Hummel v. Reiss , 129 N.J. 118 ( 1992 )

The opinion of the Court was delivered by

CLIFFORD, J.

Kelly Hummel was born with severe brain defects on October 13, 1971, fifteen months before the United States Supreme Court established a woman’s qualified right to an abortion in Roe v. Wade, 410 US. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). She filed this suit in 1988 against, among others, the physician and the hospital who had failed to provide her mother with the opportunity to obtain a therapeutic abortion. The trial court dismissed her claim and the Appellate Division affirmed. We granted certification, 126 N.J. 386, 599 A.2d 162 (1991).

On this appeal against the hospital only (the physician settled after the Appellate Division decision), plaintiff relies on our decision in Procanik v. Cillo, 97 N.J. 339, 478 A.2d 755 (1984), in which we recognized the wrongful-life cause of action: the right of a child born with birth defects to recover extraordinary medical expenses from a defendant who had negligently failed to inform the child’s parents of the condition that produced those defects and thus had deprived the parents of the right to make an informed decision about whether to continue the pregnancy.

We affirm. We hold that plaintiff’s reliance on Procanik is mistaken and that no wrongful-life cause of action exists for children who were born before Roe v. Wade.

I

In 1971 Judy Hummel was pregnant with her fourth child. Her obstetrician was defendant Dr. Norman Reiss, who had delivered her other children. (She had given birth to twins — a boy and a girl — in 1966, and to a boy in 1970. Those deliveries were by cesarian section. She suffered a miscarriage in 1965). On September 6, 1971, about four months before her January 24, 1972, due date, her amniotic sac ruptured. Dr. Reiss admitted her to St. Michael’s Hospital, from which she was released two days later. She reentered the hospital with slight vaginal bleeding on September 26th and was released on September 28th.

On October 1, 1971, she entered the hospital a third time, suffering from a fever and other symptoms. The next day she delivered a stillborn, macerated fetus. Her symptoms continued, and an abdominal X-ray disclosed that she was carrying a second fetus. The symptoms had resulted from a serious intrauterine infection.

According to Judy Hummel, who testified on oral depositions, Dr. Reiss recommended that she undergo a therapeutic abortion and she told him that she wanted the abortion. (Dr. Reiss insisted, in his deposition testimony, that although a subsequent accident has eradicated his memory of the events, he would not have advised any woman to have even a therapeutic abortion nor would he have performed one. He testified that although evacuation of the uterus might have been appropriate, he would not have undertaken that procedure in such a way as to destroy the fetus.)

Kelly Hummel’s birth on October 13, 1971, was by natural vaginal delivery. She weighed one pound, eleven-and-one-half ounces, and was in severe distress. She suffered psychomotor retardation, is legally blind, and has a mild hearing loss. She will require special care for the rest of her life.

On February 8, 1988, Kelly Hummel, through Judy Hummel as guardian ad litem, filed a complaint in the Law Division, naming as defendants Dr. Reiss, St. Michael’s Hospital, and twenty fictitious defendants. She sought compensation for extraordinary medical expenses and for pain and suffering, on the grounds that the hospital had failed to “permit [sic] Judy Hummel with an abortion option notwithstanding the dangers presented to Kelly Hummel in continuing this pregnancy,” and that Dr. Reiss had “failed to take appropriate steps to arrange proper medical treatment under the circumstances.” The complaint alleged further that defendants had “departed from accepted standards of medical care in their treatment for Kelly Hummel * * *.” She filed an amended complaint on May 5, 1989, that phrased the breach of duty in terms of a duty to “Judy and Kelly Hummel” and added the assertion that defendants had breached a duty by not informing Judy Hummel of her right to be transferred to a hospital that would perform an abortion.

The trial court granted separate motions by Dr. Reiss and the hospital for, respectively, dismissal of the complaint for failure to state a claim on which relief can be granted and for summary judgment. In affirming, the Appellate Division reasoned that although a therapeutic abortion — one that is performed to preserve the mother’s health — was legally available to Judy Hummel, she had not been harmed in any way by the failure to have undergone that procedure, and that a eugenic abortion— one that terminates a pregnancy to avoid the birth of a severely-deformed child — was not legally available in 1971. 247 N.J.Super. 502, 504, 589 A.2d 1041 (1991).

