Schroeder v. Perkel

432 A.2d 834, 87 N.J. 53, 1981 N.J. LEXIS 1661

• Court: Supreme Court of New Jersey
• Decided: July 15, 1981
• Status: Published

Opinions

The opinion of the Court was delivered by

POLLOCK, J.

The sole issue on this appeal is the propriety of a grant of partial summary judgment to defendant physicians in a “wrongful conception” or “wrongful birth” action brought by the parents of a child with cystic fibrosis.

The parents allege that the negligent failure of defendants to diagnose cystic fibrosis, a hereditary disease, in their first child deprived the parents of an informed choice whether to have a second child. Consequently, the parents seek to recover the incremental medical costs associated with raising the second child who also suffers from cystic fibrosis. They claim that these costs are attributable directly to the negligence of the defendants.

The trial court denied defendants’ motion for summary judgment, but the Appellate Division reversed. We granted certification, 84 N.J. 438 (1980). We reverse the judgment of the Appellate Division and remand the matter for trial.

I

Because this appeal presents for review an order of partial summary judgment for defendants, we must accept as true all the allegations in plaintiffs’ complaint, affidavits and depositions and accord to them the benefit of all reasonable inferences. Portee v. Jaffee, 84 N.J. 88, 90 (1980); Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 74-75 (1954).

Defendants, Dr. Perkel and his associate Dr. Venin, are pediatricians certified by the American Board of Pediatrics and licensed to practice medicine in this state. They treated infant plaintiff, Ann Schroeder, from May 1970 until September 1974. During that time, they failed to diagnose Ann’s illness as cystic fibrosis, a genetically transferred disease. Because Mr. and Mrs. Schroeder, Ann’s parents, were not told that they were carriers of cystic fibrosis, they claim that they were deprived of an informed choice of whether to assume the risk of a second child. Before they learned that Ann suffered from cystic fibrosis, Mrs. Schroeder became pregnant. One month after learning of Ann’s affliction, Mrs. Schroeder gave birth to a second child, Thomas, who also suffers from cystic fibrosis.

Cystic fibrosis is one of the most common fatal genetic diseases in the United States and affects approximately one out of every 1,800 babies. An insidious and incurable disease, cystic fibrosis is carried by some parents as a recessive gene. There is no reasonably certain method of detecting whether a parent is a “carrier” of the disease, and parents may be carriers without knowing it. When both parents are carriers, they may anticipate that cystic fibrosis will affect their children according to the Mendelian ratio. The statistical probability that cystic fibrosis will affect the children is: 25% probability of a normal child, 50% probability of a carrier child, and 25% probability of an afflicted child.

In general, cystic fibrosis causes certain glands to malfunction and produce abnormally thick mucous. The most commonly affected body systems are the digestive tract and the respiratory system. In the digestive tract, mucous blocks ducts in the pancreas, preventing enzymes from reaching the intestines. One result is an inability to digest fats. Respiratory problems, however, are the most serious symptoms of cystic fibrosis. In the respiratory system, mucous clogs passages and causes air to become trapped in the lungs. Respiratory problems cause chronic pulmonary infection, emphysema and over 90% of all deaths of patients with cystic fibrosis. Metabolic Basis of Inherited Disease 1684 (4 ed. 1978).

Standard treatment of cystic fibrosis consists of antibiotics to control pulmonary infection and a restricted diet. Mucous is drained from the lungs by elevating the victim’s feet above the head and clapping or gently pounding the back and chest. Hospital or institutional care frequently is not required except in emergencies or until the terminal stages of the illness.

In many respects, people afflicted with cystic fibrosis may lead normal lives. The prospects for one suffering from cystic fibrosis, however, are grim. Life expectancy is foreshortened, and death usually occurs in the late teen years.

Cystic fibrosis cannot be detected in a fetus. A safe, simple and highly reliable test, however, can be performed shortly after birth. Known as the “sweat test,” it involves an analysis of perspiration, which contains an abnormally high concentration of salt in someone suffering from cystic fibrosis. A positive test indicates not only that both parents are carriers, but also the probabilities that future children of those parents will be afflicted with cystic fibrosis.

As an infant, Ann suffered from a digestive disorder diagnosed by Dr. Swiney, a general practitioner, as colic. When the symptoms persisted through her second year, Dr. Swiney referred Ann to the defendant physicians.

