Howard v. Lecher

Titone, J. In this medical malpractice action the Special Term denied the defendant’s motion to dismiss the first cause of action in which the plaintiffs allege that they suffered mental distress and emotional disturbances as a result of their infant daughter being afflicted with, and eventually dying of, Tay-Sachs, a fatal genetic disease. The defendant, an obstetrician and gynecologist, first treated plaintiff Laura Howard in March, 1968, and continued to treat her for two pregnancies, through February, 1973. With respect to the child Melisa who eventually died of the disease, the defendant treated and rendered medical services [422] to the mother from December, 1971 until the dáte the child was born with the disease, August 21, 1972, and also for a short period thereafter. The child succumbed to the disease on June 26, 1974. Both in the first cause of action asserted in the plaintiffs’ complaint, and in their bill of particulars, they allege that the defendant knew or should have known that, being of Eastern European background, they were potential carriers of TaySachs, and that tests were available both to determine whether they were carriers, and also whether the fetus was afflicted with it. It is further alleged that the defendant was negligent in the treatment of the mother in that he failed, inter alia, either to take a proper (genealogical) history of the plaintiffs or to properly evaluate the history that he did take, and that he also failed to advise them of the possibility of the taking of tests of them and of the fetus with regard to the disease. According to the plaintiffs, had they been advised that the fetus had Tay-Sachs, they would have terminated the wife’s pregnancy by means of a legal abortion. Not challenged on appeal is a second cause of action in which the plaintiffs seek damages for moneys expended by them in connection with the child’s medical, hospital, nursing and funeral expenses. Thus, the sole issue presented on appeal is whether, under the facts alleged in the first cause of action, damages are recoverable for any emotional harm sustained by the plaintiff parents. The Special Term held that such damages are recoverable in this State. We disagree, and reverse the order under review and grant the motion to dismiss the plaintiffs’ first cause of action. In its decision, the Special Term cited Johnson v State of New York (37 NY2d 378), in support of its conclusion that the claim for emotional distress is viable. In Johnson, the daughter of a patient in a State hospital received a telegram from the institution which falsely stated that her mother had died. In holding that the daughter could recover for any emotional harm resulting from such mistake, the Court of Appeals pointed out, inter alia, that she was not indirectly harmed by an injury caused to another, as in Tobin v Grossman (24 NY2d 609), but instead, she was the one to whom a duty was directly owed by the hospital, and the one who was directly injured by the breach of that duty. The same court had earlier held in Tobin (supra) that no cause of action lies for an unintended harm sustained by one solely as the result of injuries inflicted [423] upon another, regardless of the relationship and whether such one was an eyewitness to the accident which resulted in the direct injuries to the third person. In Tobin the mother of a child struck by a motor vehicle unsuccessfully sought damages from the tort-feasor for her own mental and physical injuries caused by shock and fear for the child, who suffered serious injuries as a result of the accident. After a close reading of both Johnson and Tobin in tandem, we are constrained to the view that the law in this State is that in order for a claimant to recover damages for emotional harm, not only must there be a duty owed the claimant by the tort-feasor, but also the claimant must be the person who is directly injured by the tort-feasor’s breach of that duty. While in this case the defendant may or may not have treated the plaintiff wife, or advised her and the plaintiff husband according to accepted medical standards of his profession, the fact is that the injury from which their alleged emotional harm stemmed was suffered by the child. The risk of indirect harm from the loss or injury of loved ones is pervasive and inevitably realized at one time or another. Only a very small part of that risk is brought about by the culpable acts of others. This is the risk of living and bearing children. It is enough that the law establishes liability to those directly or intentionally harmed (Tobin v Grossman, supra, p 619; cf. Hair v County of Monterey, 45 Cal App 3d 538). Furthermore, in a similar case (Stewart v Long Is. Coll. Hosp., 35 AD2d 531), this court dismissed a cause of action