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Proving Liability in a Medical Malpractice Case

By:
E. Drew Britcher, Esq.
Jessica E. Choper, Esq.
Britcher Leone, LLC
Standard of Care.

Negligence is conduct which falls below a standard recognized by the law as essential to the protection of others from unreasonable risks of harm. Sanzari v. Rosenfeld, 34 N.J. 128, 134 (1961). In the ordinary dental or medical malpractice case, the jury is not competent to supply the standard by which to measure the defendant's conduct because it lacks the technical training to determine the applicable standard of care and whether the defendant's conduct was unreasonable under the circumstances. Sanzari, 34 N.J. at 134-135. The standard of care to which the defendant failed to adhere must be established by expert testimony. If plaintiff fails to advance expert testimony establishing an accepted standard of care, a dismissal at the close of plaintiff's case is proper. Id., at 135.

To establish a prima facie case of negligence in a medical malpractice action, a plaintiff must usually present expert testimony to establish the relevant standard of care, the doctor's breach of that standard, and a causal connection between the breach and the plaintiff's injuries. Chin v. St. Barnabus Med. Ctr., 160 N.J. 454, 469 (1999); Rosenberg v. Tavorath, 352 N.J. Super. 385 (App. Div. 2002). In the treatment of a patient, a physician has a duty to exercise the degree of care, knowledge and skill ordinarily possessed and exercised in similar situations by the average member of the profession practicing in his or her field. Schueler v. Strelinger, 43 N.J. 330, 344 (1964); Rosenberg, 352 N.J. Super. at 399-400. Absent competent expert proof of these three elements, the case is not sufficient for determination by the jury. Sanzari, 34 N.J. at 134-135; Parker v. Goldstein, 78 N.J. Super. 472, 484 (App. Div.) certif. denied, 40 N.J. 225 (1963).

With respect to a physician's competency to testify as an expert in a malpractice case, his or her license to practice imports some general competency to testify on all medical subjects. Carbone v. Warbuton, 11 N.J 418, 424-25 (1953); Rosenberg, 352 N.J. Super. at 400. A witness may be qualified to testify as an expert either by study without practice or by practice without study. State v. Chatman, 156 N.J. Super. 35, 41 (App. Div.), (quoting State v. Smith, 21 N.J. 326, 334 (1956), certif. denied, 79 N.J. 467 (1978), quoted in Rosenberg, 352 N.J. Super. at 400. The requisite knowledge can be based on either knowledge, training or experience. Rosenberg, 352 N.J. Super. at 403. It is not necessary that the expert have personal experience with the situation under investigation to testify to the applicable standard of care. An expert's knowledge may derive from observations of the methods used by members of the profession or from study of professional treatises and journals. Sanzari, 34 N.J. at 137. The test of whether a particular witness is competent to testify as an expert is whether the witness has sufficient knowledge of professional standards applicable to the situation under investigation to justify his expression of an opinion relative thereto. Carbone, 11 N.J. at 425; Sanzari, 34 N.J. at 136.

A finding that an expert is qualified as an expert means only that the witness' education and experience qualify him to offer an expert opinion if that opinion is based on reasonable medical certainty or probability. Schrantz v. Luancing, 218 N.J. Super. 434, 438 (Law Div. 1986). The expert testimony must relate to generally accepted medical standards, a standard that is higher than the personal opinion of the expert witness. Fernandez v. Baruch, 52 N.J. 127, 131 (1968). Medical opinion testimony must be couched in terms of reasonable medical certainty or probability. Opinions as to possibility are inadmissible. Johnesee v. Stop & Shop Cos. Inc., 174 N.J. Super. 426, 431 (App. Div. 1980); Vitrano by Vitrano v. Schiffman, 305 N.J. Super. 572, 581 (App. Div. 1997). Reasonable medical certainty or probability refers to the general consensus of recognized medical thought and opinion concerning the probabilities of conditions in the future based on present conditions. Schrantz, 218 N.J. Super. at 439. A medical expert is not required to state that there was a deviation from professional standards to a reasonable medical probability. Bondi v. Pole, 246 N.J. Super. 236, 240 (App. Div. 1991). The causal connection between the deviation and the patient's injuries is what must be expressed in terms of reasonable medical probability. The Supreme Court has stated that:

