(Approved 7/02)
Note to Judge
In Canesi v Wilson Id. Id.
The Canesi Court instructed that “[t]he violation of the interest in self-determination
that undergirds a wrongful birth cause of action consists of the parents' lost
opportunity to make the personal decision of whether or not to give birth to a
child who might have birth defects.” Schroeder
v. Perkel, supra, 87 N.J. at 66. The claim in a wrongful birth
action can arise when a physician fails to provide adequate genetic counseling,
see id. at 63, fails to detect
a discoverable fetal defect or to inform the parents thereof, see Berman
v. Allan, 80 N.J. 421 (1979), fails to interpret test results
properly, see Procanik v. Cillo, 97 N.J. 339 (1984), or fails to
warn of a child being born with a defect, see Harbeson v. Parke-Davis, Inc.,
656 P.2d 483, 491 (Wash. 1983); see
also Williams v. University of Chicago
Hosp., 688 N.E.2d 130, 133 (Ill. 1997) (stating that in
wrongful birth actions, parents allege that they would not have carried fetus “to
term if it had not been for the defendant's negligence in prenatal testing,
genetic prognosticating, or counseling [them] as to the likelihood of giving
birth to a physically or mentally impaired child”) (internal quotation and
citation omitted.)) Canesi, supra,
158 N.J. at 501-502.
This case involves a claim that the
defendant is liable for the wrongful birth or life of the plaintiff's
child. The plaintiff contends that the
defendant failed to tell her that by continuing her pregnancy she ran the risk
of [here state the condition], and that had she known of the risk, she
would have terminated the pregnancy. A
woman has the right to decide for herself whether to continue or terminate her
pregnancy.[2] The claim here is that the plaintiff was
deprived of the right to make the personal decision of whether to give birth to
a child who might have birth defects.[3] In this case Dr. [here insert physician’s name] had a duty to explain, in words the
patient could understand, all material information and risks necessary for the
plaintiff to have made an informed decision concerning whether or not to
continue the pregnancy.[4] A doctor is required to obtain enough
information about a patient's background and her reasons for seeing the doctor
to determine what information is material to the patient and to discuss that
information with her.[5] Medical information is “material” when a
reasonable woman, in what the physician knows or should know to be the
patient's position, could attach significance to a risk of a birth defect in
deciding whether to terminate the pregnancy or give birth to the child.[6]
Option A: [Use option A where the claim is
that the defendant failed to recommend or provide sufficient information about
genetic counseling or screening; failed to perform a prenatal test, negligently
interpreted the prenatal test, failed to perform follow-up testing et cetera.]
In this case, the plaintiff contends
that the doctor failed to [here describe the allegations, i.e., failed to
provide the information that a reasonable patient would expect to be told about
genetic counseling or screening, failed to recommend or provide sufficient
information about genetic counseling or screening, failed to do follow up
testing, failed to interpret an ultrasound or other prenatal test properly, et
cetera]. As a result, the plaintiff
was not advised that by continuing her pregnancy she ran the risk of giving
birth to a child with [state the condition], and that had she known of
the risk of the birth defect she would have terminated the pregnancy. To prevail in a wrongful birth claim, the
plaintiff must prove all of the following elements:
(1)
the
defendant negligently [describe the allegation, e.g., failed to recommend or
provide sufficient information that a reasonable patient would expect to be
told about genetic counseling or screening, failed to perform a prenatal test,
negligently interpreted the prenatal test, failed to perform follow-up testing
et cetera]; and
(2) if
the test was properly performed [or interpreted et cetera], in some
cases it would have disclosed the possibility of [state the condition];[7] and
(3)
if
the plaintiff was advised of the possibility of a [state the condition]
birth defect, she would have terminated the pregnancy.
Option B: [Use option B only where the
allegation is that the defendant failed to disclose the risks of a birth defect
associated with taking a particular medicine while pregnant.]
In this case, the plaintiff contends
that the doctor failed to [describe the allegations, e.g., failed to
disclose the risks of a birth defect associated with taking a particular
medicine while pregnant et cetera].
As a result, the plaintiff was not advised that by continuing her
pregnancy she ran the risk of giving birth to a child with [state the
condition], and that had she known of the risk of the birth defect she
would have terminated the pregnancy.
