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New York Appellate Court Discusses Concept of “Wrongful Conception” in Birth Injury Case


A thirty-seven year old woman got pregnant in 1974. When she and her husband learned that she was pregnant, they engaged obstetrical specialists. They treated her and cared for her during the rest of her pregnancy. These specialists also delivered her baby on May 10, 1975.

The baby girl was born with Down’s syndrome. The parents brought suit against the specialists for negligence and for medical malpracticeclaiming that they should have known that women over thirty-five years old (such as the pregnant lady here) have a much higher risk of giving birth to infants with Down’s syndrome. As specialists, they should have taken care of the pregnant lady and advised her to undergo amniocentesis. This is a test where a needle is inserted through the mother’s navel and a sample of the amniotic fluid is drawn and tested for its chemical and DNA properties. A scrutiny of the fluid can detect if the baby has chromosomal defects that would signal that the baby has Down’s syndrome.

A New York Injury Lawyer said the parents sued the obstetrical specialists for negligence and medical practice in behalf of their child. They also included in their complaint a cause of action for actual damages. They are asking that the doctors pay for what they may need to spend for the institutional care of their child. They also included in their complaint a cause of action for damages to the parents. They contend that the obstetricians’ negligence and medical malpractice caused them emotional harm when their child was born with Down’s syndrome.

The obstetric specialist filed a motion asking that the complaint be dismissed for failure to state a cause of action. The doctor alleges that the complaint seeks damages for an injury which is not legally cognizable as compensable. He claims that the suit in negligence and medical malpractice is actually a wrongful life suit which is not an actionable wrong.

The only question presented to the Supreme Court, according to a Nassau County Personal Injury Lawyer is whether or not the complaint should be dismissed for failure to state a cause of action. The Supreme Court found that the part of the complaint which was brought by the parents in representation of their infant and which seeks damages for the wrongful birth of a retarded child should be dismissed. The parents’ suit for emotional harm caused by the birth of a retarded child should also be dismissed. Only the suit for the actual damages they will incur in the institutional care of their child survived as a suit which states a cause of action.

The Court declared that for the purpose of reviewing the sufficiency of the complaint, the allegations of the complaint must first be assumed to be true. A Queens Personal Injury Lawyer said that the Court presumed for the sake of argument that the doctors were indeed negligent and committed a medical malpractice in failing to advice the pregnant lady that there is a test available to determine whether the baby had Down’s syndrome. And the Court also presumed that had they been informed, they would have had the fetus aborted.

The Court also ruled that resolving cases of this nature cannot include only the mechanical application of legal principles but must include the application of public policy.

The Court also explained that causes of action for “wrongful birth” are classified into “wrongful conception” where the pregnant lady tried to have an abortion but the abortion was unsuccessful and the child born is either born healthy but unwanted, or the child is born unhealthy and unwanted. There is also the classification of “wrongful diagnosis” where a pregnancy was wrongly diagnosed and the mother was deprived of the right to terminate the pregnancy within the allowable period.

This case does not fall into these two categories. In this case a mentally impaired child brings suit to recover damages for the injury she suffered as a consequence of her birth as a stigmatized child. Here, the pregnancy was not unwanted; the child was fully intended but the child born needs extraordinary care and treatment. There is no claim that the doctor’s negligence or medical malpractice caused the child’s impairment. The Court ruled that the child did not suffer a legally cognizable injury because there is no law that gives every child the right to be born whole or healthy.

The calculation of damages would be speculative and the Court is not equipped to make that calculation. Damages are supposed to restore a person to his original position prior to the negligence. What amount of damages can be given to restore a child to his previous state, which is, that he should not have been born?

The emotional distress caused by the birth of an impaired child cannot be recognized either as there is no law that guarantees parents that every child they conceive shall be born healthy. The distress caused by the birth of a child that is impaired is real but it is not legally compensable.

A skilled attorney needs to prove negligence or breach of a duty of the doctor to care for his patient.They also need to prove that the doctor deviated from accepted medical malpractice and the deviation is the cause of the injury to the child or to the mother. At Stephen Bilkis and Associates, qualified lawyers can sit with you and assess the facts of your case to determine the viability of a medical malpractice suit. Call Stephen Bilkis and Associates today and ask for their advice or assistance, they are more than happy to help ensure that you are justly compensated for any valid legal claims you have.

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