A plaintiff who charges a deviation from such standard of skill or care must assume the burden of establishing facts showing not only the deviation but also a fact equally essential to recovery of damages, i.e., that the deviation was the reasonably probable cause of the injurious condition arising thereafter. If the proof adduced at trial simply shows a number of possible causes, only one of which could be charged to the dentist's lack of due care, for the presence of the factor which eventuated in injury the issue of the dentist's responsibility cannot be submitted to the jury for determination. To do so would be to authorize a decision on the basis of conjecture or speculation. It is only when there are circumstances present from which a reasonable man could find that the dentist's want of due care was more likely the probable cause that the issue of liability must go to the jury for determination. Germann v. Matriss, 55 N.J. 193, 208 (1970).

Plaintiffs should also be aware of the Supreme Court's decision in Gardner v. Pawliw, 150 N.J. 359 (1997). In Gardner, plaintiff alleged that her treating obstetricians negligently failed to perform certain diagnostic tests and that such failure increased the risk of a preexistent condition that ultimately resulted in the premature birth and death of her child. In such cases, the failure to perform a test can eliminate a source of proof that is necessary to enable a medical expert to testify to a degree of reasonable medical probability concerning what might have occurred had the test been performed. Gardner, 150 N.J. at 380, quoted in Reynolds, 172 N.J.at 289. Concerned that the failure to perform required tests could shield a defendant from liability by preventing the plaintiff from presenting proofs to the jury, the Supreme Court held that: in cases where the prevailing standard of care indicated that a diagnostic test should have been performed and it was a deviation not to perform the test, but it is also unknown whether the test would have helped to diagnose or treat the preexistent condition, the first prong of the Scafidi increased risk test would be satisfied if the plaintiff demonstrated to a reasonable degree of medical probability that the failure to perform the test increased the risk of harm from the preexistent condition. Id. at 387. We noted that a plaintiff may demonstrate an increased risk even if the test would have been helpful in just a small proportion of cases. Reynolds, 172 N.J. at 290.

In Greene v. Memorial Hosp., 304 N.J. Super. 416 (App. Div. 1997), the Appellate Division was ordered by the Supreme Court on remand to reconsider its decision in light of Gardner v. Pawliw, 150 N.J. 359 (1997). In Greene, plaintiff's expert testified that defendant deviated from accepted standards by failing to examine deceased after being apprised that the patient's vital signs had changed and that her respiratory rate had increased. The expert testified that decedent should have been placed on a heart monitor and oxygen administered. The trial court dismissed plaintiff's case because it found that there was an absence of medical evidence presented for the jury to reasonably find that defendant's negligence increased the risk of harm caused by decedent's preexisting condition or that such increased risk constituted a substantial factor in producing the ultimate harm. Greene, 304 N.J. Super. at 417-418. The Appellate Division affirmed, Greene v. Memorial Hosp. of Burlington County, 299 N.J. Super. 372 (App. Div. 1997), and subsequently the Supreme Court rendered its decision in Gardner, supra.

On remand, the Appellate Division characterized plaintiff's expert testimony as "disjointed and confusing" but was impressed with the expert's answer to whether he had an "opinion to a reasonable degree of medical probability...as to whether the failure to provide the treatment...described deprived this child of an opportunity for continue[d] life?" Greene, 304 N.J. Super. at 420. According to the expert "had these measures been carried out I believe they would have afforded the child a more higher percentage of survival potential than there were in the fact that they were not carried out." Id., at 420.

On remand, the Appellate Division held that the trial court erred in striking the witness' answer because it was not based on medical certainty and that the question of proximate cause should have been submitted to the jury. Id. The court found that a jury could reasonably find that defendant deviated from accepted standards and that the malpractice increased the risk of harm from the preexistent condition. Id. The court's ruling reflected the Gardner court's response to the difficulties a plaintiff encounters where a physician deviates from the standard of care by failing to perform a diagnostic test which in turn may eliminate a source of proof necessary to enable a medical expert to testify to a degree of reasonable medical probability concerning what might have occurred had the test been performed. As stated by the Appellate Division, "where it is a deviation not to perform a diagnostic test, but it is unknown whether the test results would have helped to diagnose or treat a preexisting condition, the plaintiff is not required to demonstrate to a reasonable medical probability that the test would have resulted in avoiding the harm." Greene, 304 N.J. Super. at 418.

