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GILDINER v. THOMAS JEFFERSON UNIV. HOSP.

May 25, 1978

MARK GILDINER and LINDA GILDINER, individually and on behalf of ANDREW LANE GILDINER
v.
THOMAS JEFFERSON UNIVERSITY HOSPITAL, ARNOLD KESSLER, M.D., S. BRUCE RUBIN, M.D., and LAIRD G. JACKSON, M.D.



The opinion of the court was delivered by: HANNUM

 HANNUM, J.

 Presently before the Court is the motion for judgment on the pleadings of defendants Thomas Jefferson University Hospital and Dr. Laird G. Jackson. Defendants S. Bruce Rubin, M.D., and Arnold Kessler, M.D., have been permitted to join as moving parties on the motion for judgment on the pleadings by Order of the Court. For the following reasons, the motion of defendants for judgment on the pleadings is DENIED; however, claims brought on behalf of Andrew Lane Gildiner are dismissed for failure to state a claim upon which relief can be granted.

 The Court has jurisdiction over this action pursuant to 28 U.S.C. ยง 1332. Plaintiffs Mark Gildiner, Linda Gildiner, and Andrew Lane Gildiner, are citizens of Colorado. Defendants Dr. Arnold Kessler, Dr. S. Bruce Rubin, and Dr. Laird G. Jackson are not citizens of Colorado. Defendant Thomas Jefferson University Hospital is incorporated in Pennsylvania and has its principal place of business in Pennsylvania. The amount in controversy exceeds $10,000.

 I. FACTS

 For the purposes of this motion, all facts alleged in the complaint must be regarded as valid. The facts, sourced from the complaint, are as follows.

 Linda Gildiner became pregnant during November of 1973. In December of 1973 the Gildiners consulted Drs. Kessler and Rubin for treatment, care and supervision concerning Linda Gildiner's pregnancy. Mark and Linda Gildiner subsequently were administered a Tay-Sachs test performed by the Thomas Jefferson University Hospital. The tests established that both Mark and Linda Gildiner were carriers of Tay-Sachs disease.

 Dr. Kessler explicitly guaranteed that the results of the amniocentesis would categorically determine whether or not the fetus would have Tay-Sachs disease. In early April of 1974, Dr. Laird G. Jackson, Director of the Medical Genetics Division of the Thomas Jefferson University Hospital, informed Linda and Mark Gildiner that the results of the amniocentesis eliminated any possibility that the fetus would have Tay-Sachs disease. Dr. Jackson recommended that the Gildiners proceed with the pregnancy, stating that any possibility that the fetus would be afflicted with Tay-Sachs disease had been ruled out by the amniocentesis.

 The Gildiners proceeded with the pregnancy, and Andrew Lane Gildiner was born on August 14, 1974, afflicted with Tay-Sachs disease. Andrew Lane Gildiner's life span is expected to be five years or less, because of Tay-Sachs disease. Mark and Linda Gildiner have sustained medical expenses and emotional suffering as a result of Andrew Lane Gildiner's affliction with Tay-Sachs disease.

 II. ANDREW GILDINER HAS FAILED TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED.

 Andrew Lane Gildiner is asserting claims for damages for the alleged negligence of the defendants in performing the amniocentesis. Andrew Lane Gildiner requests damages for the consequence of the alleged negligence. The consequence is that he was born, afflicted with the Tay-Sachs disease, instead of aborted.

 We find this case analogous to that in Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967). In Gleitman v. Cosgrove, a child sued the mother's physician for sight, hearing, and speech defects caused by the mother's infection with German measles during the first trimester of pregnancy. The physician consistently advised the mother that the illness would have no effect on her child. The mother alleged that she would have aborted the pregnancy if she had been informed of the chances that her child would be born with defects. The Supreme Court of New Jersey held that the child did not present a claim upon which relief could be granted, because the conduct complained of did not give rise to damages cognizable at law. Chief Justice Weintraub stated in concurring on this issue that:

 
Ultimately, the infant's complaint is that he would be better off not to have been born. Man, who knows nothing of death or nothingness, cannot possibly know whether that is so. We must remember that the choice is not between being born with health or being born without it; it is not claimed that the defendants failed to do something to prevent or reduce the ravages of rubella. Rather the choice is between a worldly existence and none at all. * * * To recognize a right not to be born is to ...

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