MARGETT, J. (dissenting).

Tay-Sachs disease is an inherited fatal disorder caused by the absence of a vital enzyme which essentially results in the destruction of the nervous system. It is a progressive, degenerative nervous system affliction which invariably causes death prior to the age of five years. On August 21, 1972 the plaintiff Laura Howard gave birth to a female child with this fatal disease. Melisa Howard succumbed to the inevitable effects of Tay-Sachs and died on June 26, 1974, not having reached her second birthday. The plaintiff parents are now looking to the defendant obstetrician who treated Mrs. Howard through gynecological examinations, the pregnancy period and in the obstetric delivery of the deceased child, for damages sounding in medical malpractice, seeking reimbursement for medical expenses and for the pain and anguish in watching their child degenerate and die under the influence of Tay-Sachs. It is alleged that the defendant failed to take an adequate history inasmuch as the plaintiffs were of Jewish, Eastern European background and potential carriers of the disease; failed to administer available tests to determine whether the parents were carriers; and otherwise failed to give proper advice and recommendations with respect to treatment during the pregnancy period. It is averred that had the defendant undertaken the proper medical course, the parents would have been found to be Tay-Sachs carriers and they would have elected to terminate the pregnancy by a eugenic abortion. It is my view that this complaint states a valid cause of action and that the plaintiff parents are entitled to seek damages for mental anguish resulting from the defendant's alleged negligence.

Under classic common-law principles of negligence the plaintiffs should be entitled to establish at trial the customary elements of duty, negligence, proximate cause and damages, and, if those are found, the wrong-doing physician should not be granted immunity which, in effect, allows the injuries to go unredressed. In a malpractice action, "`the person responsible for the injury must respond for all damages resulting directly from and as a natural consequence of the wrongful act according to common experience and in the usual course of events, whether the damages could or could not have been foreseen by him'" (Ziemba v Sternberg, 45 A.D.2d 230, 231, citing Steitz v Gifford, 280 N.Y. 15, 20; Jacobs v Theimer, 519 S.W.2d 846 [Tex]; Dumer v St. Michael's Hosp., 69 Wis.2d 766; Coleman v Garrison, 327 A.2d 757 [Del]). The defendant's patient had the right to information adequate for her to exercise an informed consent or refusal of the continuation of her pregnancy. As such, Dr. Lecher owed a duty to compile adequate information so that subsequent Tay-Sachs tests could have been conducted. Upon being advised of the results of those tests, Mrs. Howard should have then been given the option to terminate the pregnancy or to proceed to childbirth (see Jacobs v Theimer, supra; Canterbury v Spence, 464 F.2d 772; Cobbs v Grant, 104 Cal Rep 505; see, also, 79 ALR2d 1028).

Tay-Sachs disease was first identified 91 years ago as a progressive mental and motor deterioration with onset in infancy and subsequent fatality in early childhood. At this time there is neither a cure nor a treatment. However, by 1969 Drs. John O'Brien and Shintaro Okada had discovered that a lack of "hex A" in the body's enzymes caused the disease. The following year a team of doctors discovered a process wherein, after blood tests are taken, and positive results found, a small amount of the fluid around the unborn child can be removed in a process called amniocentesis. Upon testing, the presence or lack of "hex A" can be ascertained. Since the disease is caused by an inherited enzyme deficiency and is predominantly found in the Ashkenazic Jewish population originating in Central and Eastern Europe, only those susceptible Jews need be tested for the presence of Tay-Sachs disease. While the carriers themselves are perfectly normal in all respects, when two carriers produce offspring, there is a high risk that their child will be afflicted with the fatal disease. Thus, it is evident that by 1972 a relatively simple and inexpensive medical procedure had been developed to isolate and identify the irregular enzyme causing the Tay-Sachs. Furthermore, programs involving population screening to detect the suspect enzyme for Tay-Sachs disease in the Jewish population have been conducted in the Baltimore-Washington area, throughout New Jersey, and Toronto, Canada involving many thousands of people. It is because the detection is relatively simple and is limited to an identifiable population group, and because a simple and accurate test is available for diagnosis, that a master screening program to detect the presence of the offending enzyme can be conducted without much difficulty. Moreover, genetic counselling, which involves the communication process between physicians and patients in an attempt to deal with the occurrence or the risk of occurrence of genetic disorders in a family, has become widespread in the last several years. Mrs. Howard, having conceived in late 1971, might therefore have expected her obstetrician, at the minimum, to ascertain the fact of her background and, once having done so, to conduct a serum assay (blood test) and the amniocentesis procedure.

