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Proving Liability In A Medical
Malpractice Case
By:
E. Drew Britcher, Esq.
Jessica E. Choper, Esq.
Britcher, Leone & Roth, 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 Aenable 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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