II

The first case in which we addressed a claim by a child based on negligence to its then-pregnant mother was Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967). In Gleitman, the defendant-doctor had failed to inform the child’s mother of the effect that rubella, which she had suffered early in her pregnancy, would have on the fetus. (Rubella, or German measles, is a mild childhood disease that when contracted in the early stages of pregnancy can cause severe damage to the fetus, resulting in devastating birth defects. 5 Lawyers’ Medical Cyclopedia of Personal Injuries and Allied Specialties, § 37.-11a (Charles J. Frankel et al. eds., 5th ed. 1986) (hereinafter Medical Cyclopedia).) Her son was born with severe defects in sight, hearing, and speech. Id. at 24-25, 227 A.2d 689.

The Gleitmans sued both on their own behalf and on behalf of their impaired son. They alleged that had they known that their son might be born so severely impaired, they would have sought other medical advice with a view to the obtaining of an abortion. Id. at 26, 227 A.2d 689. We gave two reasons for deciding that neither the parents nor the infant had stated a’ cognizable claim. First, a damage calculation was impossible because it involved measuring “the difference between [the boy’s] life with defects against the utter void of nonexistence * * Id. at 28, 227 A.2d 689. Second, to prevail, the infant plaintiff would have had to allege that he would have been better off not being born than being bom with his impairments. Ibid. We rejected that premise, concluding that life with defects was better than no life at all. Id. at 30, 227 A.2d 689.

After the Supreme Court’s decision in Roe v. Wade, supra, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, which established a woman’s qualified right to terminate her pregnancy, this Court recognized causes of action of both parents and infants harmed by doctors’ negligence in failing to inform parents of conditions that would bear on informed choice regarding whether to carry the pregnancy to full term. In a trilogy of cases discussed below, we recognized causes of action for wrongful birth (the parents’ claims resulting from the birth of a severely-deformed child) and wrongful life (the child’s claim for having been born with the deformity).

In the first of those cases, Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979), we recognized a cause of action for wrongful birth. That case centered around the defendant-physicians’ failure to advise a thirty-eight-year-old woman to undergo amniocentesis. (Amniocentesis is a procedure in which a long needle is inserted into the uterus to obtain a sample of the amniotic fluid. The procedure can signal the presence of chromosomal abnormalities, including Down’s Syndrome, and of other potential problems. The procedure is considered advisable for women over the age of forty, and many doctors recommend it for women over the age of thirty-five. 5 Medical Cyclopedia, supra, at § 37.5j.) Her child was born with Down’s Syndrome. We held that the parents had a cause of action because the mother had been deprived of the opportunity to choose whether to abort the fetus, id. at 431-32, 404 A.2d 8, but we rejected the infant’s wrongful-life claim because the child had “not suffered any damage cognizable at law by being brought into existence,” id. at 429, 404 A.2d 8.

The parents had requested damages to compensate both for the medical and other costs of raising the child and for emotional distress. Id. at 431, 404 A.2d 8. We rejected the former items of damages because of the benefits the parents would receive from the birth of the child — “the love and joy they will experience as parents” — and because the award of such damages was disproportionate to the doctors’ negligence, giving the parents a windfall and unduly burdening physicians. Id. at 432, 404 A.2d 8.

In the second case, Schroeder v. Perkel, 87 N.J. 53, 432 A.2d 834 (1981), this Court allowed successful wrongful-birth claimants to recover the extraordinary medical expenses of raising their child. Id. at 66-71, 432 A. 2d 834. (The infant plaintiffs had not appealed the trial court’s dismissal of their claims.) The alleged negligence involved a failure to diagnose cystic fibrosis in the Schroeders’ child Ann, thereby depriving them of the choices of whether to conceive a second child and whether to terminate the pregnancy. Cystic fibrosis is an incurable genetically-transmitted disease that causes, among other symptoms, severe respiratory problems and an inability to digest fats. It cannot be detected in a fetus but is easily detected after birth. Cystic-fibrosis victims usually die in their late teens. Id. at 58-59, 432 A.2d 834. When the disease was detected in Ann, Mrs. Schroeder was in her eighth month of pregnancy with a second child, Thomas, who also fell victim to the disease. Id. at 60, 432 A.2d 834.