A tort action can be maintained to recover damages for prenatal injuries negligently inflicted regardless of whether the unborn child was viable or nonviable at the time of the injury, provided that it was born alive (Endresz v Friedberg, 24 N.Y.2d 478; Matter of Peabody [Chase Manhattan Bank-Holtzman], 5 N.Y.2d 541; Woods v Lancet, 303 N.Y. 349; Liebler v Our Lady of Victory Hosp., 43 A.D.2d 898; Kelly v Gregory, 282 App. Div. 542). Further, physicians have been held answerable in malpractice actions in connection with professional care before or during birth where the child was born with physical or mental defects (Libby v Conway, 192 Cal.App.2d 865; Seattle-First Nat. Bank v Rankin, 59 Wn.2d 288; Larrabee v United States, 254 F. Supp. 613) . In the context of the facts alleged here, the liability is fixed at the point when the defendant omitted to utilize the then accepted procedure for screening Tay-Sachs carriers.

In the usual negligence or malpractice case the matter would require no further discussion. However, the issues of whether the plaintiff mother has been directly injured by the defendant's alleged professional negligence, whether the damages resulting therefrom are capable of legal evaluation, and whether the potential use of a therapeutic abortion, in fact, gives rise to an action in "wrongful life" on behalf of the mother, obscure the essentially clear outlines of this negligence action. It is now settled that there may be recovery for injuries sustained solely as the result of an initial mental or psychological impact, if there is ensuing mental or physical injury (see Johnson v State of New York, 37 N.Y.2d 378; Tobin v Grossman, 24 N.Y.2d 609; Battalla v State of New York, 10 N.Y.2d 237; Ferrara v Galluchio, 5 N.Y.2d 16). The problem is whether the scope of the duty owed by the obstetrician here flowed directly to the mother or whether her role is more akin to that of a bystander to an accident who witnessed severe physical injury to a third person. In this perspective, it presents a case of first impression in our State. Unlike the interested bystander who witnessed serious injuries to her child (see Tobin v Grossman, supra), or the parents who suffered mental anguish when their son was the subject of an unauthorized circumcision (see Kalina v General Hosp. of City of Syracuse, 13 N.Y.2d 1023), the duty here was owed directly by the doctor to his patient, although the ultimate physical injury, not caused by the defendant but preventable by him, was inflicted upon a third party. The defendant owes a duty, in the sense of a potential liability for damages, only with respect to those risks or hazards which may potentially arise (see Dillon v Legg, 68 Cal.2d 728). As Judge CARDOZO wrote many years ago: "The risk reasonably to be perceived defines the duty to be obeyed". (Palsgraf v Long Is. R.R. Co., 248 N.Y. 339, 344.) The defendant's obligation turns on whether "the offending conduct foreseeably involved unreasonably great risk of harm to the interests of someone other than the the actor. * * * The obligation to refrain from * * * particular conduct is owed * * * with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous. Duty, in other words, is measured by the scope of the risk which negligent conduct foreseeably entails." (2 Harper James, Law of Torts, p 1018.) Recovery should be permitted if the defendant, in not employing a medically-sanctioned procedure to identify carrier parents, breached a duty, whether or not he could have foreseen the precise consequences of that omission (see Steitz v Gifford, 280 N.Y. 15, 20, supra). The injury suffered here admittedly was not as directly caused as was the emotional harm suffered by the daughter of a patient in a mental hospital who was erroneously informed that her mother had died (see Johnson v State of New York, 37 N.Y.2d 378, supra), but is no less direct than the psychological injury precipitated by the psychic trauma which arose when an office worker discovered her superior's suicide (see Matter of Wolfe v Sibley, Lindsay Curr Co., 36 N.Y.2d 505; cf. Hopper v United States, 244 F. Supp. 314). It cannot be said, therefore, that the causal relation between the original injury and the ultimate damage was so tenuous that the wrongdoer should be freed from liability for the wrong. After all, at the time of the alleged negligence the infant had not yet matured to the status of a viable fetus and the potential mother had the unqualified right to abort the pregnancy (see Penal Law, § 125.05; Roe v Wade, 410 U.S. 113).