Even if a plaintiff is able to make a prima facie case of medical malpractice to get to trial, plaintiff may still face a dismissal if his expert's opinion is nullified during the trial. An expert's opinions may be nullified on cross-examination, leaving plaintiff without the requisite proof of deviation from the standard of care and a causal link between the deviation and the injuries. In Ritondo by Ritondo v. Pekala, 275 N.J. Super. 109 (App. Div. 1994), the Appellate Division approved of the holding of the Kentucky court which found that the value of testimony given by a witness on direct examination may be entirely nullified by admissions on cross-examination. According to the court, where a witness on cross-examination gives clear and unequivocal testimony that is inconsistent and contradictory of what he testified to on direct examination the force of the first statement may be destroyed. Spencer v. City Taxi Service, Inc., 439 S.W.2d 74, 75 (Ky. 1969), quoted in Ritondo by Ritondo, 275 N.J. Super. at 116.

Net Opinions
A defendant may be able to successfully dismiss a plaintiff's medical malpractice action if the court deems that the expert's opinion constitutes a net opinion. A net opinion is an expert opinion that is inadmissible at trial because it is a bare expression of conclusions unsupported by factual evidence. Kisselbach v. County of Camden, 271 N.J. Super. 558, 568 (App. Div. 1994). Expert testimony based merely on unfounded speculation and unquantified possibilities will be excluded under the net opinion rule. Vuocolo v. Diamond Shamrock Chem., 240 N.J. Super. 289, 300 (App. Div. 1990). N.J.R.E. 703 requires that an expert's opinion be based on facts, data, or another expert's opinion, either perceived by or made known to the expert, at or before trial. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981); Nguyen v. Tama, 298 N.J. Super. 41, 48-49 (App. Div. 1997); Rosenberg, 352 N.J. Super. at 401. The net opinion rule mandates that an opinion lacking in foundation and consisting of bare conclusions unsupported by factual evidence is inadmissible. Johnson v. Salem Corp., 97 N.J. 78, 91 (1984); Buckelew, 87 N.J. at 524. The net opinion rule requires an expert to give the why and wherefore of his or her opinion rather than a mere conclusion. Jiminez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996).

The rule frequently focuses on the failure of an expert to explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting there from. Buckelew, 87 N.J. at 524; Vitrano by Vitrano, 305 N.J. Super. at 579. The failure of an expert to give weight to a factor thought important by an adverse party does not reduce the expert's testimony to an inadmissible net opinion if the expert otherwise offers sufficient reasons which logically support the opinion. State v. Freeman, 223 N.J. Super. 92, 115-16 (App. Div. 1988), certif. denied, 114 N.J. 525 (1989); Rosenberg, 352 N.J. Super. at 402. The omission merely becomes a proper A subject of exploration and cross-examination at a trial. Rubanick v. Witco Chem. Corp., 242 N.J. Super. 36, 55 (App. Div. 1990), modified on other grounds, 125 N.J. 421 (1991), quoted in Rosenberg, 352 N.J. Super. at 402.

Common Knowledge, Res Ipsa Loquitur & Anderson v. Somberg
Common Knowledge Doctrine

Ordinarily, in medical malpractice cases, evidence of a deviation from accepted medical standards must be provided by competent and qualified physicians. The common knowledge doctrine is an exception to the ordinary rule. When the common knowledge doctrine applies, expert testimony is not necessary to establish the applicable standard of care. Chin, 160 N.J. at 469. If the common knowledge doctrine applies, the absence of expert testimony is not invariably fatal to a medical malpractice action if there is other testimony from which the jury can determine the applicable standard of care and whether it was violated. Jenoff v. Gleason, 215 N.J. Super. 349, 357-358 (App. Div. 1987), quoted in Lucia v. Monmouth Medical Center, 341 N.J. Super. 95, 103-104 (App. Div. 2001), certif. denied, 170 N.J. 205 (2001). The common knowledge doctrine applies only in those cases where the common knowledge and experience of lay persons would enable a jury to conclude without expert testimony that a standard of care applied and was breached, meaning that the mistake was obviously the result of negligence. Lucia, 341 N.J. Super. at 104. It is ordinarily applied in a malpractice case after the plaintiff has proved his injury and a causally related act or omission by the defendant. Under such circumstances, the jury is allowed to supply the applicable standard of care and obviate the necessity for expert testimony relative thereto. Sanzari, 34 N.J. at 141.

