PATRICK DRAPER,
Plaintiff-Appellant,
v.
EDWARD A. JASIONOWSKI,
Defendant-Respondent,
and
ST. PETER'S GENERAL HOSPITAL,
ST. PETER'S MEDICAL CENTER,
JOHN VAN MATER AND PIERRE-LOUIS,
Defendants.
________________________________________________________________
Argued September 15, 2004 - Decided October 18, 2004
Before Judges King, Newman and Holston, Jr.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,
Docket No. L-3875-02.
Seamus Boyle argued the cause for appellant.
Jonathan S. Seligman argued the cause for defendant Edward Jasionowski (Buckley & Theroux,
attorneys; Mark A. Petraske, of counsel; Mr. Seligman, on the brief).
The opinion of the court was delivered by
HOLSTON, JR., J.A.D.
The issue on this appeal is one of first impression. We decide there
exists an independent cause of action for an infant, on reaching his majority,
against his mother's obstetrician, for prenatal injuries caused by his vaginal delivery when
the physician failed to obtain his mother's informed consent prior to delivery. We
reverse and remand for trial.
The facts are not in dispute. Plaintiff, Patrick Draper, was born on April
18, 1982 at St. Peter's Hospital in New Brunswick. His mother, Valerie Cissou,
was age twenty at the time of his birth.
Plaintiff was in a "frank breech" position with a large cranial vault while
in his mother's womb. The delivering physician, defendant, Dr. Edward Jasionowski, was aware
of his presentation prior to the delivery. Cissou signed consent forms for both
vaginal and cesarean deliveries. She gave birth to plaintiff by vaginal breech delivery.
Plaintiff alleges defendant neither informed his mother of the option to do a
cesarean section rather than a vaginal delivery, nor left the decision of his
manner of delivery to his mother’s choice. The delivery was complicated by a
torn umbilical cord. According to the medical report of plaintiff's board certified obstetrics
expert, Dr. Richard L. Luciani, plaintiff suffered from anemia, hypoxia and neurological damage,
indicating a tremendous loss of blood secondary to the torn umbilical cord. Plaintiff
was born with bilateral Erb's Palsy, an injury to the shoulders.
Plaintiff asserts that birth by cesarean section would have prevented his bilateral Erb's
Palsy. Plaintiff initiated suit in 2002, twenty years after his birth. Plaintiff alleges
that defendant had a duty to discuss the possibility of a caesarean delivery
with his mother. Because defendant did not inform his mother of the cesarean
section option for delivery, he failed to obtain her informed consent.
Defendant filed a motion for summary judgment on the informed consent issue alone.
Plaintiff cross-moved for summary judgment on the same issue. On December 5, 2003,
the Law Division judge granted defendant's motion for summary judgment and denied plaintiff's
motion. The judge concluded that because a fetus does not have the ability
to consent to a medical procedure, plaintiff could not sustain an independent cause
of action arising out of his mother's alleged failure to consent to the
method of delivery. We granted plaintiff's motion for leave to appeal. R. 2:2-3(b).
This appeal involves a purely legal issue. Because "[a] trial court's interpretation of
the law and the legal consequences that flow from established facts are not
entitled to any special deference," our scope of review is de novo. Manalapan
Realty v. Manalapan Tp. Comm.,
140 N.J. 366, 378 (1995).
Defendant argues that the obligation to disclose the risks and alternatives to obstetric
care runs solely to the mother and not the child. Defendant contends that
plaintiff's informed consent claim is strictly derivative of the mother and time-barred. Defendant
argues that no New Jersey case permits an individual, on his own behalf,
to file a claim for informed consent for a procedure performed on someone
else's body.
Plaintiff argues that New Jersey law recognizes that a doctor owes a duty
to an infant in utero when treating his expectant mother. A doctor who
fails in the duty of securing informed consent violates a duty owed to
both the mother and the child. Plaintiff asserts that his claim is for
his own injuries and is not derivative of any claim of his mother
for her own injuries. The parties have stipulated that any cause of action
which plaintiff's mother may have had is time-barred.
In Smith v. Brennan,
31 N.J. 353 (1960), our Supreme Court recognized a
cause of action on behalf of an infant, born alive, for injuries suffered
in utero. Sean Smith, while in the womb of his mother, was injured
on July 25, 1956 in an automobile accident caused by the defendant's negligence.
He was born about two months later with resulting deformities of his legs
and feet. Defendants moved to dismiss on the ground that New Jersey does
not recognize a cause of action for negligently-inflicted prenatal injuries. Id. at 355.
