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ROSALYN STEWART v. LONG ISLAND COLLEGE HOSPITAL (11/27/68)

SUPREME COURT OF NEW YORK, TRIAL TERM, KINGS COUNTY 1968.NY.43681 <http://www.versuslaw.com>; 296 N.Y.S.2d 41; 58 Misc. 2d 432 November 27, 1968 ROSALYN STEWART, AN INFANT, BY HER PARENT, ROBERT STEWART, ET AL., PLAINTIFFS,v.LONG ISLAND COLLEGE HOSPITAL, DEFENDANT Norman Roy Grutman for plaintiffs. John E. Morris and James E. Hayes for defendant. Charles J. Beckinella, J. Author: Beckinella


Charles J. Beckinella, J.

Author: Beckinella

 In this lawsuit, the complaint states three causes of action, the first on behalf of an infant girl soon to be four years of age, the second on behalf of the infant's mother, and the third on behalf of the infant's father.

Each of the three causes of action has its origin in the circumstance that in June, 1964, the defendant hospital, acting through physicians on its staff, declined to terminate the pregnancy of the plaintiff mother which preceded the birth of the infant plaintiff.

The plaintiff mother was a patient in the defendant hospital for about six days in June, 1964. She entered the hospital as a result of advice given her by her family physician, he having had forebodings that the child the plaintiff mother was carrying would be born with congenital disabilities as a result of the mother having become afflicted with rubella (German measles) early in her pregnancy.

During the several days the mother was confined to the defendant hospital, her case history was reviewed by four physicians who were members of the hospital committee that had the responsibility of deciding whether or not the plaintiff mother's pregnancy should be terminated. Two of the four doctors were of the opinion that an abortion should be performed. Two were of the opinion that no abortion should be performed. The final result was that no abortion was performed. Thereafter, the plaintiff mother gave birth to the infant plaintiff. That unfortunate child suffers serious physical and mental disabilities that will handicap her for the rest of her life.

(a) The first cause of action.

In this cause of action, the infant, suing by her father, alleges that she was seriously injured as a result of the defendant hospital's negligence. Inter alia, the infant alleges that she was born with birth defects "which were either caused or which could have been prevented by the defendant" had it acted prudently; that the birth defects were caused by the defendant's negligence and malpractice; that the defendant was negligent in "failing to carry out the indicated and necessary therapeutic abortion."

There was no proof of any kind adduced at the trial of this action which supports the allegations in the complaint that the defendant hospital caused the infant's birth defects. Nor was there any proof that the infant's disabilities could have been prevented by the hospital. The proof adduced demonstrated beyond any doubt that the infant's birth defects were the consequence of the child's mother having contracted rubella (German measles) during the early stages of her pregnancy.

The proof showed that the only way the infant could have been spared being born with birth defects was not to have been born at all. This leads to the question central to the first cause of action, namely, must the defendant hospital respond in damages to the infant plaintiff because the hospital declined to terminate the pregnancy of the infant plaintiff's mother. There is scant authority on this question, that this court is aware of, in New York or any other jurisdiction.

There is one decision of the Supreme Court of New Jersey that is squarely in point. That decision, Gleitman v. Cosgrove (49 N. J. 22) involved an infant who was born with serious birth defects after his mother had contracted rubella (German measles) during her pregnancy. The mother testified that the defendant physician (p. 24) "told her that the German measles would have no effect at all on her child." Five of the seven Justices of the New Jersey Supreme Court who participated in the Gleitman decision held that the Trial Judge was correct in dismissing the complaint of the infant plaintiff at the close of the plaintiffs' case. Four Justices joined in the majority opinion; the Chief Justice who dissented in part from the majority opinion agreed with the majority that the claim advanced on behalf of the infant "cannot be maintained" (49 N. J. 22, 63).

The majority opinion, as a kind of preface to holding that the first count of the complaint on behalf of the infant Jeffrey Gleitman "is not actionable because the conduct complained of, even if true, does not give rise to damages cognizable at law," stated (pp. 28-29):

"The infant plaintiff is therefore required to say not that he should have been born without defects but that he should not have been born at all. In the language of tort law he says: but for the negligence of defendants, he would not have been born to suffer with an impaired body. In other words, he claims that the conduct of defendants prevented his mother from obtaining an abortion which would have terminated his existence, and that his very life is 'wrongful.'

"The normal measure of damages in tort actions is compensatory. Damages are measured by comparing the condition plaintiff would have been in, had the defendants not been negligent, with plaintiff's impaired condition as a result of the negligence. The infant plaintiff would have us measure the difference between his life with defects against the utter void of nonexistence, but it is impossible to make such a determination. This Court cannot weigh the value of life with impairments against the nonexistence of life itself. By asserting that he should not have been born, the infant plaintiff makes it logically impossible for a court to measure his alleged damages because of the impossibility of making the comparison required by compensatory remedies. As a recent commentator put the matter:

"'[No] comparison is possible since were it not for the act of birth the infant would not exist. By his cause of action, the plaintiff cuts from under himself the ground upon which he needs to rely in order to prove his damage.' Tedeschi, 'On Tort ...


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