The harm for which damages are now sought by the mother occurred at the time of the birth of the fatally flawed child, and the effect of that birth, with the ensuing physical deterioration, proximately resulted from the breach of duty arising during pregnancy when there was no such entity as Melisa Howard. Viewed in this light, the "wrongful life" issue is hardly relevant. We are not asking whether the infant would have preferred to choose between life in a handicapped state or whether not to have been born at all. By applying classic and time-tested concepts of tort law, we are merely drawing a line from an alleged omission, the result of which caused the plaintiff mother extreme mental anguish and suffering. Since an action in medical malpractice lies by a mother against a physician for his negligent failure to diagnose a pregnancy when she had no further desire to have children (see Ziemba v Sternberg, 45 A.D.2d 230, supra; Chapman v Schultz, 47 A.D.2d 806), similarly, a valid cause is stated here since the medically indicated abortion was merely the means by which the negligent act of the physician could have been corrected (see, also, Jackson v Anderson, 230 So.2d 503 [Fla]; Custodio v Bauer, 251 Cal.App.2d 303; Troppi v Scarf, 31 Mich. App. 240). Stated another way, the abortion is the end product of what should have been one of the options available to the mother if negligence had not intervened. This choice was never given to the infant, could never have been available to the fetus, and now rests solely with the parents, as sanctioned by our Penal Law and the Supreme Court of the United States.

No new duty is created to one who does not sustain any physical impact or fear for his own safety as a result of witnessing injury to a third person (cf. Tobin v Grossman, 24 N.Y.2d 609, 613, supra). Nor need this court expand a tort concept to include the mother of the Tay-Sachs child. Here, unlike what the Court of Appeals was asked to do in the Tobin case, the range of liability need hardly be extended in order to uphold the validity of the cause of action under review. In Tobin, the mother did not herself witness the accident though it occurred in her presence and she heard the screech of automobile brakes. Judge (now Chief Judge) BREITEL, in writing for the majority, noted (p 617) that the courts, for the most part, have refused to extend the duty of the negligent actor to cover the mother of the small child. However, unlike the Tobin case, where policy considerations caused the court to limit liability, no such limitation exists here. Unlike the eyewitness situation, which provided "no rational practical boundary for liability" (see Tobin v Grossman, supra, p 618), the injured plaintiff here was the sole subject of the defendant's treatment and was not an inadvertent, unknown and fortuitous observer. In the absence of this State's former public policy against abortion, there is no longer any compelling reason to inhibit the mother's action wherein she seeks relief because her physician negligently failed to advise her of the availability of a eugenic abortion.

Of paramount significance here is the fact that the defendant has moved to dismiss the first cause of action sounding in damages for emotional and mental anguish and has not attacked the sufficiency of that branch of the action which seeks reimbursement for medical expenses incurred as a result of the alleged malpractice. Thus, the defendant has impliedly conceded that the sole issue is whether the plaintiffs can establish damages, as a matter of law, for mental pain and suffering. It is this issue that has vexed the courts which have faced similar problems arising out of prenatal negligence (see Stewart v Long Is. Coll. Hosp., 35 A.D.2d 531, affd 30 N.Y.2d 695; Greenberg v Kliot, 47 A.D.2d 765, mot for lv to app den 37 N.Y.2d 707; Johnson v Yeshiva Univ., 53 A.D.2d 523; Gleitman v Cosgrove, 49 N.J. 22). In addressing itself to that issue, the Gleitman court wrote (supra, pp 29-30):