seeking relief identical to that sought by the plaintiffs herein in their first cause of action. In Stewart, the mother had, during the pregnancy, contracted rubella, as a result of which her child was born malformed. The infant plaintiff sued the defendant hospital for its failure to abort her mother and thus terminate her life. The parents also sued, alleging that they had been made to suffer physical pain and mental anguish by virtue of the defendant’s failure to perform an abortion. This court, in setting aside a verdict in favor of the parents, stated that the cause of action asserted by the parents, like that of the child, was not one previously known to the law, and, as such, should await legislative sanction and should not be accepted by judicial fiat, citing, inter alia, Tobin v Grossman (supra). Our determination was subsequently affirmed by the Court of Appeals (30 NY2d 695). Assuming that the legalization of abortion within 24 weeks from the commencement of a [424] pregnancy (see Penal Law, § 125.05, subd 3) does give rise to a cause of action for the failure of a physician to inform the parents, inter alia, of the fatal consequences to a child born with Tay-Sachs disease, a claim for emotional harm such as that presented here should fail for lack of provable damages. Suits seeking recovery of damages due solely to the existence of life, or "wrongful life”, rather than no life, have not met favor with the courts (see, e.g., Rieck v Medical Protective Co., 64 Wis 2d 514; Williams v State of New York, 18 NY2d 481; Aronoff v Snider, 292 So 2d 418 [Fla]; 22 ALR3d 1441, 1443). This is especially true where the claimant seeks damages for emotional distress or harm resulting from a "wrongful birth” (see Stewart v Long Is. Coll. Hosp., supra; Gleitman v Cosgrove, 49 NJ 22; Jacobs v Theimer, 519 SW2d 846 [Tex]). In order to determine the parents’ compensatory damages herein, a court would have to evaluate the denial to them of the intangible, unmeasurable and complex human benefits of motherhood and fatherhood and weigh these against the alleged emotional injuries. When the parents say that the child should not have been born, they make it impossible for a court to measure their damages in being the mother and father of a defective child (see Gleitman v Cosgrove, supra; Jacobs v Theimer, supra). To elaborate upon what this court stated in Stewart v Long Is. Coll. Hosp. (supra, p 532), it is virtually impossible to evaluate as compensatory damages the anguish to the parents of rearing either a malformed child, or a child born with a fatal disease, as against the denial to them of the benefits of parenthood. Damages which are uncertain, contingent or speculative in their nature, cannot be made the basis of a recovery (25 CJS, Damages, § 26). In addition, recognition of the claim for emotional harm herein would, in my opinion, constitute an unwarranted and dangerous extension of malpractice liability. Under the plaintiffs’ theory as to what the law should be, an obstetrician in our ever-expanding heterogeneous and pluralistic society would have an absolute duty to conduct an exhaustive genealogical profile of both parents in order for him to counsel them as to the wisdom of the wife obtaining an abortion. If such should be the law today, then it might follow that tomorrow courts would require a physician to advise parents when extraordinary means of sustaining the vital processes of their child should be terminated (see Matter of Quinlan, 70 NJ 10). Unavoidably, the claim for damages for emotional harm in [425] this case raises questions of public policy. In my opinion allowance of recovery would place an unreasonable burden upon physicians and obstetricians. It would either open the way for fraudulent claims or enter a field that has no sensible or just stopping point.* Actually, it is a cause based on an after-the-event contingency which plaintiffs make operable by the operations of their minds (cf. Rieck v Medical Protective Co., 64 Wis 2d 415, supra). Footnotes [*] An illustration of the lengths to which causes of action arising out of "wrongful birth” may reach if such theory is ever adopted by the courts is set forth in Cox v Stretton (77 Misc 2d 155, 156). In Cox the wife became pregnant and bore a child subsequent to the performance by the defendant physician of a vasectomy upon her husband. In the action charging the physician with malpractice, a cause of action was interposed on behalf of the two other children of the marriage. It was alleged therein that, as a result of the physician’s malpractice, each of the two other children had been and would be deprived "of a portion of the care, affection, training and financial support each would have received except for the birth of their unplanned brother” (supra, p 156).