evidence is sufficient to show causation and substantiality of the harm suffered, together with a `guarantee of genuineness' to which the court referred in the Ferrara case". Certainly, in the present case, it could not be said that the parents' claim of emotional suffering is any less genuine than their claim of pecuniary loss.
In addition, although the parents in this case only seek compensation for the special expenses necessary for the care of a handicapped child, there is no logical reason why in other cases, parents should not be entitled to have the doctor also pay the normal costs of supporting the child. After all, if the doctor had not breached his duty, the child would never have been born and the parents would not have been burdened with any of the costs of support.
And there will inevitably be other costs, even more difficult to assess. A doctor exposed to liability of this magnitude will undoubtedly, in marginal cases, be inclined to practice "defensive medicine" by advising abortion rather than run the risk of having to pay for the lifetime care of the child if it is born with a handicap. Thus the majority's decision will involve human costs as well, in those cases where otherwise healthy children will be unnecessarily aborted as the only alternative to the threat of pecuniary liability.
In sum, by holding the doctor responsible for the birth of a genetically handicapped child, and thus obligated to pay most, if not all, of the costs of lifetime care and support, the court has created a kind of medical paternity suit. It is a tort without precedent, and at variance with existing precedents both old and new. Indeed the members of the majority are divided among themselves as to what principle of law requires the doctor to pay damages in this case. The limits of this new liability cannot be predicated. But if it is to be limited at all it would appear that it can only be confined by drawing arbitrary and artificial boundaries which a majority of the court consider popular or desirable. This alone should be sufficient to indicate that these cases pose a problem which can only be properly resolved by a legislative body, and not by courts of law.
Accordingly, the order of the Appellate Division should be reversed and the third and fourth causes of action dismissed.
I dissent in part and vote to modify the order of the Appellate Division by dismissing the complaint for the reasons stated by Judge WACHTLER in Becker v Schwartz.
Becker v Schwartz:
Chief Judge BREITEL and Judge JONES concur with Judge JASEN; Judge FUCHSBERG concurs in a separate opinion in which Judge COOKE concurs; Judge WACHTLER dissents in part and votes to reverse in another opinion in which Judge GABRIELLI concurs.
Order modified, with costs to defendants, in accordance with the opinion herein, and, as so modified, affirmed. Question certified answered in the negative.
Park v Chessin:
Chief Judge BREITEL and Judge JONES concur with Judge JASEN; Judge FUCHSBERG concurs in a separate opinion in which Judge COOKE concurs; Judge GABRIELLI concurs in part and dissents in part and votes to modify in a memorandum; Judge WACHTLER taking no part.
Order modified, with costs to defendants, in accordance with the opinion herein, and, as so modified, affirmed. Question certified answered in the negative.