As illustrated in Lucia, 341 N.J. Super. at 104, the common knowledge doctrine has been applied in the following cases: Chin, 160 N.J. at 470 (holding that doctrine applied where patient's death was caused by incorrect hook-up of hysteroscope which introduced gas into bloodstream causing fatal embolism); Magner v. Beth Israel Hosp., 120 N.J. Super. 529, 534 (App. Div. 1972), certif. denied, 62 N.J. 199 (1973) (holding that doctrine applied where patient was burned in flash fire when spark from cauterizing tool ignited alcohol which surgeon had applied to patient's skin); Becker v. Eisenstodt, 60 N.J. Super. 240, 246-47 (App. Div. 1960) (holding that doctrine applied where rhinoplasty patient's nose and upper lip were severely burned and disfigured by nostril pledget apparently soaked in a caustic liquid rather than anesthetic solution before insertion by a physician); Steinke v. Bell, 32 N.J. Super. 67, 69-70 (App. Div. 1954) (holding that doctrine applied where dentist engaged to remove patient's lower left molar also extracted or caused removal of her upper right lateral incisor).

The common knowledge doctrine is appropriately applied to a case when the experience possessed by lay persons, without the explanations of experts, would enable a jury to determine that a defendant acted without reasonable care. Chin, 160 N.J. at 470. According to the Supreme Court, the Abasic postulate for application of the doctrine therefore is that the issue of negligence is not related to technical matters peculiarly within the knowledge of medical or dental practitioners.@ Sanzari, 34 N.J. at 142, quoted in Chin, 160 N.J. at 470.

The fact, however, that a plaintiff may intend to establish liability against a licensed person under the common knowledge or res ipsa loquitur doctrine without the use of expert testimony does not mean that a plaintiff can ignore the requirements of the affidavit of merit statute. Hubbard v. Reed, 331 N.J. Super. 283, 297 (App. Div. 2000). The affidavit of merit statute is a filter designed to prevent meritless or frivolous claims. Darwin v. Gooberman, 339 N.J. Super. 467, 480 (App. Div. 2001).

In Hubbard, the defendant dentist moved for summary judgment on the basis of plaintiff's failure to file an affidavit of merit. Plaintiff opposed the motion on the ground that since no expert was required to establish liability because of the common knowledge doctrine, an affidavit of merit was not required. According to the Appellate Division, the clear statutory requirement of N.J.S.A. 2A:53A-27 is that an affidavit of merit is required in all malpractice cases regardless of the method of proving the claim. Hubbard, 331 N.J. Super. at 291. According to the court, the fact that a plaintiff intends to prove his or her claim without the benefit of expert testimony does not abrogate the legislative policy choice of meeting a threshold of merit in the early stage of the litigation. Id., at 292; See also, Darwin, 339 N.J. Super. at 477 (The specific language used by the Legislature compels the conclusion that the affidavit of merit statute applies to common knowledge cases, and the legislative purpose of the statute compels a similar result).

Res Ipsa Loquitor

Expert medical testimony is not necessary to establish the appropriate professional standards of care when the doctrines of res ipsa loquitur or common knowledge apply. Both doctrines represent an exception to the general rule that requires that in the ordinary medical malpractice case, the standard of practice to which the defendant failed to adhere must be established by expert testimony. Kelly v. Berlin, 300 N.J. Super. 256, 264-265 (App. Div. 1997). In res ipsa loquitur cases the plaintiff needs only to prove his injury and not prove a standard of care or a specific act or omission. Sanzari, 34 N.J. at 141. The res ipsa loquitur doctrine applies where:

(a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect.