Dr. Venin diagnosed Ann’s condition as a malabsorption syndrome resulting from an intolerance for fats. He prescribed a special diet low in starch and high in protein. The diet, which relieved her symptoms, is the same diet prescribed for persons suffering from cystic fibrosis. Dr. Venin did not deem the diagnosis final, however, and indicated that alternative diagnoses should be considered and eliminated. His notes from his initial interview with Ann show the entry “R.O. [meaning “rule out”] cystic fibrosis.”

Dr. Venin did not perform a sweat test. Instead, he relied on a stool test performed by Dr. Swiney, and he assured Mr. and Mrs. Schroeder that the stool test ruled out cystic fibrosis. Nonetheless, Dr. Venin admits that the stool test is not the correct or preferred test to use in diagnosing cystic fibrosis. Between May 1970 and September 1974, Dr. Venin also treated Ann for respiratory complaints that he diagnosed as an allergic problem.

In June 1974, Mr. and Mrs. Schroeder read a newspaper article describing the symptoms of cystic fibrosis. Feeling that the article described Ann’s condition, they asked Dr. Venin about the possibility of cystic fibrosis. According to Mrs. Schroeder, Dr. Venin told her in July 1974 that Ann “couldn’t possibly have cystic fibrosis,” an assertion disputed by Dr. Venin. Mrs. Schroeder stated that Dr. Venin informed her that the stool test performed by Dr. Swiney had eliminated the possibility of cystic fibrosis and that Ann definitely was not suffering from this disease.

When Ann’s condition worsened in September 1974, Dr. Venin referred her to Dr. Grotsky, a specialist in digestive disorders. Dr. Grotsky performed the sweat test. The test established that Ann suffered from cystic fibrosis. Unfortunately, by that date Mrs. Schroeder was in the eighth month of her pregnancy with Thomas. The delay in the diagnosis had precluded Mr. and Mrs. Schroeder from making an informed choice as to whether or not to assume the risk of conceiving a second child with cystic fibrosis. The delay also had prevented them from making an informed choice whether Mrs. Schroeder should have an abortion.

On depositions, Mrs. Schroeder testified:

Q. If you had been made aware at an earlier time that Ann had cystic fibrosis, would you have become pregnant with Thomas?

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A. No. I would not have.

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Q. If you had been told that Ann had cystic fibrosis in late January or early February of 1974 would you have aborted the pregnancy?

A. Yes.

A consideration of the risk of cystic fibrosis for subsequent children led Mr. Schroeder to submit to a vasectomy even before the birth of Thomas. A sweat test performed on Thomas two weeks after his birth revealed that he, like his sister, was afflicted with cystic fibrosis.

Mr. and Mrs. Schroeder instituted this action on behalf of themselves and Ann and Thomas. In an amended complaint, they asserted four causes of action. In Count One, Mrs. Schroeder, as guardian ad litem of Ann, sought damages for pain and suffering caused by the allegedly negligent failure of defendants to diagnose that Ann suffered from cystic fibrosis. In Count Two, Mr. and Mrs. Schroeder asserted their own claim for the costs of past medical care for Ann. In Count Three, Mr. and Mrs. Schroeder sought damages in a “wrongful birth” action for the failure of defendants to advise them that Ann suffered from cystic fibrosis, thereby depriving Mr. and Mrs. Schroeder of the alternative of preventing the conception of Thomas. They sought damages not only for the incremental medical costs, but also for the mental anguish involved in caring for Thomas. In Count Four, Mrs. Schroeder, as guardian ad litem of Thomas, asserted a claim for his wrongful life. In that claim she sought damages for his pain and suffering resulting from his birth and life as a child afflicted with cystic fibrosis.

Defendants moved for summary judgment on all four counts. The trial court denied defendants’ motion for summary judgment on Counts One and Two (which included claims for medical costs and pain and suffering of Ann), and defendants did not seek leave to appeal. The trial court granted the motion for summary judgment for defendants on the fourth count asserting the claim for the “wrongful life” of Thomas. The Appellate Division affirmed, and Mr. and Mrs. Schroeder did not file a petition for certification from that judgment.

With respect to Count Three, the trial court granted defendants’ motion for summary judgment as to the claim of Mr. and Mrs. Schroeder for mental anguish, but denied the motion on the Schroeders’ claim for incremental medical expenses from the alleged wrongful birth of Thomas. The Appellate Division reversed the order granting summary judgment for defendants on the claim of Mr. and Mrs. Schroeder for mental anguish, but also reversed and entered judgment for defendants on the claim for incremental medical expenses.

