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Drug Given During Pregnancy Results in Severe Birth Defects, NY Appellate Court Denies Defendant’s Motion to Dismiss


A woman, her husband and their child sued a global drug manufacturer, a physician and a hospital for medical malpractice. In the first action, the complainants allege six causes of action seeking a total of $30,000,000.00 in damages, claiming that during her pregnancy, the woman ingested a drug manufactured and distributed by the pharmaceutical company. The drug was administered to her by the accused physician and resulted to her child’s delivery by Caesarean section at the accused hospital. The child was born without limbs. The complainants allege the drug manufacturer with negligent manufacture, testing, advertising, drug safety representation and improper usage instructions. They further allege that the manufacturer knew or should have known that the drug is unsafe and unfit for use due to its dangerous side effects, contraindications and insufficient testing. In addition, the complainants allege breach of warranties, violation of statutory duties and strict tort liability. The claims against the physician and the hospital are based on professional care negligence, diagnosis, treatment, surgery and after care rendered to the child.

Parenthetically, A New York Injury Lawyer said that the drug is a progesterone hormone medicine intended to prevent miscarriage. The record before the court shows that the woman had three pregnancies. Her first pregnancy was terminated in the birth of a stillborn child at the accused hospital, another was terminated by miscarriage and her third pregnancy gave birth to the complainant child. The woman received injections of the said drug weekly for five months and monthly thereafter until her child’s birth. The injections were administered by the accused physician.

The second action was commenced by the woman and her husband against the same accused parties. The complaint in the second action alleges ten causes of action against the accused parties, nine of which are the subject of the accused parties’ motions to dismiss. A Long Island Personal Injury Lawyer he first cause of action is negligence and the allegations are similar to the allegations of negligence against the accused parties in the first action. The second cause of action by the husband against the drug manufacturer asserts the same allegations of injuries as his wife, except for the phrase fear for her own well- being and health, which appears in the first cause. The husband claims damages as well for medical expenses of his daughter, his wife and himself. The third cause of action on behalf of both complainants against the drug manufacturer and the physician is based on breach of warranties in that it is alleged that the accused parties represented and warranted that the drug was safe and fit for use as a therapeutic drug, of merchantable quality, without side effects that may cause danger to life and the limb. It is claimed that the representations and warranties were false.

The fourth and fifth causes of action by the woman and her husband are for violation of statutory duties and strict tort liability, respectively, against the drug manufacturer and the physician. A Queens Personal Injury Lawyer said the sixth cause of action by the woman is against the physician and the hospital for professional negligence in the care, diagnosis, treatment, surgery, discharge and aftercare of the woman, including the use of the drug by the physician and the hospital’s failure to discover and treat the woman’s condition caused by the physician.

The seventh cause of action by the husband against the physician and the hospital is for the professional negligence alleged in the sixth cause, the birth of his daughter without limbs, resulting in the same injuries and damages also alleged in the second cause. The eighth and ninth causes of action by the couple are against all the accused. Each complainant is claiming derivatively for the loss of services of the other and seeking $1,000,000.00. In the ninth cause, the husband also claims loss for medical expenses for his wife. The tenth cause of action by the couple is against the physician and the hospital for failure to inform the woman of the dangers in medical treatment and injections of the drug and failure to receive informed consent.

Essentially, the second action of the complainants are seeking damages for claimed injuries to their nervous systems and emotional damage, personality changes and extreme mental anguish occasioned by the birth of their daughter without limbs and with other serious and permanent injuries and congenital defects due to the woman’s ingestion of the drug during her pregnancy.

The accused parties argue that no such claims may be asserted and New York has repeatedly denied recovery for mental and emotional injuries suffered by another regardless of the relationship. Accordingly, the drug manufacturer seeks the dismissal of the complainant’s first, second, third, fourth, fifth, eighth and ninth causes of action of the second action. The physician, by cross-motion, seeks the dismissal of the third, fourth, fifth, sixth, seventh, eighth and ninth causes of action. The accused parties move on the grounds of legal insufficiency and that the causes of action do not state a cause of action as a matter of law.

On a motion to dismiss, the court must assume the truth of the allegations contained in the causes of action under attack. The pleader is entitled to every favorable inference that might be drawn from the pleading. Thus, the negligence, breach of warranties and other violations of duty owed to the complainants are all assumed, as well as their claims of damage resulting therefrom.

Each of the parents sought recovery for the pain, suffering and mental anguish incident to the delivery of the child and also that caused by the birth of their child in an impaired condition. The Special Term court dismissed the individual claims of the parents for mental anguish resulting from the birth of a child in an impaired condition.

Turning to the instant case, where the harm is more direct, the court is persuaded that the parents have pleaded valid causes of action, which are hereby sustained. As was to be expected, the court has now been presented with a pleading which takes us one giant step further along the path towards judicial recognition of the need to permit recovery in these tragic cases. A questionable principle, denying recovery for emotional injuries to a mother-bystander to an accident involving her child, can have no reasonable application to the facts as presented.

The woman and her husband are not bystanders on the situation. As alleged, it was as the direct result of the numerous injections of the drug administered by the physician to the mother during her pregnancy that made her gave birth to a deformed child. Such condition of the child is direct harm to the complainants caused by the negligence of and breach of duty of the accused parties owed to the woman, her husband and their child. The harm was not birth injury or as a result of birth but while the fetus was developing in the mother’s womb. Furthermore, the woman has alleged fear for her own well-being and health as a result of her ingestion of the drug. If the injections of the drug were the direct and proximate cause of the birth injury of the child, the court will permit both the woman and her husband to prove whatever other injuries it may have caused or produced, as a natural consequence of the wrongful act. The accused parties’ motions are denied in all respects.

Drugs and medicines are formulated to protect and cure people from sickness when taken accordingly, otherwise speak your lawsuit options with an experienced attorney. When a medical professional commits mistake in administering drugs especially during pregnancy of a patient and fail to acknowledge what harm it may cause, feel free to contact the office of Stephen Bilkis and Associates and speak with our legal team for guidance.

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