To prevail in a wrongful birth claim
involving a birth defect resulting from taking a prescribed medicine while
pregnant, the plaintiff must prove all of the following elements:
(1) that the undisclosed risk of the medication
was material to a woman in the plaintiff's position;
(2) that the
risk materialized; and
(3) had the
plaintiff known of that risk, she would have terminated her pregnancy.[8]
[The remainder of charge -- all
cases:]
The plaintiff does not have to prove
that any doctor's negligence caused her child's birth defect. The question is
whether the doctor's failure to disclose the risk of a birth defect deprived
the plaintiff(s) of [her or their] right to decide whether to give birth
to a child who could possibly have a birth defect.[9]
[10]
If you conclude that the plaintiff would
have had an abortion, if warned of the risk of a birth defect, the plaintiff is
entitled to damages consisting of both:
(1) the special medical expenses and other
extraordinary expenses attributable to raising a child with a birth defect over
the child's lifetime; and
(2) the
emotional injury and anguish that the plaintiffs have suffered and will suffer
in the future caused by losing the option to terminate the pregnancy and being
compelled to take on the lifetime tasks and burdens of raising a disabled
child.[11]
Source: https://njcourts.gov/attorneys/civilcharges.html
[1] Canesi v.
Wilson, 158 N.J. 490 (1999); Procanik
v. Cillo, 97 N.J. 339 (1984); Schroeder v. Perkel, 87 N.J.
53 (1981); and Berman v. Allen, 80 N.J. 421 (1979).
[2] “A wrongful
birth cause of action is predicated on a woman's right to determine for herself
whether or not to continue or terminate her pregnancy.” Id.
[3] “The violation
of the interest in self-determination that undergirds a wrongful birth cause of
action consists of the parents' lost opportunity to make the personal decision
of whether or not to give birth to a child who might have birth defects.” Schroeder, supra, 87 N.J. at
66. The claim in a wrongful birth action can arise when a physician fails to
provide adequate genetic counseling, see id. at 63; fails to detect a
discoverable fetal defect or to inform the parents thereof, see Berman
v. Allan, 80 N.J. 421 (1979); fails to interpret test results
properly, see Procanik v. Cillo, 97 N.J. 339 (1984); or fails to
warn of a child being born with a defect, see
Harbeson v. Parke-Davis, Inc.,
656 P.2d 483, 491 (Wash. 1983); see
also Williams v. University of Chicago Hosp., 688 N.E.2d 130,
133 (Ill. 1997) (stating that in wrongful birth actions, parents allege that
they would not have carried fetus” to term if it had not been for the
defendant's negligence in prenatal testing, genetic prognosticating, or
counseling [them] as to the likelihood of giving birth to a physically or
mentally impaired child”) (internal quotation and citation omitted)). Id.
[4] “Because the
patient's protectable interest is the personal right of self-determination, the
doctor's duty of disclosure must be sufficient to enable her to make an
informed and meaningful decision concerning whether or not to continue the pregnancy.” Id.
[5] “A physician .
. . could reasonably be expected to ascertain enough of a patient's background,
[and] her reasons for seeking pregnancy counseling . . . to assess what
information might be useful to the patient's deliberative process and then to
discuss that information with her.” Id.
[7] In Gardner
v. Pawliw, 150 N.J. 359 (1997), the Court held:
When the prevailing standard of care indicates that a
diagnostic test should be performed and that it is a deviation not to perform
it, but it is unknown whether performing the test would have helped to diagnose
or treat a pre-existent condition, the first prong of Scafidi does not
require that the plaintiff demonstrate a reasonable medical probability that
the test would have resulted in avoiding the harm. Rather, the plaintiff must demonstrate to a
reasonable degree of medical probability that the failure to give the test
increased the risk of harm from the pre-existent condition. A plaintiff may demonstrate an increased risk
of harm even if such tests are helpful in a small proportion of cases. We reach that conclusion to avoid the
unacceptable result that would accrue if trial courts in such circumstances
invariably denied plaintiffs the right to reach the jury, thereby permitting
defendants to benefit from the negligent failure to test and the evidentiary
uncertainties that the failure to test created. Id.
See also, Reynolds v. Gonzales, N. J. (2002), holding, “[A] plaintiff may
demonstrate an increased risk even if the test would have been helpful in just
a small proportion of cases.” (Citing Gardner,
supra, 150 N.J. at 387.)
[8] “[A] plaintiff
need not prove that the doctor's negligence caused her child's birth defect.
Rather, the test of proximate causation 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.
[9] “The
appropriate proximate cause question ... is whether the doctors' 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 a physical abnormality.” Id.
[10] In Lynch v.
Scheininger, 162 N. J. 209 (2000), the Court held that where
plaintiff is aware of the probability of a birth defect while plaintiff is
still able to terminate the pregnancy, the jury may consider whether the
plaintiff's decision to give birth to the child should be considered in
mitigation of damages.
[11] “[A] woman
asserting a wrongful birth claim who proves that she herself would have had an
abortion if apprised of the risk of fetal defect is entitled to damages
consisting of both the special medical expenses attributable to raising a child
with a congenital impairment and the emotional injury attributable to the
deprivation of the option to accept or reject a parental relationship with the
child.” Canesi, supra, 158 N.J.
at 517-518.
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