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Court of Appeals of New York
November 27, 1978, Submitted ; December 27, 1978, Decided
No Number in Original
[*405] [**808] [***896] OPINION OF THE COURT
From its earliest days, the common law steadfastly clung to the notion [****10] that "in civil court the death of a human being could not be complained of as an injury." ( Baker v Bolton, 1 Camp 493, 170 Eng Rep 1033 [KB, 1808].) Judicial hesitance to chart a novel course beyond the safe harbors afforded by prevailing legal theory, particularly the principle that a tort died with its victim ( Huggins v Butcher, 1 Brown & Gold 205, 123 Eng Rep 756 [CP, 1607]), spurred legislative recognition of the cause of action since known as "wrongful death". (See, generally, Prosser, Torts [4th ed], § 127.) Ironically, in the relatively brief period since the enactment of the first wrongful death statute (Fatal Accidents Act, 1846, 9 & 10 Vict, ch 93), evolving legal theory has come full cycle. Although no longer shackled by the conceptual difficulties formerly posed by a "wrongful death" action, courts have again been drawn toward the murky waters at the periphery of existing legal theory to test the validity of a cause of action for what has been generically termed "wrongful life".
In Becker v Schwartz, Dolores Becker, then 37 years of age, conceived a child in September, 1974. After Dolores and her husband, Arnold Becker, learned of the pregnancy in October, [****11] they engaged the services of defendants, specialists in the field of obstetrics and gynecology. Thereafter, from approximately the tenth week of pregnancy until the birth of their child, Dolores Becker remained under defendants' exclusive care. Tragically, on May 10, 1975, Dolores Becker gave birth to a retarded and brain-damaged infant who suffers, and will [*406] continue to suffer for the remainder of her life, from Down's Syndrome, commonly known as mongolism. 1
[****12] It is plaintiffs' contention that throughout the period during which Dolores Becker was under the care of defendants plaintiffs [***897] were never advised by defendants of the increased risk of Down's Syndrome in children born to women over 35 years of age. Nor were they advised, allege plaintiffs, of the availability of an amniocentesis test 2 to [**809] determine whether the fetus carried by Dolores Becker would be born afflicted with Down's Syndrome.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
46 N.Y.2d 401 *; 386 N.E.2d 807 **; 413 N.Y.S.2d 895 ***; 1978 N.Y. LEXIS 2463 ****
Dolores E. Becker et al., Respondents, v. Eugene D. Schwartz et al., Appellants; Steven M. Park et al., Individually and as Administrators of the Estate of Lara E. Park, an Infant, Deceased, Respondents-Appellants, v. Herbert Chessin et al., Appellants-Respondents
Prior History: [****1] Appeal, in the first above-entitled action, by permission of the Appellate Division of the Supreme Court in the Second Judicial Department, from an order of said court, entered December 12, 1977, which modified, on the law, an order of the Supreme Court at Special Term (David T. Gibbons, J.), entered in Nassau County, dismissing plaintiffs' complaint in its entirety as failing to state a cause of action. The modification consisted of sustaining plaintiffs' complaint except to the extent that it sought recovery of damages for psychiatric injuries or emotional distress of plaintiff Dolores E. Becker and to the extent that plaintiff Arnold Becker's claim for loss of services and medical expenses was based upon such psychiatric injuries. The following question was certified by the Appellate Division: "Was the order of this court dated December 12, 1977, properly made?"
Cross appeals, in the second above-entitled action, by permission of the Appellate Division of the Supreme Court in the Second Judicial Department, from an order of said court, entered December 12, 1977, which modified, on the law, an order of the Supreme Court at Special Term (Harold Hyman, J.; opn 88 Misc 2d 222), [****2] entered in Queens County, sustaining plaintiffs' causes of action for "wrongful life", plaintiffs' pecuniary expense in caring for the child, Hetty Park's emotional and physical injuries stemming from birth, and Steven Park's loss of his wife's services. The modification consisted of dismissing so much of plaintiffs' complaint as sought damages for the mental anguish or emotional distress of Hetty Park and for the loss of her services, insofar as the claim for loss of services was based upon her mental anguish or emotional distress. The following question was certified by the Appellate Division: "Was the order of this court dated December 12, 1977, properly made?"
Both appeals arise out of complaints based upon a cause of action for "wrongful life" against defendant physicians who allegedly were negligent in failing to inform plaintiff parents accurately of the risks involved in a pregnancy, said negligence being instrumental either in the parents' decision to conceive or the parents' decision not to terminate the pregnancy. Plaintiff parents in both actions seek damages on behalf of the infants, and, in their own right, for pecuniary damages regarding the care and treatment [****3] of the infants and damages for the emotional injuries suffered by the parents, excluding Arnold Becker.
The Court of Appeals modified the order of the Appellate Division, holding, in an opinion by Judge Jasen, that a cause of action for "wrongful life", on behalf of an infant, does not exist as the infant has not suffered a legally cognizable injury, and, furthermore, the damages are not ascertainable. The court also held that a cause of action for "wrongful life", by the parents in their own right, does exist for the pecuniary damages suffered as a result of the birth as the damages are ascertainable; however, policy reasons prevent parents from recovering damages for emotional harm as calculation of damages for such an injury is too speculative.
Becker v Schwartz, 60 AD2d 587.
Park v Chessin, 60 AD2d 80. Becker v Schwartz, 46 NY2d .
Disposition: Order modified, with costs to defendants, in accordance with the opinion herein, and, as so modified, affirmed. Question certified answered in the negative.
Order modified, with costs to defendants, in accordance with the opinion herein, and, as so modified, affirmed. Question certified answered in the negative.
cause of action, infants, birth, damages, plaintiffs', pregnancy, wrongful life, cases, pecuniary loss, conceived, emotional harm, abortion, cognizable, costs, seek damages, terminated, afflicted, disease, defendants', proximate, expenses, flowing, emotional injury, second child, own right, abnormality, complaints, occasioned, emotional, injuries
Torts, Negligence, Elements, Malpractice & Professional Liability, Healthcare Providers, General Overview, Family Law, Family Relationships & Torts, Wrongful Life, Healthcare Law, Treatment Liability Issues, Medical Malpractice, Wrongful Birth, Types of Liability, Wrongful Birth, Defenses, Remedies, Pain & Suffering, Emotional Distress, Award Calculations, Remedies, Damages, Reductions of Damages