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Plaintiff Appeals Dismissal for Birth Injury Claim in NY Appellate Court


A thirty-seven year old woman consulted an obstetrician/ gynecologist. She had a thyroid condition and had given birth to a deformed child. She specifically went to this obstetrician for him to inform and advise her on the risk of having another deformed child if she were to get pregnant again. Knowing all this background information, the obstetrician did not inform the woman about amniocentesis, a test which draws amniotic fluid from the mother and testing it for markers for genetic or chromosomal abnormality. The doctors did not give her any advice whatsoever as to how to determine if the child she was carrying would also be deformed.

According to a New York Injury Lawyer, as a result of the lack of information, the woman continued her pregnancy and eventually gave birth to a child with Down’s syndrome. She sued the doctors for negligence, medical malpractice, lack of informed consent, breach of contract and wrongful life. The woman claimed damages for her pain and suffering at having delivered an impaired child; she claimed damages for the extraordinary cost of caring and supporting the impaired child. The husband also included a cause of action for loss of income as a result of the child’s deformity, loss of consortium and for his own pain and anguish. The woman filed a separate cause of action on behalf of their child, seeking damages for his own pain and suffering for the burden of living life impaired.

The obstetrician filed a motion for summary judgment asking for the dismissal of all the causes of action and alleging that there are no material issues of fact that need to be tried. A Nassau County Personal Injury Lawyer said the Court granted the motion and dismissed the wife’s cause of action for her pain and suffering; the cause of action for the husband’s pain and suffering and loss of income; the cause of action for lack of informed consent and for breach of contract; the cause of action for the wife’s development of breast cancer due to the stress; and the claim for punitive damages in behalf of the child.

The plaintiffs appealed the dismissal. A Queens Personal Injury Lawyer said the Court upheld the dismissal only in part it ruled that the parents suffered harm from the failure and negligence of the doctor to administer a test to her. Thus, she can claim for her own pain and suffering.

The Court ruled that while it is legally possible to maintain a suit in damages for medical malpractice against a doctor who fails to properly diagnose a pregnancy which prevented a mother from timely aborting the child. Here, the source of the claim is not the child’s injury, but the injury sustained by the mother when the doctor failed to perform his duty to care for the mother as her obstetrician. The doctor, as the person responsible for the injury must respond for all damages which are natural consequences of the wrongful act he committed.

The wrongful birth cause of action was properly dismissed because the parents sought damages for the birth of the child itself. Recognizing this claim would mean that the court will rule that the child was placed in a worse position for having been born due to the medical malpractice of the doctor. The Court ruled that it cannot affix a price on the how much better off the child would be had it not been born.

The father’s suit in damages is a derivative cause of action. As such, it can only exist if the child’s right to be compensated also exists and is also compensable. As the Court had already ruled that the child’s claim for wrongful birth is not a legally compensable injury, then the father’s derivative cause of action must also fail.

The woman cannot sue for lack of informed consent as this is reserved for those doctors whose medical malpractice involved surgery, injection or any invasive procedure that he performed without first obtaining the consent of the patient who was injured. For this cause of action to survive, the woman must allege that the doctor performed surgery on her which he clearly did not. The basis of the claim is the doctor’s failure to do a duty. This cause of action was also rightly dismissed.

A skilled attorney has to prove a doctor’s duty of care that the law or his profession imposes on him; he also has to prove the doctor’s failure or breach to perform that duty of care. An attorney may also prove that in performing the duty of care, the doctor deviated from generally accepted medical standards. Without allegations such as these, there is no viable cause of action for medical malpractice. Call Stephen Bilkis and Associates today for a free consultation. Ask them to evaluate the facts of your case to see if you have a viable cause of action for medical malpractice.

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