The trial court denied the defendants' summary-judgment motion directed to the plaintiffs’ demand for extraordinary medical expenses, and the Appellate Division reversed. We

reversed, and held that if the parents prevailed on remand, they would be entitled to compensation for the costs they had incurred as a result of Thomas’s cystic fibrosis. Id. at 70-71, 432 A.2d 834. We distinguished Berman by noting that “Mr. and Mrs. Schroeder will receive no compensating pleasure from incurring extraordinary medical expenses on behalf of Thomas. There is no joy in watching a child suffer and die from cystic fibrosis.” Id. at 69, 432 A.2d 834.

In the third case, Procanik v. Cillo, supra, 97 N.J. 339, 478 A.2d 755, we recognized the child’s cause of action for wrongful life, and held that a child may recover the lifetime extraordinary expenses resulting from a misdiagnosis that deprived its parents of the choice of terminating the pregnancy. We began our analysis by noting that a doctor’s duty to a pregnant woman extends to the infant. Id. at 348-51, 478 A.2d 755. Having decided that, we concluded that the items of wrongful-birth damages we had approved in Schroeder, supra, 87 N.J. 53, 432 A.2d 834, were equally available in wrongful-life claims. 97 N.J. at 351-52, 478 A.2d 755. We concluded that the parents or the child can recover damages for extraordinary expenses incurred while the child was a minor, and that the child is entitled to similar damages during majority. Id. at 352, 478 A.2d 755. We also repudiated the logic that had supported the denial of the wrongful-life cause of action in Gleitman, Berman, and Schroeder:

Our decision to allow the recovery of extraordinary medical expenses is not premised on the concept that non-life is preferable to an impaired life, but is predicated on the needs of the living. We seek only to respond to the call of the living for help in bearing the burden of their affliction.

[Id. at 353, 478 A.2d 755.]

Plaintiff attempts to take the wrongful-life cause of action one step further and apply it to a situation that predates the recognition of the legal right to obtain a eugenic abortion.

Ill

Plaintiff's appeal raises two issues: (1) whether a child born before Roe v. Wade, supra, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, can recover on a claim for wrongful life, and (2) whether the duty to perform a therapeutic abortion extends beyond the mother to include the child. We answer both questions in the negative, and therefore conclude that plaintiffs complaint does not state a claim on which relief can be granted.

In 1971, when Kelly was born, the United States Supreme Court had not yet decided Roe v. Wade, and this Court had not yet recognized a cause of action for wrongful life. The only case in which we had confronted the issue at that time was Gleitman, supra, 49 N.J. 22, 227 A.2d 689. Despite that fact, plaintiff argues that Procanik v. Cillo, supra, 97 N.J. 339, 478 A.2d 755, “directly overruled” the “dated” reasoning of Gleitman, and therefore the trial court erred in basing its dismissal on Gleitman.

However, plaintiff overlooks a critical aspect of Procanik: that case leaves no doubt that its rule — as indeed is the case with Berman and Schroeder — is premised on the availability of lawful eugenic abortions. Therefore, the rule that Procanik established cannot be applicable to cases arising before the United States Supreme Court’s opinion in Roe v. Wade, supra, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147. Although Procanik superseded our refusal in Gleitman to allow an infant to recover for defects caused by a doctor’s malpractice in treating the mother, our reasoning in Procanik does not support plaintiff’s contention that it applies to events predating Roe v. Wade. Neither in Procanik nor in any other case did we expressly overrule Gleitman.

The Court in Procanik recognized the change in the legal landscape during the seventeen years between Gleitman and Procanik. The most significant development in that period was the United States Supreme Court’s holding in Roe v. Wade, which recognized the constitutional right of women “to choose to terminate a pregnancy.” Procanik, supra, 97 N.J. at 346, 478 A.2d 755. In Procanik we acknowledged that “[r]ecognition of that right by the high court subsequently influenced this Court in Berman v. Allan.” Ibid, (citation omitted). Indeed, we based our reasoning in Berman, supra, on the change in law that Roe had wrought: “The Supreme Court’s ruling in Roe v. Wade clearly establishes that a woman possesses a constitutional right to decide whether her fetus should be aborted * * *. Public policy now supports, rather than militates against, the proposition that she not be impermissibly denied a[n] * * * opportunity to make that decision.” 80 N.J. at 431-32, 404 A.2d 8 (citation omitted).