The different results reached by the trial court and Appellate Division are explained by the fact that in the interim between the two decisions we rendered our opinion in Berman v. Allan, 80 N.J. 421 (1979). In Berman, this Court held that the parents of a child born with Down’s Syndrome had a cause of action for “wrongful birth” against the mother’s obstetricians. Her physicians had failed to advise Mrs. Berman, who was over the age of 35, of the probabilities of a woman of her age giving birth to a child afflicted with Down’s Syndrome. Also, they had failed to advise her of the availability of amniocentesis ¹, a procedure that would have disclosed Down’s Syndrome in the fetus. They thereby deprived her of the freedom to decide to have a abortion. Until the decision in Berman, parents did not have a claim for “wrongful birth” of an infant. See Gleitman v. Cosgrove, 49 N.J. 22 (1967). The trial court understandably relied upon Gleitman, and the Appellate Division reversed because of the intervening decision in Berman. In the present case, defendants did not seek leave to appeal the Appellate Division’s reversal of the grant of their motion for summary judgment on the Schroeders’ claim for mental anguish. Thus, the only issue before us is the propriety of the judgment for defendants entered by the Appellate Division on the claim of Mr. and Mrs. Schroeder for incremental medical costs for their second child, Thomas, who suffers from cystic fibrosis.

II

In determining the rights and duties of the parties, we must consider initially whether the defendant physicians owed a duty to Mr. and Mrs. Schroeder to diagnose Ann’s affliction and to inform them that she suffered from cystic fibrosis. If that duty exists, we must then consider whether Mr. and Mrs. Schroeder have asserted facts establishing a breach of the duty. Finally, we shall consider whether Mr. and Mrs. Schroeder have asserted sufficient facts to establish that the breach of duty proximately caused the extraordinary medical expenses that they claim they will sustain in caring for Thomas.

Defendants contend that Ann was their patient and that their duty was to her, not her parents. In effect, they contend that they had no duty to Mr. and Mrs. Schroeder to advise them that their infant child was suffering from cystic fibrosis. The implication is that, if defendants had no duty to Mr. and Mrs. Schroeder, then defendants cannot be liable for depriving them of the decision not to have another child. Consequently, the defendants argue they cannot be liable for the expenses Mr. and Mrs. Schroeder will sustain in caring for Thomas. We disagree. The contention of the defendant physicians takes too myopic a view of the responsibilities of a physician treating a child with a genetically transferable disease such as cystic fibrosis. See Note, “Father and Mother Know Best: Defining the Liability of Physicians for Genetic Counseling,” 87 Yale L.J. 1488, 1494 (1978).

The scope of duty in negligence, except as limited by policy considerations, is coextensive with the reasonable foreseeability of the consequences of a negligent act. Portee v. Jaffee, supra, 84 N.J. at 94-96 (emotional distress of mother from viewing suffering and death of child sufficiently foreseeable to impose liability on tortfeasor causing injury to child); Trentacost v. Brussel, 82 N.J. 214, 223 (1980) (mugging of tenant was foreseeable result of landlord’s negligent failure to provide locks on apartment house entrance door); Hill v. Yaskin, 75 N.J. 139, 144-146 (1977) (foreseeability of theft of car left unlocked in high crime area and subsequent attempt by police to intercept thieves sufficient to impose liability on car owner for injuries sustained by police officer while apprehending thieves in stolen car).

The foreseeability of injury to members of a family other than one immediately injured by the wrongdoing of another must be viewed in light of the legal relationships among family members. A family is woven of the fibers of life; if one strand is damaged, the whole structure may suffer. The filaments of family life, although individually spun, create a web of interconnected legal interests. This Court has recognized that a wrongdoer who causes a direct injury to one member of the family may indirectly damage another. Consequently, husbands and wives have causes of action for loss of consortium when the other spouse is injured. Ekalo v. Constructive Serv. Corp., 46 N.J. 82, 95 (1965) (recognition of claim by wife for loss of husband’s consortium); Nuzzi v. United States Cas. Co., 121 N.J.L. 249, 254 (E. & A. 1938) (husband has an action for loss of consortium of wife). Parents can recover for loss of companionship and advice in an action for the wrongful death of a minor child, Green v. Bittner, 85 N.J. 1, 4 (1980); an infant can recover against a tortfeasor for prenatal injuries suffered as a result of injuries to the mother in an automobile accident, Smith v. Brennan, 31 N.J. 353, 361 (1960). A parent has a cause of action for mental anguish resulting from viewing the suffering and death of a child caused by the negligence of a tortfeasor. Portee v. Jaffee, supra, 84 N.J. at 101. As a corollary to their duty to provide medical care for their children, parents can maintain an independent action to recover from a tortfeasor for medical expenses incurred for a child. Friedrichsen v. Niemotka, 71 N.J.Super. 398, 402 (Law Div.1962); cf. Greenspan v. Slate, 12 N.J. 426, 443 (1953) (parents under legal obligation to pay for necessary medical care provided to child in an emergency).