Buckelew v. Grossbard, 87 N.J.at 525 (quoting Bornstein v.Metropolitan Bottling Co., 26 N.J. 263, 269, (1958), quoted in Kelly, 300 N.J. Super. at 265.

The res ipsa loquitur doctrine applies when it is reasonable to say that under the circumstances, the injury to the plaintiff would not have occurred in the absence of the defendant's negligence. The plaintiff is permitted to establish a prima facie case of negligence by proof of his injury and the surrounding circumstances; he does not have to prove a specific act or omission by the defendant or an applicable standard of care. Sanzari, 34 N.J. at 141. The plaintiff is not required to eliminate with certainty all other possible causes or inferences. "All that is needed is evidence from which reasonable persons can say that on the whole it is more likely than not that there was negligence associated with the cause of the event than that there was not." W. Page Keeton et. al., Prosser and Keeton on the Law of Torts, Section 39 at 248 (5th ed. 1984), quoted in Roper, 309 N.J. Super. at 231-232.

Unlike the common knowledge doctrine, res ipsa loquitur requires expert testimony "to the effect that the medical community recognizes that an event does not ordinarily occur in the absence of negligence." Buckelew, 87 N.J. at 527, quoted in Roper v. Blumenfeld, 309 N.J. Super. 219, 230 (App. Div. 1998). There must be some evidential support, experiential or the like, offered for the expert's conclusion that the medical community recognized that the mishap in question would not have occurred but for the physician's negligence. The res ipsa loquitur doctrine is not permitted if the evidence shows that there is no basis for an expert's opinion other than a flat-out statement designed to satisfy the >common knowledge' test. Id., at 529.

In some instances, a conditional res ipsa loquitur charge may be appropriate. The charge would include a blended charge on medical malpractice and res ipsa loquitur. The Appellate Division has held that "[i]f evidence presents a factual issue as to how an accident occurred, and the res ipsa loquitur doctrine would be applicable under only one version of the accident, the court should give a 'conditional' res ipsa loquitur instruction, under which the jury is directed first to decide how the accident happened and to consider res ipsa loquitur only if it finds that the accident occurred in a manner which fits the doctrine." Allendorf v. Kaiserman Enters., 266 N.J. Super. 662, 669 (App. Div. 1993), quoted in Roper, 309 N.J. Super. at 232.

The court in Roper ruled that a conditional res ipsa loquitur charge was warranted under the circumstances of the dental malpractice case. In Roper, plaintiff's expert testified that nerve injury in the course of an attempted tooth extraction such as the one performed by defendant was medically unacceptable and that it was an occurrence which bespeaks negligence. Defendant disputed plaintiff's factual assertions concerning the onset of her numbness as well as the contention that nerve injury was not an expected risk of the tooth extraction. The court held that a conditional res ipsa loquitur charge should have been given because if the jury accepted plaintiff's evidence, res ipsa loquitur would apply. Roper, 309 N.J. Super. at 232. The expert's opinion essentially stated that the injury established the deviation. Under a conditional res ipsa loquitur charge, the jury should have been told that if it believed that the onset of plaintiff's numbness began with the defendant's procedures and if it believed that the risk of damage to the nerve was not a normal risk inherent in the procedure, then it could infer that the defendant deviated from accepted standard of care. Id., at 234.

Res ipsa loquitur is grounded in probability and the sound procedural policy of placing the duty of producing evidence on the party who has superior knowledge or opportunity for explanation of the causative circumstances. The effect of the doctrine is to establish a prima facie case by permitting the jury to infer negligence. The inference is a permissive one that the jury is free to accept or reject. Kelly, 300 N.J. at 265; Buckelew, 87 N.J. at 526. A defendant may offer contrary expert testimony to persuade the jury not to draw the inference permitted by the rule. Id., at 528. The rule does not shift the burden of persuasion and the most that is required of defendant is explanation, not exculpation. Id., at 526.