Our Supreme Court, in overruling Stemmer v. Kline,
128 N.J.L. 455 (E. &
A. 1942), held that a surviving child should have a right of action
in tort for prenatal injuries. The Court found that there was no reason
to deny recovery for a prenatal injury because it occurred before the child
was capable of separate existence. The Court reasoned that medical authority recognizes that
an unborn child is a distinct biological entity and many branches of the
law afford an unborn child protection during various periods of gestation. Brennan, supra,
31 N.J. at 366-67.
Quoting from the dissent in Stemmer v. Kline, it was pointed out there
that medical science has established that the unborn child has its own system
of blood circulation separate from that of the mother, that the unborn's heart
beat is more rapid than the mother's, and that the only dependence by
the child on the mother in utero is for sustenance. Id. at 363.
The Court reasoned that because medical science recognizes that an infant is a
distinct entity before birth, the law recognizes that the rights the child will
enjoy when born cannot be violated before birth. Id. at 364. Therefore, injuries
to the unborn child pertain to the child alone.
The Court stated:
justice requires that . . . a child has a legal right to
begin life with a sound mind and body. If the wrongful conduct of
another interferes with that right, and it can be established . . .
that there is a causal connection between the wrongful interference and the harm
suffered by the child when born, damages for such harm should be recoverable
by the child.
[Id. at 364-65.]
The existence of a viable cause of action on behalf of an infant
for injuries sustained as a result of a physician's failure to adequately inform
his mother of the risks of a medical procedure was established in Niemiera
v. Schneider,
114 N.J. 550 (1989). Gregory Niemiera suffered a disabling convulsive episode
that left him brain damaged when he was age two months. Through his
parents, Gregory alleged that his injuries resulted from an adverse reaction to the
pertussis component of DPT vaccine administered by a nurse under Dr. Schneider's direction.
Id. at 552.
The child developed severe brain damage resulting from acute encephalopathy, which was diagnosed
eight days after the DPT inoculation. Gregory suffered convulsive seizures. As a result
of his nervous system injury, he will have impaired vision and suffer from
cerebral palsy. He will be mentally defective for the rest of his life.
Id. at 553.
When Gregory was age seven, his mother, Joy Niemiera, sued Dr. Schneider for
medical malpractice on his behalf. She alleged that Dr. Schneider failed to warn
of the vaccine's side effects. Id. at 554.
The trial judge granted Dr. Schneider's motion to dismiss Gregory's failure-to-warn claim. The
Supreme Court reversed, finding that as a learned intermediary, Dr. Schneider had a
duty to give proper warning of the dangers or side effects of the
DPT vaccine. The Court determined that the subjective "prudent patient" standard applied to
the duty of informed consent, which Dr. Schneider owed to Gregory's mother. The
purpose of the standard is to convey what information a good mother would
need to know to attend to the health of her child. The parent
of the minor child is the one who must make the informed medical
decision. Id. at 562-63.
The Court stated:
Under the "learned intermediary" doctrine, it is the physician's responsibility to pass on
to the parties the information that enables the patient to use the product
safely. [T]he question was . . . whether the failure to warn the
patient deprived her of the opportunity to avert the medical catastrophe that can
occur . . . . A patient warned of the drug's potential consequences
and the increased susceptibility of patients in certain contraindicated circumstances might have delayed
the shot or responded to the symptoms more aggressively.
[Id. at 565-66.] (footnote omitted).
Plaintiff is required to show only that the warning was inadequate and that
the harm would have been prevented by an adequate warning. Expert testimony established
that Gregory's affliction was not irreversible. Id. at 567. If an adequate warning
had been given of the symptoms that alerted to a dangerous adverse reaction
to the vaccine, aggressive medical treatment could have been sought. Similarly, if his
mother had been warned that convulsive brain disorders were a potential side-effect of
the DPT vaccine, she might have opted to delay the DPT vaccination because
of her child's eye infection.
The Supreme Court recognized the cause of action, which Gregory's mother was asserting
on her son's behalf, in addition to the cause of action asserted on
behalf of herself and her husband. A child of two-months is in no
better position to personally give an informed consent than plaintiff, Patrick Draper, was
in utero. Indeed, a child in any stage of minority would require informed
consent obtained by a parent or guardian before submitting to a medical procedure
or treatment. Clearly, New Jersey law grants a child the right to assert
a cause of action by the parent, as guardian ad litem, if the
parent was not warned by way of informed consent of the dangers of
treatment.
Procanik v. Cillo,
97 N.J. 339 (1984), is also instructive. There, the Supreme
Court approved a cause of action for wrongful birth. The Court declined to
sanction a cause of action for general damages for wrongful life. However, the
Court recognized a wrongful life cause of action, whereby a child may recover
special damages. The Court held that Peter Procanik could recover extraordinary medical expenses
caused by his mother's physician's negligent failure to inform his parents that his
mother had contracted German measles during the first trimester of her pregnancy. The
physician's failure to inform deprived Peter’s mother of the right to make an
informed decision as to whether or not to continue her pregnancy. Id. at
342. Peter Procanik was born with congenital rubella syndrome. Ibid.
As in plaintiff’s case, Peter's parents were time-barred from asserting their own cause
of action. The Court found this of little importance, noting that the "right
to recover the often crushing burden of extraordinary expenses visited by an act
of medical malpractice should not depend on the 'wholly fortuitous circumstance of whether
the parents are available to sue.'" Id. at 352. (quoting Turpin v. Sortini,
643 P.2d 954, 965 (Cal. 1982).
Explaining the rationale for its decision, the Court noted:
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. . .
