Wrongful-birth suits seek compensation for the emotionalanguish suffered by parents when a physician allows a child withsevere defects to be born. But what if the child also brings theparents a measure of joy? Should that diminish the award ofdamages?
A Middlesex County judge thought so, and he so instructedjurors. As a consequence, on July 19, the jury in Lodato v.Kappy95, reduced a wrongful-birth award to the parentsof a child born with spina bifida by the amount of joy each of his parents felt about him.The jury awarded Deborah Lodato and her husband, of BrickTownship, $2.276 million, finding that the Obstetrical &Gynecological Group of Metuchen failed to tell her that aprenatal test she had canceled was time-sensitive. The awardincluded $1.2 million in future medical costs and $500,000 and$250,000 to the mother and father, respectively, for mentaldistress and anguish.The jury reduced Deborah Lodato’s portion of the award by 50percent, based upon her share of negligence in canceling theappointment.Then, following Judge Douglas Hague’s instructions, the jurymolded the verdict to account for each parent’s degree ofhappiness over the birth of Ryan Lodato, who was born with spinabifida on Feb. 20, 1993, and now walks with braces, has bladderand bowel incontinence and suffers from short-term memory andattention problems.For Deborah Lodato, it was 35 percent. For her husband,Anthony Lodato, it was 25 percent. Reducing their respectiveawards by those proportions, the jury reduced the total verdictto $1,851,379.The “burden vs. benefit” analysis Hague employed comes fromthe Restatement (Second) of Torts 920. The rule states thatwhenever someone’s negative conduct causes a burden, anyincidental benefit must be factored into the total award.The Lodato’s lawyer, Barry Packin, a partner with WestOrange’s Mandelbaum, Salsburg, Gold, Lazris, Discenza &Steinberg, objected to the ruling and moved for an interlocutoryappeal. He argues that Restatement 920 may apply to wrongful-lifecases when a claim is made for damages to provide for theordinary care of a child, but not to wrongful-birth cases, whichinclude damages for emotional suffering.Other plaintiffs’ lawyers say a benefit vs. burdendetermination could wipe out or substantially undermine emotionaldistress damages in wrongful-birth cases. “These damages werenever intended to be modified or molded,” says Bruce Nagel, apartner with Livingston’s Nagel Rice & Dreifuss. “There is justno logical basis, no legal basis, for this decision.”But one of the defense attorneys disagrees. Richard Brennan,a partner with Morristown’s Shanley & Fisher who represented oneof the doctors found not liable in the case, says that 14 stateshave adopted the benefit vs. burden theory in wrongful-birthcases.”This child was born with spina bifida and he did haveproblems walking and with incontinence, but he was a perfectchild otherwise,” Brennan says. “He was intelligent, bright, andloving. His teacher even testified that he was a role model toother children, what brings parents more pride than that?”The attorney for the medical group, John Orlovsky, a partnerwith West Long Branch’s Orlovsky Moody Schaaff & Gabrysiak, didnot return phone calls seeking comment.Packin says he will seek the court’s reconsideration inSeptember.