Foreseeability of harm to parents from an injury to a child flows not only from the bonds between parent and child, but also from the responsibility of parents to provide medical care for their children. In a theoretical sense, the primary obligation to pay for the medical expense incurred by a child may be that of the estate of the child. Gleitman, supra, 49 N.J. at 64 (Weintraub, C. J., dissenting in part). Generally, however, parents pay for the medical expenses of their children. Indeed, the willful failure of parents to provide “proper and sufficient” medical care for their child is a crime. N.J.S.A. 9:6-1; N.J.S.A. 2C:24 — 4. In this case, we were informed at oral argument that Mr. and Mrs. Schroeder have borne and will continue to bear the expense of the medical treatment of Thomas. It would be unreasonable to compel parents to bear the expense of medical treatment required by a child and to allow the wrongdoer to go scot-free. See id. at 49 (Jacobs, J. dissenting). In this context, a wrong should not go unrequited and an entire family left to suffer because of the dry technicality that Thomas has the primary obligation to pay for his own medical expenses. In addition, exoneration of the defendants would provide no deterrent to professional irresponsibility and would be contrary to the direction of our decisions in family torts. Ibid.

A physician’s duty thus may extend beyond the interests of a patient to members of the immediate family of the patient who may be adversely affected by a breach of that duty. Here, the physicians had not only a duty to Ann, but an independent duty to Mr. and Mrs. Schroeder to disclose to them that Ann suffered from cystic fibrosis. The wrong allegedly committed by defendants was the failure to disclose material information. The defendants should have foreseen that parents of childbearing years, such as Mr. and Mrs. Schroeder, would, in the absence of knowledge that Ann suffered from cystic fibrosis, conceive another child. They should have foreseen also that a second child could suffer from cystic fibrosis and that, if so afflicted, would sustain certain medical expenses. See generally Note, 87 Yale L.J., supra, at 1506-1508.

In his separate opinion, our colleague Justice Handler would extend the duty of the physicians to Thomas. (Post at 74-75). That is, Justice Handler would recognize in Thomas a cause of action for the diminution in the capacity of his parents to love and care for him. This Court, however, has declined to recognize claims for diminished parenthood and wrongful life. Berman, supra, 80 N.J. at 429; id. at 434 (Handler, J., concurring in part and dissenting in part). Furthermore, Mr. and Mrs. Schroeder do not assert any such claims on this appeal. Policy considerations suggest that we proceed judiciously in recognizing causes of action in one member of a family for direct injury to another member. Given the “sensitive and subtle judgments” involved {post at 76), we believe the more judicious course of action is not to pass upon a claim for diminished parenthood on this appeal.

The claim of Mr. and Mrs. Schroeder for medical expenses incurred for Thomas results from their own independent claim, not one that is derivative from Thomas. Berman, supra, 80 N.J. at 430-431. In Berman, we recognized a separate cause of action of parents for the emotional distress in giving birth to a child with Down’s Syndrome. Parents have a right of their own either to accept or reject a parental relationship, and the deprivation of that right by the negligent misconduct of another creates a cause of action in the parents. In Berman, the parents were deprived of the choice whether to bear the emotional burden of an afflicted child. In the present case, Mr. and Mrs. Schroeder were deprived of the choice whether to conceive a second child with cystic fibrosis whose birth would impose extensive medical expenses upon them.

Assuming the truth of the facts set forth in opposition to the motion for summary judgment, defendants thus owed a duty of care to Mr. and Mrs. Schroeder. Ann’s history and symptoms supported the conclusion that Ann probably suffered from cystic fibrosis. Dr. Venin’s notes indicated he should have ruled out cystic fibrosis, and Mr. and Mrs. Schroeder asked him whether Ann suffered from the disease. They also asked him about administering a sweat test, but he assured them it was not necessary. If performed, the sweat test would have disclosed that Ann suffered from cystic fibrosis. His failure to diagnose Ann’s cystic fibrosis and to advise Mr. and Mrs. Schroeder that Ann suffered from the disease was a breach of his duty to them.