The breaches of duty in Procanik, Berman, and Schroeder all revolve, at least in part, around the defendant-doctor’s failure to diagnose a condition that might have caused the parents to terminate the pregnancy had they been informed of that condition. The wrongful-life and -birth causes of action are, therefore, dependent on a woman’s right to terminate a pregnancy for reasons other than the mother’s health.

Before Roe v. Wade expanded the right to choose, however, women could obtain only therapeutic abortions. Gleitman, supra, 49 N.J. at 31, 227 A.2d 689; accord Planned Parenthood v. State, 75 N.J. 49, 53, 379 A.2d 841 (1977). In Gleitman the Court observed that “[a] child need not be perfect to have a worthwhile life,” 49 N.J. at 30, 227 A.2d 689, and found that “[e]ugenic considerations are not controlling,” ibid., noting that considerations of financial burden to the father and convenience of the mother did not outweigh the child’s right to live, albeit imperfectly. Id. at 30-31, 227 A.2d 689. Moreover, this Court has expressly held that Roe v. Wade is not entitled to retroactive application. See Planned Parenthood v. State, supra, 75 N.J. at 52, 379 A.2d 841.

(We need not resolve in this case whatever dispute remains over whether a therapeutic abortion was available to preserve only the mother’s life or to preserve her health as well. Compare Gleitman, 49 N.J. at 31, 227 A.2d 689 (“The only justification so far held lawful by our courts is preservation of the mother’s life.”) with Hummel v. Reiss, supra, 247 N.J.Super. at 504, 589 A.2d 1041 (therapeutic abortion was available to Judy Hummel “because her health, indeed perhaps her life, was threatened by her complicated pregnancy in 1971”). A decade ago we noted that the right to an abortion to safeguard the health of the mother, like that to preserve her life, is protected under the New Jersey Constitution. See Right to Choose v. Byrne, 91 N.J. 287, 305-07, 450 A.2d 925 (1982).)

In 1971, then, when Kelly Hummel was born, the state of the law was such that the defendants in Berman, Schroeder, and Procanik could not have been liable. Even had the respective doctors diagnosed Down’s Syndrome (Berman), cystic fibrosis (Schroeder), or rubella (Gleitman, Procanik), the parents of the impaired children would have had no recourse: no abortion was legally available to them in New Jersey.

IV

Plaintiff claims that the failure to perform a therapeutic abortion breached a duty to the severely-impaired infant whose birth resulted. We stress that plaintiff concedes that eugenic abortions were not legally available in 1971.

Relying on Procanik, plaintiff asserts that “the right to a therapeutic abortion gave rise to the dual duty to both the mother and the child — even where the birth date was pre-Roe v. Wade.” That claim misreads the dual-duty theory that Procanik, Berman, and Schroeder established, and underestimates the effect that Roe v. Wade had on this area of the law. The significance of the wrongful-life and -birth cases is that the defendant’s breach of duty deprived the mother of the choice to terminate her pregnancy. Judy Hummel had no such choice.

Writing separately in Berman v. Allan, supra, Justice Handler found a duty to the unborn child and thus would have allowed the infant plaintiff to recover under a wrongful-life theory. 80 N.J. at 434, 404 A.2d 8 (Handler, J., concurring in part and dissenting in part). Even so, he based that duty on the legality of eugenic abortions. In discussing the wrongful-birth claim, he noted that since Gleitman the law had changed to drop “the legal barriers to early abortion.” Id. at 436, 404 A.2d 8. Justice Handler noted the importance of Roe v. Wade to wrongful-life analysis even more forcefully in his separate opinion in Procanik, supra: “We should recognize that the wrongful deprivation of the individual choice either to bear or not to bear a handicapped child is a tort — to the infant as well as the parents * * *.” 97 N.J. at 358, 478 A.2d 755 (Handler, J., concurring in part and dissenting in part). No such “individual choice” existed in 1971, however. The only choice was whether to terminate a pregnancy in order to preserve the mother’s health.

