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Keywords

defendantdamagesnegligencemotionmalpractice
plaintiffdefendantnegligencemotionmalpractice

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Giardina v. Bennett, 111 N.J. 412, 545 A.2d 139, 57 USLW 2127

Facts

In October 1982, Regina Giardina was informed by her obstetrician, Gardiner Bennett, that she was pregnant. As her due date approached, she experienced complications and was examined multiple times by Bennett, who deemed her symptoms common and did not perform a Caesarean section. After being admitted to the hospital, it was discovered that the fetus had no heartbeat, and the baby was stillborn on June 13, 1983. The Giardinas filed a complaint under the Wrongful Death Act, seeking damages for the stillbirth.

According to the record as it is presented to us, reflecting plaintiff's version of the facts in the absence of a full adjudication, in October 1982, Regina Giardina was informed by the defendant, Gardiner Bennett, her obstetrician and gynecologist, that she was pregnant and that her due date was May 19, 1983.

Issue

Does the Wrongful Death Act allow parents to recover damages for the stillbirth of their child due to alleged medical malpractice?

The immediate question that is presented is whether this claim gives rise to a statutory right of recovery under the state's Wrongful Death Act.

Rule

The Wrongful Death Act does not permit recovery for the wrongful death of an infant before birth, as the fetus is not considered a 'person' under the Act.

We conclude, however, that the Wrongful Death Act does not permit recovery attributable to the wrongful death of an infant before birth.

Analysis

The court analyzed the nature of the injury caused by the doctor's negligence, recognizing that while the parents suffered emotional distress due to the stillbirth, the statutory language of the Wrongful Death Act specifically refers to the death of a 'person.' The court concluded that the Act was not intended to cover the death of a fetus, despite the emotional injuries suffered by the parents.

The malpractice is directed against expectant parents and the unborn child. The gravity of such negligence, the foreseeability of parental suffering, and the genuineness of injury and loss, all of which inhere in a birth attended by tragedy, present a compelling case for recognition of the direct injury to the parents.

Conclusion

The Supreme Court affirmed the lower court's decision, ruling that the parents could not recover under the Wrongful Death Act for the stillbirth of their child.

This Court has also recognized in other contexts an independent cause of action for the negligent infliction of emotional distress arising from wrongful conduct directed against intimate members of a claimant's family.

Who won?

Defendant, Gardiner Bennett, prevailed because the court found that the Wrongful Death Act did not extend to the death of a fetus.

The Appellate Division summarily affirmed.

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