The normal measure of damages for the commission of a tort is all damages proximately caused by the injury. Berman, supra, 80 N.J. at 432. The application of that standard has perplexed courts where the tort results in the birth of an afflicted child. In Gleitman, this Court denied recovery for medical expenses to the parents of a child who was born blind and deaf because of the failure of a doctor to advise the mother of the risks of rubella while she was pregnant. The basis for the denial of damages was that because the mother had given birth to a child, albeit afflicted, there was no possible way to measure the damages. At the time of the Gleitman decision, abortion was a crime in New Jersey and a woman did not have a constitutional right to an abortion. Thereafter, in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the United States Supreme Court declared that a woman had a constitutional right to an abortion in the first three months of her pregnancy. In Berman, in part because of the constitutional right of a woman to abort a pregnancy, the Court recognized that the parents had a cause of action for deprivation of the right to decide whether to bear a child with Down’s Syndrome. Nonetheless, the Court found “[t]roublesome” the measure of damages and denied recovery for the expenses in raising and supervising a child with Down’s Syndrome. 80 N.J. at 432.

Other courts have found the delineation of the nature and extent of damages equally troublesome. For example, in a case substantially similar to Berman, the New York Court of Appeals divided on the issue of damages. Becker v. Schwartz, 46 N.Y.2d 401, 386 N.E.2d 807, 413 N.Y.S.2d 895 (Ct.App.1978). The majority disallowed damages for the emotional distress of the mother, but allowed the costs of institutional care of her retarded child. A dissenting judge, however, would have denied both claims of the parents.

Divergent results of different courts or of different members of the same court reflect the complexity of the problem. Inherent in all the cases are sensitive issues concerning procreation and the right to prevent it by contraception or abortion. Those issues may affect judicial nerves differently with correspondingly different reactions. Another consideration that may affect courts in different ways is that the cause of action involves injury arising out of the conception and birth of a person not yet born. Also, courts may vary in their perception of the relationships and responsibilities of one family member to another. In brief, the problems of wrongful conception and wrongful birth involve an evaluation not only of law, but also of morals, medicine and society. Thus, it is not surprising that the same issue may elicit divergent judicial responses.

While we recognized the claim for wrongful birth in Berman, we declined to allow recovery for the normal expenses of raising a child. Writing for the majority, Justice Pashman concluded: “Under the facts and circumstances here alleged, we find that such an award would be wholly disproportionate to the culpability involved, and an allowance of such a recovery would both constitute a windfall to the parents and place too unreasonable a financial burden upon physicians.” Berman, supra, 80 N.J. at 432. The Court determined that a monetary award for the past and future emotional distress suffered by Mr. and Mrs. Berman would be a more appropriate measure of damages for the deprivation of Mrs. Berman’s right to choose to have an abortion.

A critical factor distinguishes the claim of Mr. and Mrs. Schroeder for the extraordinary medical expenses of raising a child with cystic fibrosis from the claim of Mr. and Mrs. Berman. Mr. and Mrs. Schroeder seek damages more proportionate to the wrong of defendants than those sought by Mr. and Mrs. Berman, who sought recovery for the ordinary cost of raising and educating their child. The damages sought by Mr. and Mrs. Schroeder are the medical, hospital and pharmaceutical expenses needed for Thomas’ survival. That kind of expense, regularly measured by the courts, includes the prescription of enzymes and antibiotics, checkups every one or two months and hospitalization, which typically occurs only in emergencies or towards the end of the life of the victim. Mr. and Mrs. Schroeder also intend to seek recovery for the cost of daily therapy to Thomas. Until now that therapy has been provided by them without any outside assistance. At trial they must prove the probability not only of the need and cost of the therapy, but that it will be rendered by someone other than themselves. They cannot recover for services that they have rendered or will render personally to their own child without incurring financial expense.²

By limiting damages to those expenses that are actually attributable to the affliction, we are not conferring a windfall on Mr. and Mrs. Schroeder. Although they may derive pleasure from Thomas, that pleasure will be derived in spite of, rather than because of, his affliction. Mr. and Mrs. Schroeder will receive no compensating pleasure from incurring extraordinary medical expenses on behalf of Thomas. There is no joy in watching a child suffer and die from cystic fibrosis.