"A considerable problem is raised by the claim of injury to the parents. In order to determine their compensatory damages a court would have to evaluate the denial to them of the intangible, unmeasurable, and complex human benefits of motherhood and fatherhood and weigh these against the alleged emotional and money injuries. Such a proposed weighing is similar to that which we have found impossible to perform for the infant plaintiff. When the parents say their child should not have been born, they make it impossible for a court to measure their damages in being the mother and father of a defective child.

"Denial of the claim for damages by adult parents is also required by a close look at exactly what it is they are here seeking. The thrust of their complaint is that they were denied the opportunity to terminate the life of their child while he was an embryo. Even under our assumption that an abortion could have been obtained without making its participants liable to criminal sanctions, substantial policy reasons prevent this Court from allowing tort damages for the denial of the opportunity to take an embryonic life."

Similarly, this court, in Stewart v Long Is. Coll. Hosp. (supra), reasoned that no remedy exists for being born under a handicap when the only alternative is not to have been born at all. We concluded that no ascertainment of damages was possible because there was no method for placing a value on nonexistence (see, also, Williams v State of New York, 18 N.Y.2d 481; Aronoff v Snider, 292 So.2d 418 [Fla]; Zepeda v Zepeda, 41 Ill. App.2d 240; Jacobs v Theimer, 519 S.W.2d 846 [Tex], supra; Coleman v Garrison, 327 A.2d 757, supra; Rieck v Medical Protective Co., 64 Wis.2d 514). In Stewart, the plaintiff mother was a patient in the defendant hospital, having entered there as a result of advice given to her by the family physician, who was concerned that the child would be born with congenital birth defects since the mother had become afflicted with rubella early in pregnancy. Two of the four members of the hospital committee governing abortions were of the opinion that an abortion should be performed. No abortion was performed and, in effect, the plaintiff gave birth to a child who suffered serious mental and physical disabilities. After the trial, the court dismissed the infant's cause of action, but held that the mother could recover for the damages which she had suffered as a result of the hospital's failure to perform an abortion, and that the father could recover for the loss of services of his daughter and for his future obligations for medical treatment. This court, citing Gleitman, reversed the latter determinations, holding that no cause of action for "wrongful life" could have been established without legislative fiat and that "it would be virtually impossible to evaluate as compensatory damages the anguish to the parents of rearing a malformed child as against the denial to them of the benefits of parenthood" (Stewart v Long Is. Coll. Hosp., supra, p 532).

Leaving aside the question of damages for the moment, the Stewart case is quite unlike the case before us. In Stewart the parents were aware of the possible danger of rubella to the unborn child and no liability could therefore have been predicated in malpractice. Moreover, the causes of action were not dismissed until proof had been adduced at trial, whereas here it is merely the sufficiency of the complaint which is being tested. As such, all allegations contained in the complaint are deemed to be true for the purposes of this motion (see Cohn v Lionel Corp., 21 N.Y.2d 559, 562). Also, the public policy which at the time of the Stewart case condemned the proposed abortion to be an illegal one (see former Penal Law, § 80), is no longer the public policy of our State (see Penal Law, § 125.05; Roe v Wade, 410 U.S. 113, supra).

Subsequent to the passage of the statute permitting abortions and the decision in Roe v Wade, this court dismissed a complaint predicated upon the assertion by a mongoloid infant of his claimed right to have been "well born" (Greenberg v Kliot, 47 A.D.2d 765, mot for lv to app den 37 N.Y.2d 707, supra). The second cause of action on behalf of the infant's mother was predicated upon alleged physical and mental damages incurred, as well as the hardship and difficulty of bringing up a mongoloid child. It is significant to note that the motion to dismiss there was addressed solely to the infant's cause of action, and neither the Special Term nor this court ruled on the viability of the mother's prayer for relief. Consequently, since the passage of the legislation permitting abortion, there has been no case in this department which has held that the mother's cause of action for pain and mental anguish is insufficient as a matter of law. Rather, it appears that the judicial thrust on this point favors such a cause (see Ziemba v Sternberg, 45 A.D.2d 230, supra; Chapman v Schultz, 47 A.D.2d 805, supra).

