## Facts

- Patrick Draper was born on April 18, 1982, at St. Peter’s Hospital in New Brunswick, New Jersey.
- During pregnancy, Draper was in a frank breech position with a large cranial vault; the obstetrician, Dr. Edward A. Jasionowski, knew this before delivery.
- Draper’s mother, Valerie Cissou, signed consent forms addressing both vaginal and cesarean delivery.
- Dr. Jasionowski proceeded with a vaginal breech delivery; Draper alleged the physician did not adequately disclose the cesarean alternative or allow the mother to choose the mode of delivery based on full disclosure.
- The delivery was complicated by a torn umbilical cord; Draper’s expert attributed anemia, hypoxia, and neurological injury to severe blood loss from the tear.
- Draper was born with bilateral Erb’s palsy and alleged that cesarean delivery would have prevented the injury.
- After reaching adulthood, Draper sued, asserting that the physician’s failure to obtain his mother’s informed consent regarding delivery method caused prenatal injuries.
- The trial court granted summary judgment to Dr. Jasionowski on the informed-consent theory, reasoning the fetus could not consent and therefore had no independent informed-consent claim.

## Issues

1. Whether New Jersey recognizes an independent cause of action by an adult child against an obstetrician for prenatal injuries allegedly caused by the physician’s failure to obtain the mother’s informed consent regarding the mode of delivery.
2. Whether the fetus’s inability to consent bars liability where the asserted breach is the physician’s failure to disclose material risks and reasonable alternatives to the mother.
3. Whether summary judgment was proper where the plaintiff produced evidence that fuller disclosure could have led to a different delivery choice and avoided injury.

## Decision

- The Appellate Division reversed the grant of summary judgment for Dr. Jasionowski.
- The court held New Jersey recognizes an independent cause of action for an infant, upon reaching majority, for prenatal injuries caused by delivery where the physician failed to obtain the mother’s informed consent.
- The court concluded the inability of the fetus to give consent does not negate a physician’s duty of disclosure in obstetrical care when fetal injury is a foreseeable consequence of nondisclosure.
- The case was remanded for trial because the record, including expert support, could permit findings of breach and causation.

## Legal Principles

- Informed consent in New Jersey is treated as a negligence-based medical malpractice theory grounded in a physician’s duty to disclose material risks and reasonable alternatives.
- In obstetrical treatment, the physician owes a duty of care that extends to the fetus in utero as well as to the pregnant patient.
- The mother is the person who gives consent, but the physician’s disclosure duty may be owed for the protection of both mother and child; a breach can support the child’s independent claim if prenatal injury results.
- A child who sustains prenatal injury allegedly caused by an informed-consent breach may bring an independent action upon reaching majority, rather than being limited to the mother’s claim.
- Where evidence supports that adequate disclosure could have led the mother to choose a different course (e.g., cesarean rather than vaginal breech delivery) and thereby avoided injury, summary judgment is inappropriate.

## Conclusion

The Appellate Division recognized an adult child’s independent claim for prenatal injury based on an obstetrician’s failure to secure the mother’s informed consent about delivery options, reversed summary judgment for the physician, and remanded for trial on breach and causation.


Draper v. Jasionowski, 858 A.2d 1141 (N.J. Super. Ct. App. Div. 2004)