Procanik by Procanik v. Cillo

226 N.J. Super. 132, 543 A.2d 985 (Super. Ct. App. Div. 1988)



The scope and nature of the duty of a lawyer who undertakes to state the law to a client or a prospective client is well settled. If the law is settled, he is expected to know what it is and to state it accurately. If the law is unsettled, debatable or doubtful, he is not required to be correct, usually determinable only by hindsight, but only to exercise an informed judgment based on a reasoned professional evaluation. Nor is an attorney obliged to anticipate a change in settled law. 


The litigation arises out of the tragic circumstances of the birth on December 26, 1977 of a rubella-syndrome child, Peter Procanik, who by reason of his mother's German measles infection early in her pregnancy has grave vision and auditory disabilities,  serious mental deficiencies, and a variety of other physical and mental problems. His parents believed that Mrs. Procanik's obstetrician, defendant Joseph Cillo, who was in practice with defendants Herbert Langer and Ernest Greenberg, had  negligently failed to realize that she had had German measles in her first month of pregnancy and had in fact advised her that the rash-producing illness which she had then suffered was not German measles. By so doing, she claimed, defendant Cillo deprived her of the opportunity for which she would have opted of terminating the pregnancy by voluntary abortion. Her prospective cause of action and that of the child were, consequently, those which have come to be known as wrongful birth and wrongful life.

Several months after Peter's birth, the Procaniks consulted Harold Sherman, a New Jersey attorney, with respect to their potential claims against the obstetricians. Although generally experienced in personal injury litigation, Sherman was not experienced in complex medical malpractice matters. He knew, however, of Goldsmith's expertise as the result of his attendance at a lecture on the subject given by Goldsmith, whose credentials include a medical degree earned prior to his law degree. In the fall of 1978 Sherman asked Goldsmith if he would be willing to represent the Procaniks in litigation against the obstetricians. Goldsmith expressed preliminary interest, making it clear, however, that he would have to make both a medical and legal evaluation before he could commit to the undertaking. Working with Sherman, the Procaniks' attorney, rather than with the Procaniks themselves, Goldsmith obtained the pertinent medical records and a statement from Mrs. Procanik asserting that she would have chosen to terminate the pregnancy had she known that she had had German measles. Goldsmith also submitted the medical information and his own precis of the case for evaluation and report to a medical expert, Dr. Leslie Iffy, a noted perinatologist and experienced forensic witness. In addition, he did legal research and discussed the case from time to time with the senior partners of the Greenstone firm.

About eighteen months following the declination of their case by Sherman, the Procaniks, on the advice of a friend, consulted with their present counsel, who filed a complaint on their behalf in April 1981. The complaint alleged a wrongful life complaint against the obstetricians on behalf of the child, a wrongful birth complaint against the obstetricians on behalf of the parents, and a legal malpractice complaint on behalf of the parents against Goldsmith, the Greenstone firm, and Sherman. The gravamen of the legal malpractice count, as it evolved, was that defendant attorneys, by improperly discouraging the Procaniks from commencing a timely action against the obstetricians, caused them to miss the statute of limitations on their wrongful birth claim against them.


Was counsel professionally negligent?




The court reversed the judgment against defendants on the basis that the record did not raise a prima facie case of professional negligence against defendants. As defendant attorney had correctly explained the existing decisional law of the jurisdiction that prohibited such actions, recent disparate views of a sister jurisdiction, the consequent fact of potential change of decisional law on appeal, and the procedures for obtaining change, he had fulfilled any obligation he may have had to explain his reasons for declining the case.

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