In other settings, New Jersey law has allowed for the recovery for the reasonable value of past and future medical services necessitated by a defendant’s tortious conduct. Coll v. Sherry, 29 N.J. 166, 174 (1959) (allowance for recovery of damages for past and future medical care and treatment necessitated by tortious injury); Work v. Philadelphia Supply Co., 95 N.J.L. 193, 196 (E. & A. 1920) (plaintiff may recover “such reasonable outlay in the future as may be necessary to heal herself and her injuries”). And in settings similar to those before us, courts in other states have awarded to parents recoveries for medical treatment for afflicted children. Becker v. Schwartz, supra, 46 N.Y.2d at 412-413, 386 N.E.2d at 813, 413 N.Y.S.2d at 901 (recovery for care and treatment of children with Down’s Syndrome born as consequence of physicians’ tortious conduct); Gildner v. Thomas Jefferson Univ. Hosp., 451 F.Supp. 692, 695 (E.D.Pa.1978) (parents may recover damages for medical expenses and emotional pain caused by child born with Tay-Sachs disease not properly diagnosed by physician’s amniocentesis report); Jacobs v. Theimer, 519 S.W.2d 846, 849 (Tex.Sup.Ct.1975) (recovery disallowed for emotional anguish, but allowed for medical costs of care for defects in child caused by failure to diagnose rubella in mother); Renslow v. Mennonite Hosp., 40 Ill.App.3d 234, 239, 351 N.E.2d 870, 874 (App.Ct.1976) aff’d, 67 Ill.2d 348, 367 N.E.2d 1250 (Sup.Ct., 1977) (medical expenses allowed for child injured as a result of negligent administration of blood transfusion to mother prior to pregnancy); Dumer v. St. Michael’s Hosp., 69 Wis.2d 766, 775-777, 233 N.W.2d 372, 377 (Sup.Ct.1975) (recognition of cause of action for medical treatment of child injured as result of rubella misdiagnosed in mother in early pregnancy). Those cases are consistent with New Jersey public policy that a physician should be liable for losses proximately caused by his negligent deprivation of a woman’s right to decide whether or not to bear a child. Berman, supra, 80 N.J. at 431-432. The medical expenses attributable to the cystic fibrosis of their son are part of Mr. and Mrs. Schroeder’s loss caused by the deprivation of their right to choose whether to conceive a second child. If it is proved at trial that the defendant physicians deprived Mr. and Mrs. Schroeder of their right to choose whether or not to give birth to a child afflicted with cystic fibrosis, defendants should be liable for the incremental medical costs of a child born with that affliction. In the changing landscape of family torts our decision in this case merely advances the frontier a little farther.

We reverse the partial summary judgment for defendants on the third count of the complaint and remand the matter for trial.

1 Amniocentesis is a procedure that involves the aspiration of fluid from the amniotic sac. Amniocentesis, however, cannot lead to the detection of cystic fibrosis in an unborn child.

2 Two recent decisions of the Appellate Division highlight the problem of assessing damages in wrongful conception, wrongful birth and wrongful life cases. In P. v. Portadin, 179 N.J.Super. 465 (1981), a husband and wife sued for certain expenses resulting from the birth of a normal child following the allegedly negligent performance of a sterilization procedure upon the wife. Relying on Berman, supra, the Appellate Division concluded that plaintiffs were precluded from recovering any expenses for raising their child. The court also concluded, however, that the wife may recover for “the pain and suffering accompanying her pregnancy and delivery and for the wages lost during that period, and that her husband may recover for loss of consortium and for the medical expenses incurred which are attributable to the pregnancy and delivery.” P., supra, 179 N.J.Super. at 472. The court disapproved Betancourt v. Gaylor, 136 N.J.Super. 69 (Law Div.1975), which held that the costs of raising a child could be recovered in an action for “wrongful pregnancy” based on negligent sterilization when a normal child is bom. In another case, J.P.M. v. Schmid Laboratories, Inc., 178 N.J.Super. 122 (1981), a husband and wife sued the manufacturer of contraceptive devices in negligence, breach of warranty and strict liability alleging that a defect in a condom caused the wife to become pregnant and give birth to normal twins. The Appellate Division held that interspousal immunity did not preclude a cross-claim for contribution by the manufacturer against the husband for negligent use of the condom. The court declined to permit damages for costs of raising and educating the twins. In this opinion, we neither approve nor disapprove of those decisions.