Dr. Joseph Cillo failed to diagnose German measles in a pregnant woman named Rosemary Procanik during her first trimester. So did Dr. Herbert Langer and Dr. Ernest Greenberg.<\/p>\n\n\n\n
Her son Peter was born with congenital rubella syndrome. Eye lesions that would affect his vision for the rest of his life. Heart disease that would require monitoring and treatment indefinitely. Hearing loss that would shape every classroom, every conversation, every relationship he would ever have. All three conditions were known consequences of rubella contracted during early pregnancy and all three were the kind of outcomes that genetic counselling and proper diagnosis in the first trimester were specifically designed to flag so that parents could make informed decisions about whether to continue the pregnancy.<\/p>\n\n\n\n
The Procaniks were never given that choice because their doctors never told them Rosemary had rubella. She carried the pregnancy to term believing everything was fine. Peter was born into a life of medical complications<\/a> that his parents would have had the legal right to consider before his birth if anyone had told them the truth.<\/p>\n\n\n\n That was 1983 in New Jersey. What happened next turned into one of the most significant wrongful birth and wrongful life decisions in American law.<\/p>\n\n\n\n After Peter was born the Procaniks hired attorneys to pursue a claim against the three doctors. Straightforward wrongful birth, doctors failed to diagnose a condition that deprived the parents of informed reproductive choice, child born with severe defects as a result.<\/p>\n\n\n\n But the attorneys the Procaniks hired did not know that the New Jersey Supreme Court had just decided Berman v. Allan in 1979, a case that for the first time recognised wrongful birth as a valid cause of action in New Jersey. That decision had been published. It was in the law journals. It was available to any lawyer practicing in this area who was paying attention.<\/p>\n\n\n\n The Procanik’s lawyers were not paying attention. They did not advise their clients that Berman had created a new legal right and the two-year statute of limitations on the parent’s wrongful birth claim expired on January 16, 1980 without anyone filing anything.<\/p>\n\n\n\n So now the parent’s own claim was gone. Not because of the doctors. Because of the lawyers.<\/p>\n\n\n\n Which left Peter. A child born with congenital rubella syndrome, whose parents had been failed by their physicians and then failed again by their attorneys. Could he, the child, bring his own claim? Not for wrongful birth, which belongs to the parents. For wrongful life, a cause of action that says the child’s very existence in a state of suffering is the injury and the doctors who could have prevented it by informing the parents are responsible for the extraordinary costs of that existence.<\/p>\n\n\n\n The New Jersey Supreme Court decided Procanik by Procanik<\/a> v. Cillo in 1984 and the ruling was careful about what it allowed and what it did not.<\/p>\n\n\n\n The court said Peter could not recover general damages for pain and suffering or for the philosophical concept of having been born into a life of impairment. Measuring the difference between an impaired existence and no existence at all was something the court called “logically impossible” and they were probably right about that because no jury can reasonably calculate the monetary value of never having been born.<\/p>\n\n\n\n But the court also said Peter could recover extraordinary medical expenses<\/strong> arising from his birth defects. The logic was practical rather than philosophical. The doctors owed a duty to the mother. They breached that duty by failing to diagnose rubella. The foreseeable consequence of that breach was a child born with expensive, lifelong medical needs. Those expenses are real and calculable, even if the broader existential question about whether Peter would have been better off not existing is not.<\/p>\n\n\n\n Only two other states in the country, California and Washington, have reached the same conclusion. Every other state that has considered wrongful life claims has rejected them. New Jersey was the second to recognise the cause of action and Procanik is still the foundational case for it.<\/p>\n\n\n\n The wrongful birth side of New Jersey law was established five years before Procanik in Berman v. Allan<\/a>. A 38-year-old woman gave birth to a child with Down syndrome. Her doctors had not advised her to undergo amniocentesis, a procedure that was standard for women her age and that would have detected the chromosomal condition.<\/p>\n\n\n\n The court recognised that the parents had been deprived of the choice of whether to continue the pregnancy and awarded damages for their emotional distress. Not for the child’s condition itself, not for the costs of raising the child, but for the anguish of having been denied the information that would have allowed them to make an informed reproductive decision.<\/p>\n\n\n\n Berman drew the first line. Procanik extended it by allowing the child to recover independently when the parent’s claim had been lost through no fault of their own.<\/p>\n\n\n\n This distinction matters because people confuse them constantly and the confusion leads to wrong assumptions about what can be recovered and by whom.<\/p>\n\n\n\n Wrongful birth<\/strong>\u00a0is the parent’s claim. The parents are saying, if we had been properly informed about our child’s condition before birth, we would have had the option to terminate the pregnancy and the failure to inform us deprived us of that choice. The injury is to the parent’s right to make an informed decision. Damages cover emotional distress and, in most jurisdictions that recognise the claim, the extraordinary costs of raising a child with disabilities beyond what it would cost to raise a child without them.