Anderson v. Somberg

Another exception to the usual allocation of burdens of proof in a medical malpractice case is set forth in the court' decision in Anderson v. Somberg, 67 N.J. 291, cert. denied, 423 U.S. 929, 96 S.Ct. 279, 46 L.Ed.2d 258 (1975), discussed in detail by the Supreme Court in Chin, supra. In Chin, the Supreme Court disapproved of the holding in Maciag v. Strato Medical Corp., 274 N.J. Super. 447 (App. Div. 1994), and held that if the Anderson doctrine is applicable, that the entire burden of proof with respect to proving non-culpability remains with the defendant. Chin, 160 N.J. at 464-465. In cases governed by Anderson, the jury is instructed that at least one defendant must be found liable and that the defendants bear the burden of exonerating themselves from liability. Id., at 462-63. The doctrine articulated in Anderson is distinct from the doctrine of res ipsa loquitur, which requires only an explanatory rather than exculpatory account of defendants. Anderson, 67 N.J. at 300-301; Chin, 160 N.J. at 464.

In Anderson, a surgical instrument broke during surgery and was lodged in plaintiff's spinal canal. Plaintiff was unconscious at the time. Plaintiff sued his physician, the hospital, the medical supplier and the manufacturer. Other than the negligence of one of the defendants, there was no explanation as to the cause of the accident. Plaintiff could not prove which defendant caused the accident and the jury returned a verdict in favor of the defendants. The Supreme Court upheld the Appellate Division's determination that at least one of the defendants was liable for plaintiff's injury, and held that the entire burden of proof shifted to the defendants. Anderson, 67 N.J. at 298. According to the court in Anderson, where an unconscious or helpless patient suffers an admitted mishap not reasonably foreseeable and unrelated to the scope of the surgery, and all possible defendants that could have caused plaintiff's harm were joined before the court, defendants must prove non-culpability, or else risk liability for the injuries suffered. Id., at 298. The Supreme Court in Chin reaffirmed Anderson v. Somberg and stated that under the principles of Anderson, the plaintiff must show three things in order to shift the burden of proof to the defendants. First, plaintiff must be entirely blameless, and the most common fact pattern occurs where a plaintiff is clearly helpless or anesthetized when the injury occurs. Second, the injury must be one that bespeaks negligence on the part of one or more of the defendants. Third, all of the potential defendants must be before the court, meaning that all of the defendants who participated in the chain of events causing plaintiff's injury must be represented. Chin, 160 N.J. at 465.

In Chin, the Court shifted the burden of proof to the defendants because the factual pattern mirrored the facts in Anderson and the plaintiff showed that she was entirely blameless, that the injury was one that bespeaked negligence on the part of one or more of the defendants and all potential defendants were before the court. Chin involved a faultless patient that died from an air embolism when nitrogen gas entered the uterus as the direct result of an incorrect hook-up of the hysteroscope. No explanation other than the negligence or the fault of one of the attending physicians and nurses sued was available as the cause of the accident. The fact that the defendant manufacturer was dismissed from the case did not mean that not all the potentially responsible defendants were not present when the case was submitted to the jury. The dismissed manufacturer was included in the litigation but was dismissed based on the evidence presented.

The shifting of the burden of proof permissible under Anderson, supra, is not permitted in situations where a plaintiff has already identified and recovered from a culpable defendant prior to trial. Otherwise, a plaintiff could systematically settle with each defendant, eliminating their exposure to further liability, and ultimately try the case against a lone remaining defendant claiming a burden shift to defendant not only to disprove culpability, but also to prove the negligence of at least one of the settling defendants that plaintiff voluntarily elected to eliminate from the case. Lucia, 341 N.J. at 107-108.

Wrongful Birth and Wrongful Life Actions

A wrongful birth action applies to a parents' cause of action who claim that the negligent advice or treatment of a physician deprived them of the choice of a avoiding conception or of terminating the pregnancy. Wrongful life refers to a cause of action brought by or on behalf of a defective child who claims that but for the defendant's negligent advice or treatment of his or her parents, the child would not have been born. The essence of the infant's claim is that the defendant's wrongfully deprived his mother of information that would have prevented his birth. Procanik by Procanik v. Cillo, 97 N.J. 339, 348 (1984). The duty owed to the parents is to diagnose and inform them of the abnormalities to the infant so the parents can use that information to decide whether the pregnancy should be terminated. A physician's negligence deprives the parents of the option to accept or reject a parental relationship with the child, thereby causing them to experience mental and emotional anguish upon their realization that they had given birth to a child inflicted with an abnormality. Michelman v. Ehrlich, 311 N.J. Super. 57, 68 (App. Div. 1998).