. When a child requires extraordinary medical care, the financial impact is felt
not just by the parents, but also by the injured child. As a
practical matter, the impact may extend beyond the injured child to his brothers
or sisters."
[Id. at 351.]
The same rationale applies here. The Court in Procanik permitted recovery only for
extraordinary medical expenses, since such damages are "predictable, certain and recoverable." Ibid. The
Court refused to permit a claim for damages for a "diminished childhood," noting
the difficulty in quantifying the damages. Id. at 353. Significantly, the Court expressed
its awareness of "the cost of the extraordinary medical care to the child
or the parents, when combined with the right of the parents to assert
a claim for their own emotional distress, . . . [fulfills] the dual
objectives of a tort system: the compensation of injured parties and the deterrence
of future wrongful conduct." Id. at 355.
By way of dicta, Justice Pashman wrote: "Both causes of action [wrongful life
and wrongful birth] are distinguishable from the situation where negligent injury to a
fetus causes an otherwise normal child to be born in an impaired condition.
See, e.g., Smith v. Brennan,
31 N.J. 353,
157 A.2d 497 (1960); W.
Prosser, Law of Torts § 55 at 335-38 (4th ed. 1971)." Id. at 348.
Thus, the Court acknowledged its continued approval of the viability of a cause
of action of an infant, born alive, for injuries sustained while in the
mother's womb, which the Court earlier recognized in Brennan. Such a cause of
action includes medical malpractice.
Plaintiff alleges that his mother would have opted for delivery by cesarean section
had she been fully informed of the medical dangers. Had he been delivered
by cesarean section, plaintiff contends he would have been born without deformities and
experienced a normal childhood.
Thus, Brennan and Procanik recognize the infant's own cause of action for damages
proximately caused by the negligence of another while in utero. Niemiera recognizes a
cause of action brought by a parent on behalf of an infant for
the infant's own damages based on the inability of the parent to give
informed consent. Procanik reaffirmed judicial recognition of the duty owed by a mother's
obstetrician to her unborn child, as well as to the mother. Unlike Procanik,
however, the judicial comparison here is not between existence and non-existence of life,
but between existence and non-existence of injury. Plaintiff alleges he did not have
to suffer Erb's Palsy. He suffers as a result of his vaginal delivery,
which could have been avoided.
Gregory Niemiera, age two, could not have given informed consent. Similarly, no minor
or incompetent person could bring suit on their own behalf for their own
injuries, on reaching majority, or on return to competency, as a result of
the violation of the duty of informed consent, if the law were to
bar such an action because the informed consent could only be given to
a parent or guardian. No sound public policy reason exists for such a
restriction. The law of this State recognizes the viability of such a cause
of action.
Other states have specifically recognized a child's right to recover for injuries suffered
as a result of the failure to offer a child's mother a cesarean
section. In Schreiber v. Physicians Ins. Co. of Wisconsin,
588 N.W.2d 26
(Wis.), cert. denied,
528 U.S. 869,
120 S. Ct. 169,
145 L. Ed. 2d 143 (1999), the court upheld a claim by a minor child for
injuries suffered when her physician did not offer to her mother the option
of a cesarean section. Similarly, in Campbell v. Pitt County Mem'l Hosp., Inc.,
352 S.E.2d 902 (N.C. App.), aff'd,
362 S.E.2d 273 (1987), the claim of
an injured child for damages incurred when defendant failed to obtain her mother's
informed consent prior to performing a vaginal delivery was upheld. The jury had
specifically found a lack of traditional negligence against the defendant but did find
that the defendant had failed to obtain plaintiff's mother's informed consent. Likewise, in
Randall v. United States,
859 F. Supp. 22 (D.C. Dist. 1994), the court
found that plaintiff had not met the burden of proof by demonstrating a
failure to perform a cesarean delivery constituted malpractice. However, the court found for
plaintiff and allowed a claim for pain and suffering on behalf of the
infant-child where the physicians had not obtained the plaintiff's mother's informed consent to
vaginal delivery.
