Plaintiff consulted defendant, a gynecologist, because she had not had a menstrual period for over three months and her “home pregnancy tests” were negative. A New York Injury Lawyer said that after a visual examination and with no blood or urine analysis, defendant informed her that she was not pregnant. Without explaining any of the attendant risks, he prescribed the hormonal drug Provera. When plaintiff had the prescription filled, she became aware–from the warning on the label and advice given by the pharmacist–that the drug was known to pose a serious risk of producing congenital defects in the child if ingested during early pregnancy. Relying on the defendant’s advice that she was not pregnant, plaintiff took the drug as prescribed. When menstruation did not occur, she consulted another gynecologist who ascertained from laboratory tests that she was indeed pregnant and cautioned her about the drug’s potentially harmful effects on a fetus in early stages. Fearing that these harmful effects had occurred, plaintiff and her husband elected to have the pregnancy terminated.
Plaintiff alleges that defendants’ negligence forced her either to risk having a congenitally defective child or to submit to an abortion in violation of her “personal, moral and religious convictions”. She seeks damages for her physical, psychological, and emotional injuries resulting from the abortion and from having to decide whether to undergo it.
The court rules that the complaint and affidavits sufficiently define a cause of action in medical malpractice for the physical and emotional injuries suffered by plaintiff as a result of defendants’ negligence in rendering medical services to plaintiff, and, thereby, breaching their duty of care owed directly to her.
Plaintiff is not seeking to recover for emotional distress resulting from injuries inflicted on the fetus. The breach of duty claimed by plaintiff is the defendant’s failure to perform a pregnancy test before advising her that she was not pregnant and before prescribing a drug with potentially harmful side effects if taken during early pregnancy. It is the erroneous advice that she was not pregnant and not an injury to a third person as in which, plaintiff asserts, led to the actions directly causing her injuries: her ingestion of the dangerous drug and her decision to terminate the pregnancy to avoid the drug’s harmful effects. It is not an effort by plaintiff to assert a claim for damages on behalf of her unborn child for injuries done to it or a claim for damages based on plaintiff’s emotional and psychological stress in witnessing and knowing of the injury to the fetus and its loss.
A Long Island Personal Injury Lawyer said the general rule is that an intervening act which is a normal consequence of the situation created by a defendant cannot constitute a superseding cause absolving the defendant from liability. Thus, a reasonable attempt to avoid the danger created by a defendant’s conduct–an action that should certainly be considered a “normal consequence” of that conduct–cannot amount to a superseding act which breaks the chain of causation.
A Manhattan Personal Injury Lawyer said applying these rules here and assuming the truth of the allegations in the complaint, it is apparent that plaintiff’s “choice” to have an abortion cannot be said to be, as a matter of law, a superseding cause.
As the complaint alleges, the physician’s negligent diagnosis and treatment were the precipitating causes of all that followed; but for the gynecologist’s conduct, plaintiff would not have been in the position of having to choose between two objectionable alternatives: undergo an abortion or risk having a baby with serious birth defects (birth injury or birth injury accident). That plaintiff made the very choice forced upon her by defendants’ negligence cannot insulate them from legal responsibility for such conduct.
The case presents a malpractice action based on medical advice which put plaintiff in the position of having to make decisions and take actions which caused her physical and emotional injuries.
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