The difficulty presented in a "wrongful life" action is that the court is asked to compare the relative valuations of life with defects and the "utter void of nonexistence" (see Gleitman v Cosgrove, 49 N.J. 22, 28, supra). It is contended that such compensation is impossible because there is no method by which one could place a valuation on nonexistence. Moreover, as the Gleitman court noted, the "preciousness" of human life outweighs the need for recovery (supra, p 31). In this society, which condemns a man who will take his own life, prohibits euthanasia, criticizes capital punishment and appreciates the precious value of a single human life, it is really another matter of public policy which determines whether a court will attempt to ascertain the value of a handicapped life as opposed to mere nonexistence. This is not the situation here for several reasons. Firstly, since Gleitman and Stewart, the Supreme Court and our Legislature have specifically condoned the right of the potential mother to abort her pregnancy if she so chooses. Moreover, the issue of nonexistence and placing an evaluation thereon is not before this court. What is here instead are the essential components of the usual negligence action — duty, cause and effect, proximate cause and damages. While there is, admittedly, difficulty in specifying and ascertaining the damages in mental pain and anguish, it should be no less difficult than the process utilized by our courts in evaluating pain and suffering, damage to reputation, infliction of mental suffering, etc. (see 22 ALR3d 1443). Indeed, several commentators would go further and even attempt to place a value on nonexistence in a "wrongful life" action (see 55 Minn Law Rev 58, 62-67; cf. Tedeschi, On Tort Liability for "Wrongful Life", 1 Israel L Rev 513).

Lastly, and most significantly, we are here concerned with the unique and startling results arising from the birth of a Tay-Sachs child. While not intending to discount the awesome emotional pain necessarily felt by parents of a handicapped child, including the malformed and retarded child born as a result of a rubella or a salmonella infection during pregnancy, the Tay-Sachs child is immediately doomed upon birth to a short and incredibly painful existence. There is presently no hope at all for recovery; nor can there ever be that intermittent moment of parental joy which parents of a mongoloid child must occasionally feel. The Tay-Sachs baby appears well at birth and develops normally for six to eight months and then progressive psychomotor degeneration slowly begins.

"The baby demonstrates progessive decreased awareness of his environment and decreased activity. By 18 months of age, the child is paralyzed and blind, unable to eat, becomes increasingly constipated, and develops decubitus ulcers. He subsequently exhibits frequent convulsions which increase despite anti-convulsant medication. There is progressive head enlargement because of the central nervous system accumulation of the gangliosides.

"The last few years of the child's short existence are spent in a vegetative state and death occurs between the age of 3 and 5 years, with an average life of 40 months. Death is usually due to intercurrent infections, including aspiration pneumonia."

It is evident then that the parents must inevitably suffer terrible mental anguish while caring for and attending to the doomed child, and while participating as witnesses to its tragic deterioration and death. The avoidability of parentage of a Tay-Sachs child has been considerably enhanced by the advent of the medical techniques described above. To deny Mrs. Howard the protection of our laws merely because the estimation of her emotional suffering provides the trier of the facts with a difficult chore does not conform to the essential doctrine of liability in tort which holds the wrongdoer to the full extent of his negligent act.