In Harrison v. United States,
284 F.3d 293 (1st Cir. 2002), the Court
of Appeals reversed the District Court's finding that a physician had no duty
to afford an expectant mother the opportunity to have a cesarean section. Applying
Massachusetts law, the court found that if a risk to the baby or
a risk to the mother is material to the patient-mother's decision, the doctor
has a duty to disclose that risk. The court noted:
The patient's opportunity to perform this balancing may assume particular importance when the
patient is a mother giving birth. In such a case, the mother may
purposefully discount risks to herself in order to choose a treatment or procedure
that will present the least risk to her newborn child. While the treating
physician will undoubtedly feel the need to balance the welfare of mother and
child, the mother may consider her baby's health as the paramount concern. See
Statement by American Medical Association on Forced Cesarean Section Court Case in Chicago,
U.S. Newswire, December 15, 1993, available at 1
993 WL 7132850 (opining that in
cases where there is a "trade-off" between the health of the mother and
the child, "pregnant women routinely choose" and "should" choose a cesarean section "for
the benefit of their fetuses," even though the risk to the woman is
higher than from a vaginal delivery).
[Id. at 301 n.7.]
On remand, the District Court awarded $250,000 in damages to the child who
had sustained Erb's Palsy as a result of the obstetrician's breach of the
duty of informed consent to the mother. The court there noted that any
comparative negligence on the part of the mother was irrelevant to an assessment
of damages, as the child, not the mother, was the plaintiff in the
action, and the parent's negligence may not be imputed to her child. Harrison
v. United States,
233 F. Supp. 2d 128 (D. Mass. 2002).
No case has been presented from any jurisdiction which precludes a child's claim
for birth injuries suffered as a result of a pre-birth violation of the
duty of informed choice and consent. Hughson v. St. Francis Hosp. of Port
Jervis,
459 N.Y.S.2d 814 (App. Div. 1983), addressed the precise issue before
us. The court held that an independent cause of action on behalf of
an infant may be sustained against a physician for prenatal injuries due to
the physician's alleged failure to obtain the informed consent of the mother. Id.
at 815. As here, the appeal in Hughson arose from a dismissal of
the complaint. Ibid. The pleadings were devoid of any facts concerning the nature
of the infant's injuries, although it was clear plaintiff's mother was time-barred from
asserting her own claim. Id. at 816.
The court assumed that damages could be readily ascertained and that causation existed.
Id. at 815. Defendant's duty to the infant was the sole issue. Defendant
argued that the "obligation to disclose the risks and alternatives of obstetric care
runs to the mother," and since she must consent for both her and
the child, the child's cause of action must be "derivative" of the mother's
time-barred cause of action. Ibid. Rejecting this argument, the Hughson court found the
infant's cause of action to be "viable and independent." Id. at 817. Significantly,
the court noted that "it is now beyond dispute that in the case
of negligence resulting in prenatal injuries, both the mother and the child in
utero may each be directly injured and are each owed a duty, independent
of the other." Id. at 816. (emphasis added). Plaintiffs cannot be denied protection
against incompetent medical advice or treatment simply because they are incapable of giving
legal consent. Id. at 817. The court found further support for its holding
in the recognition by the New York Legislature that an infant in utero
is as much a "patient" as the expectant mother. Ibid.
Addressing public policy concerns, the court observed that denying relief to the infant-patient
would be tantamount to ignoring "the realities of modern obstetrical practice" by denying
the in utero infant "independent protection against incompetent medical advice." Id. at 818.
Indeed, since the failure to disclose risks and alternatives to the mother may
result in "direct physical injury to the fetus alone," the court found it
necessary that the infant be able to sustain an independent cause of action.
Ibid. To illustrate the potentially detrimental results of a contrary holding, the court
pointed to the Thalidomide litigation, where mothers who used the drug were not
affected but the consequences to their children were devastating. Ibid. Denying relief to
the children in those cases, for example, would have been grossly unfair.
Defendant in the case before us asserted that the decision of whether to
perform a caesarean section is a medical judgment, not an option for the
patient, and consequently, he was not required to obtain plaintiff's mother's informed consent
regarding the method of delivery. If this were true, plaintiff's informed consent claim
would be moot. The flaw in defendant's reasoning, is that, regardless of how
the decision to perform a caesarean is made, any birthing method is an
"invasion" of the mother's body which gives her the right to refuse treatment.
See Matthies v. Mastromonaco,
160 N.J. 26, 34 (1999) (noting the informed consent
doctrine is derived from the patient's "right of self-determination"). Defendant's charac-terization of such
a judgment as entirely within his discretion is inaccurate.
We hold that New Jersey recognizes an independent cause of action on behalf
of an infant, on reaching majority, against the child's mother's obstetrician, for prenatal
injuries caused by the child's vaginal delivery, arising out of the failure of
the physician to obtain the child's mother's informed consent, prior to the child's
delivery.
The judgment of the Law Division granting summary judgment to the defendant is
reversed. The informed consent claim is remanded to the Law Division for trial.
Reversed and remanded.