110 Misc. 2d 799 | N.Y. Sup. Ct. | 1981
OPINION OF THE COURT
In this action, based on what is loosely called “wrongful conception”, defendant Planned Parenthood moves for summary judgment. This case is unique in that the moving defendant is not charged with wrongful treatment or diagnosis; rather, the wrongful act is an alleged misstatement contained in a booklet published by said defendant.
From the examination before trial of plaintiff Carmen Roman, it appears that at some point after the birth of her child in February, 1974 she considered sterilization. Recalling the experiences of her mother, with whom she had discussed this before that date, and her sister-in-law, with whom she had discussed it after that date, she considered having a tubal ligation. Subsequently, she spoke to a friend who referred her to Queens General Hospital. In the summer of 1975 she went to the hospital, completed some unspecified forms and attended a lecture concerning sterilization. It was at the end of this lecture that the booklet in
“Q. Should contraceptives be used after tubal ligation?
“A. No. There is no possibility of pregnancy and contraceptives are not necessary.”
Plaintiff subsequently became pregnant and gave birth on December 11, 1977 to an admittedly healthy child.
The evidence is not clear if the operation was improperly performed or whether there was a spontaneous regeneration of plaintiff’s fallopian tubes. Defendant’s witness, a physician, testified that while rare, there is a known failure rate in properly performed sterilization procedures. Since plaintiff does not allege malpractice against defendant Planned Parenthood and since operative malpractice would clearly exculpate defendant, the court, for purposes of this motion, will presume that Carmen Roman’s pregnancy resulted from the “failure” of a properly performed sterilization.
A threshold decision with regard to causes of action arising out of the birth of a child was rendered in Becker v Schwartz (46 NY2d 401). That decision stands principally for the proposition that no cause of action exists on behalf of an infant for “wrongful life” (supra, pp 411-412). No such cause is pleaded here. The second issue considered by the court is the right of a parent to sue (supra, p 412). The court specifically did not consider cases involving the birth of unwanted but healthy children (supra, p 409). Despite that fact, the analysis of the causes of action considered is instructive in this case. If the cause here sounds fundamentally in negligence, then plaintiffs must establish a duty owed to them from defendant and a breach of that duty (supra, pp 410, 412-413).
This does not address the issue of whether plaintiffs have a cause of action against defendant. The complaint charges that defendant knew, or should have known, that its statement concerning the need for contraceptives is false. Defendant contends that such cause sounds in fraud. Plaintiff, however, argues that the case remains one in negligence.
Even if fraud is pleaded, the evidence presented makes it clear that no cause of action lies in actual fraud. Essential to such a cause is scienter, or the knowing and intentional misrepresentation of fact (Channel Master Corp. v Aluminum Ltd. Sales, 4 NY2d 403, 406-408). Assuming the statement concerning contraceptives be false, the evidence before the court contains not even a scintilla to support a possible conclusion of its being a knowing and intentional misrepresentation. The cause of action may not be considered one in constructive fraud, since there the element of scienter is replaced by proof of a confidential or fiduciary relationship not present here (Brown v Lockwood, 76 AD2d 721).
The pleading is consistent with a cause of action based on negligent misrepresentation. Such a cause has long been recognized in this State (International Prods. Co. v Erie R.R. Co., 244 NY 331, 337-339). As noted in Becker (46 NY2d 401, supra) a cause of action sounding in negligence requires the establishment of a duty owing plaintiffs from defendant. While long recognized, the cause of action has been narrowly circumscribed by the very consideration of duty.