<\/p>\n\n\n\n Wrongful life<\/strong>\u00a0is the child’s claim. The child is saying, because of the doctor’s negligence I was born into a life of suffering that would not have occurred if my parents had been told the truth. The injury is the child’s own existence in a state of impairment. In New Jersey, damages are limited to extraordinary medical expenses under Procanik. General damages for pain and suffering are not available.<\/p>\n\n\n\n A family pursuing both claims is running two parallel actions arising from the same medical negligence but belonging to different plaintiffs with different measures of damages. The parents recover for their emotional loss and financial burden. The child recovers for the medical costs that will follow them through their entire life.<\/p>\n\n\n\n When Berman was decided in 1979 the diagnostic tool at issue was amniocentesis. When Procanik was decided in 1984 the failure was a rubella diagnosis. Both cases involved conditions that could have been detected through procedures that existed at the time but were not offered or not performed.<\/p>\n\n\n\n The range of what can be detected today is vastly wider. Cell-free DNA screening, expanded carrier panels, preimplantation genetic testing for IVF patients, whole exome sequencing. The number of conditions that can be identified before birth or even before conception has grown enormously and the standard of care for what doctors are expected to offer and discuss with patients has grown with it.<\/p>\n\n\n\n That expanding standard creates more situations where a failure to test, a failure to offer testing or a failure to communicate results accurately can give rise to a wrongful birth or wrongful life claim. A doctor who does not offer carrier screening to parents with a known family history of a genetic condition is in a different legal position today than a doctor in 1979 who did not recommend amniocentesis, because the current standard of care is more demanding and the available tests are more comprehensive.<\/p>\n\n\n\n If you are going through something like this right now, where a diagnosis was missed or test results were not communicated or your child was born with a condition that could have been detected and you were never told about the risk, that weight you are carrying is real and it is not something you have to figure out on your own. Reaching out to a\u00a0Newark wrongful birth lawyer<\/a>\u00a0is not about assigning blame for your child’s existence, it is about making sure your child has the medical support and financial resources they are going to need for the rest of their life, because that is what Procanik established and that is what the law in New Jersey protects.<\/p>\n","protected":false},"excerpt":{"rendered":" Dr. Joseph Cillo failed to diagnose German measles in a pregnant woman named Rosemary Procanik during her first trimester. So did Dr. Herbert Langer and Dr. Ernest Greenberg. Her son Peter was born with congenital rubella syndrome. Eye lesions that would affect his vision for the rest of his life. Heart disease that would require monitoring and treatment indefinitely. Hearing loss that would shape every classroom, every conversation, every relationship he would ever have. All three conditions were known consequences of rubella contracted during early pregnancy and all three were the kind of outcomes that genetic counselling and proper diagnosis<\/p>\n","protected":false},"author":28,"featured_media":6805,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[890],"tags":[2913,2912,2909,2908,2911,2914,2910],"class_list":["post-6803","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-medical-malpractice","tag-berman-v-allan","tag-genetic-testing-malpractice","tag-medical-negligence-birth-defects","tag-procanik-v-cillo","tag-wrongful-birth-lawsuit","tag-wrongful-birth-vs-wrongful-life","tag-wrongful-life-new-jersey"],"_links":{"self":[{"href":"https:\/\/thelawyerworld.com\/blog\/wp-json\/wp\/v2\/posts\/6803","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thelawyerworld.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thelawyerworld.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thelawyerworld.com\/blog\/wp-json\/wp\/v2\/users\/28"}],"replies":[{"embeddable":true,"href":"https:\/\/thelawyerworld.com\/blog\/wp-json\/wp\/v2\/comments?post=6803"}],"version-history":[{"count":2,"href":"https:\/\/thelawyerworld.com\/blog\/wp-json\/wp\/v2\/posts\/6803\/revisions"}],"predecessor-version":[{"id":6806,"href":"https:\/\/thelawyerworld.com\/blog\/wp-json\/wp\/v2\/posts\/6803\/revisions\/6806"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/thelawyerworld.com\/blog\/wp-json\/wp\/v2\/media\/6805"}],"wp:attachment":[{"href":"https:\/\/thelawyerworld.com\/blog\/wp-json\/wp\/v2\/media?parent=6803"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thelawyerworld.com\/blog\/wp-json\/wp\/v2\/categories?post=6803"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thelawyerworld.com\/blog\/wp-json\/wp\/v2\/tags?post=6803"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}The Parent’s Own Lawyers Missed the Law That Could Have Helped Them<\/strong><\/h2>\n\n\n\n
New Jersey Became One of Three States to Say Yes<\/strong><\/h2>\n\n\n\n
Berman v. Allan Had Already Opened the Door for Parents in 1979<\/strong><\/h2>\n\n\n\n
Wrongful Birth and Wrongful Life Are Not the Same Claim<\/strong><\/h2>\n\n\n\n
Genetic Testing Has Changed and the Standard of Care Has Changed With It<\/strong><\/h2>\n\n\n\n