The underpinnings of the wrongful birth cause of action is a violation of a person's right to self determination by removing from the parents the opportunity to make the personal decision of whether or not to give birth to a child who might have birth defects. Schroeder v. Perkel, 87 N.J 53, 66 (1981). The claim may arise from varying circumstances, including a physician's failure to detect a discoverable fetal defect or to inform the parents of such, see, Berman v. Allan, 80 N.J. 421 (1979); a failure to provide adequate genetic testing or counseling, Schroeder, 87 N.J. at 63, or failure to interpret test results properly, Procanik by Procanik v. Cillo, 97 N.J. 339 (1984). Therefore, the doctor's duty of disclosure must be sufficient to enable the patient to make an informed and meaningful decision concerning whether or not to continue the pregnancy.

In the preliminary "Note to the Judge" contained in the Model Jury Charges for Wrongful Birth or Life, the Supreme Court has mandated that an informed consent charge be given in every wrongful birth case. The note states that "the standard for counseling in all wrongful birth cases is expressly found to be the reasonable patient standard and not the professional standard of care."

Both wrongful birth cases and claims based on the doctrine of informed consent are predicated on the patient's right to self-determination. The informed consent doctrine requires that a plaintiff prove "that the undisclosed risk was medically accepted and material, that a reasonably prudent person in the patient's condition would not have undergone the treatment if aware of the risk, and that the risk came to fruition." Canesi v. Wilson,158 N.J. 490, 504 (1999).

Informed consent and wrongful birth causes of action are similar in that both require the physician to disclose those medically accepted risks that a reasonably prudent patient in the plaintiff's position would deem material to her decision. Defining a medically accepted risk is informed by what the physician knows or should know of the patient's history and condition. Canesi, 158 N.J. at 506. In a wrongful birth action, the doctor's duty is to communicate to the patient enough material information to allow her to make an informed choice concerning the continuation of her pregnancy. Id., at 509. The test of materiality in a wrongful birth case is a reasonable patient, in what the physician knows or should know to be the patient's position, would be likely to attach significance to the risk or cluster of risks' in deciding whether to forego the pregnancy or to bring the fetus to term. Id., at 509.

Wrongful birth and informed consent actions have significant differences in that they encompass different compensable harms and measures of damages. In both causes of action, the plaintiff must prove not only that a reasonably prudent patient in her position, if apprised of all material risks, would have elected a different course of treatment or care. In an informed consent case, plaintiff must also meet a two pronged test of proximate causation. Plaintiff must prove that the undisclosed risk actually materialized and that it was medically caused by the treatment.

In a wrongful birth case, a plaintiff does not need to prove that the doctor's negligence was the medical cause of her child's birth defect. Id., at 506. A parent is not required to prove that the doctor's negligence caused the defect because damages for the defect itself are not recoverable. Id., at 502. The appropriate proximate cause inquiry is whether the doctor's inadequate disclosure deprived the parents of their deeply personal right to decide for themselves whether to give birth to a child who could possibly be afflicted with an abnormality. Id., at 515. The test of proximate cause is satisfied by showing that an undisclosed fetal risk was material to a woman in her position; the risk materialized, was reasonably foreseeable and not remote in relation to the doctor's negligence; and, had plaintiff known of that risk, she would have terminated her pregnancy. Id., at 506.

Damages in a wrongful birth action include the emotional injury of the parents caused by the deprivation of the option to accept or reject a parental relationship with the child. The damages also include the special medical expenses attributable to raising a child with a congenital impairment but the birth defect or impairment itself is not compensable. Canesi, 158 N.J. at 502. Either the infant or the parents, but not both, may recover the cost of extraordinary medical expenses. Michelman, 311 N.J. Super. at 66. An infant may not recover general damages for emotional distress or an impaired childhood. Procanik, 97 N.J. at 347.

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