To hold that the failure to perform a therapeutic abortion on the mother, Judy Hummel, breached a duty to the child, Kelly Hummel, would contort the law of negligence. An actor has a duty to guard against harm that he or she could reasonably foresee. “If one could not reasonably foresee any injury as the result of one’s act, or if one’s conduct was reasonable in the light of what one could anticipate, there would be no negligence, and no liability.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 43, at 280 (5th ed. 1984) (hereinafter Prosser). Severe birth defects not caused by the defendant-doctor were not, in 1971, a foreseeable injury when the only alternative to birth with those defects was no birth at all. Indeed, the opposite is true: such a birth was not considered to be an injury at all because the law in New Jersey was that any life was better than none. Gleitman, supra, 49 N.J. at 30, 227 A.2d 689.

Furthermore, framing the duty to perform a therapeutic abortion as one to prevent the birth of a handicapped child would fly in the face of criminal law as it existed in 1971. The abortion statute in effect in 1971 provided as follows:

Any person who, maliciously or without lawful justification, with intent to cause or procure the miscarriage of a pregnant woman, administers or prescribes or advises or directs her to take or swallow any poison, drug, medicine or noxious thing, or uses any instrument or means whatever, is guilty of a high misdemeanor.

If as a consequence the woman or child shall die, the offender shall be punished by a fine of not more than $5,000, or by imprisonment for not more than 15 years, or both.

[N.J.S.A. 2A:87-1, repealed by Act effective Sept. 1, 1979, ch. 95, 1978 N.J. Laws 482, 687-88 (codified at N.J.S.A. 2C:98 — 2).]

When we decided Gleitman, the only “lawful justification” for abortion was “preservation of the mother’s life.” 49 N.J. at 31, 227 A.2d 689. All parties agree that that was the law when Kelly Hummel was born in 1971. The doctor’s duty in deciding whether to perform a therapeutic abortion was to the mother, and to the mother alone. Consideration of any other factor could have opened the doctor to criminal sanctions.

Dr. Reiss’s only duty was to protect Judy Hummel’s life. He owed no duty to ensure that Kelly was not born; his only duty to Kelly was to do all in his power to ensure her birth. Judy was gravely ill, perhaps even to the point of being in mortal danger, and a therapeutic abortion most likely would have been within the strictures of the anti-abortion statute. However, no legally-cognizable claim against either the hospital or the physician arises from any failure by Dr. Reiss to perform such an abortion. The harm that a therapeutic abortion would have addressed was Judy Hummel’s death; however, the patient emerged from her hospitalization with her health intact. (Moreover, any claim that Judy might have had against the physician and hospital is time-barred. See N.J.S.A. 2A:14-2.)

To accept Kelly Hummel’s claim that the failure to perform a therapeutic abortion on Judy breached a duty to Kelly would create an inequity. In Gleitman, supra, 49 N.J. 22, 227 A.2d 689, we expressly rejected a wrongful-life cause of action. We continued to reject such claims until our 1984 decision in Procanik, supra, 97 N.J. 339, 478 A.2d 755, and even in that case we recognized the importance of Roe v. Wade to our holding. Therefore, persons born before the decision in Roe are foreclosed from receiving the benefits of such a claim. To allow some of them to benefit from a wrongful-life recovery simply because their mothers’ lives had been sufficiently endangered to warrant consideration of a therapeutic abortion would be an arbitrary denial of relief to equally-damaged persons, based only on a fortuity.

V

Because the rule of Procanik v. Cillo, supra, 97 N.J. 339, 478 A.2d 755, does not apply to cases arising before the Supreme Court’s decision in Roe v. Wade, supra, 410 U.S. 113, 93 S.Ct. 705, 35 L. Ed.2d 147, and because a duty to perform a therapeutic abortion on a mother does not create a duty to abort her child, we conclude that Kelly Hummel has not stated a cause of action on which relief can be granted. Therefore, we affirm the Appellate Division judgment upholding the trial court’s dismissal of the complaint.