Tay-Sachs disease can be detected in the carrier parents, with a 25% probability that both parent carriers will produce a Tay-Sachs child. Statistics indicate that there is as little as a 10% chance of birth defects due to rubella. Given these statistics, it is not entirely clear whether a physician owes a patient the duty to perform or even advise, an abortion in a rubella case or that the pregnant mother will choose that alternative in order to prevent the possibility of a child born with birth defects. However, carrier parents may expect the birth of a Tay-Sachs child. Given this medical background, and recognizing the standard of care required of a physician, which includes the use of the knowledge and skill of an average member of the medical profession practicing in his community, that physician must be held accountable to the full extent of the proximately caused damages resulting from his negligence, no matter how difficult they are to ascertain (see Pike v Honsinger, 155 N.Y. 201; Carpenter v Blake, 75 N.Y. 12; Prosser, Law of Torts [3d ed], pp 165-168). Another view would merely serve to grant the physician undeserved immunity resulting from his own negligence. The Supreme Court of the United States, faced with a similar problem, noted: "Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate. The wrongdoer is not entitled to complain that they cannot be measured with the exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise" (Story Parchment Co. v Paterson Co., 282 U.S. 555, 563).

In a California case, the complaint alleged a separate cause of action by the infant's parents for their own mental and physical distress arising from defendant's negligence. The trial court's instructions, which allowed the parents recovery for physical or mental injury sustained in the course of caring for the child and responding to her needs, was upheld by the highest court of that State. However, an instruction which would have permitted recovery for injuries caused to the parents by the mere witnessing of the child's suffering was rejected (Capelouto v Kaiser Foundation Hosps., 7 Cal.3d 889; see, also, Dillon v Legg, 68 Cal.2d 728, supra; Amaya v Home Ice, Fuel Supply Co., 59 Cal.2d 295). In the Dillon case, the same court held that a parent may recover for witnessing a child's distress if the parent suffers actual physical injury. Our Court of Appeals has specifically rejected the eyewitness recovery doctrine in Tobin. However, the California court's decision is significant in that it allows some measure of recovery for physical or mental injury arising out of the witnessing of an injury to a third person. Since our Court of Appeals has specifically permitted recovery for harm sustained solely as a result of initial negligence caused by psychological trauma in the absence of physical injury (Johnson v State of New York, 37 N.Y.2d 378, supra), it naturally follows that once that injury is inflicted directly upon the plaintiff, the injured party may seek recourse since she was not a mere eyewitness or bystander to the injury caused to another. Inasmuch as it may be found that Mrs. Howard's injury was directly caused by the obstetrician's breach of duty, it follows that damages are recoverable for her emotional and mental anguish. She was in the "orbit of the duty" for the breach of which the wrongdoer may be held liable (see Palsgraf v Long Is. R.R. Co., 248 N.Y. 339, 343, supra). Additionally, the principal reason for denying recovery for emotional harm, the possibility of numerous fictitious claims, is not present here (see Tobin v Grossman, 24 N.Y.2d 609, supra).

The very nature of the child's condition makes certain that the mother and father will suffer grave emotional harm. In this type of case, the danger of a proliferation of fictitous claims is not present. Mrs. Howard has been damaged by the denial to her of the option to accept or reject a parental relationship with the child. Moreover, Mr. Howard is so directly concerned in that decision that he has been damaged as well. Despite the genuine difficulty of ascertaining the amount of the injury, the trier of the facts must be permitted to affix the price of the loss of that option. The physician should not be allowed to escape liability on the basis of either his personal scruples or the legal policy which requires him to inform a patient in other medical contexts merely because the court feels unequipped to specifically determine the extent of the injury. As noted by one commentator: "Further, the right of the parents to seek a lawful abortion and, if one is available, to make the final moral choice as to whether it is performed should be recognized. If the infant is to endure a life with defects, it must be because that was the moral choice made by his parents and not because they were given no alternative choice due to the negligence or private morality of a physician" (55 Minn Law Rev 58, 80-81, supra).

Accordingly, the order of the Special Term denying the defendant's motion to dismiss the first cause of action should be affirmed.

HOPKINS, Acting P.J., and HAWKINS, J., concur with TITONE, J.; MARGETT, J., dissents and votes to affirm the order with an opinion in which DAMIANI, J., concurs.

Order of the Supreme Court, Nassau County, dated January 15, 1976, reversed, on the law, without costs or disbursements, motion granted, and first cause of action dismissed.