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Plaintiff Brings Medical Malpractice Claim for Injury that Ended in Abortion


On 27 December 1971, a woman (the mother) underwent an abortion at a hospital during the course of which her uterus was perforated.

In June of 1973, she commenced a medical malpracticeaction which was ultimately settled in June of 1979 for $175,000.

On 3 June 1976, four years after the alleged malpractice and three years before it was settled, the infant plaintiff was born to the woman.

On 26 September 1978, the instant action was commenced on behalf of the infant plaintiff. A New York Injury Lawyer said it is contended that as a result of the alleged malpractice of defendants in negligently perforating the mother’s uterus, seven years prior to this lawsuit, plaintiff was born with a damaged brain.

Does a cause of action lie in favor of a child for injuries suffered as a result of a preconception tort committed against the mother?

Had the alleged negligence not occurred and the mother’s uterus not been perforated, would plaintiff have, in all likelihood, been born normal?

A Long Island Personal Injury Lawyer said the defendants’ alleged negligence made the difference between life in an impaired state and life in an unimpaired state.

When faced with a novel cause of action, sentiment should be put aside and the law must establish the rules ascribing liability in a manner which avoids the drawing of artificial and arbitrary boundaries. Though at the time the mother underwent an abortion in 1971 it was foreseeable that she would again conceive and that the health of children born thereafter could be adversely affected by damage to her uterus, this foreseeability alone does not establish a duty to plaintiff on the part of defendants. A Manhattan Personal Injury Lawyer said the court has held in a number of cases that foreseeability alone is not the hallmark of legal duty for if foreseeability were the sole test we could not logically confine the extension of liability.

Thus, were we to establish liability in this case, could we logically preclude liability in a case where a negligent motorist collides with another vehicle containing a female passenger who sustains a punctured uterus as a result of the accident and subsequently gives birth to a deformed child (birth injury or birth injury accident)? Unlimited hypotheses accompanied by staggering implications are manifest. The perimeters of liability although a proper legislative concern, in cases such as these, cannot be judicially established in a reasonable and practical manner.

The recognition of a cause of action under the circumstances of this case would have the undesirable impact of encouraging the practice of “defensive medicine”. A physician faced with the alternative of saving a patient’s life by administering a treatment involving the possibility of adverse consequences to later conceived offspring of that patient would, if exposed to liability of the magnitude considered in this case, undoubtedly be inclined to advise against the treatment rather than risk the possibility of having to recompense a child born with a handicap. Society as a whole would bear the cost of our placing physicians in a direct conflict between their moral duty to patients and the proposed legal duty to those hypothetical future generations outside the immediate zone of danger.

While the temptation is always great to provide a form of relief to one who has suffered, it is well established that the law cannot provide a remedy for every injury incurred. In defining the common law, it is the court’s duty to consider the consequences of recognizing a novel cause of action and to strike the delicate balance between the competing policy considerations which arise whenever tort liability is sought to be extended beyond traditional bounds.

The recognition of a cause of action under the circumstances would require the extension of traditional tort concepts beyond manageable bounds.

Accordingly, the order of the Appellate Division is affirmed and the complaint is dismissed.

Losing a loved one is a sad phase in one’s life. But when a loved one lives with deformities, it is far more heart-breaking. And if the deformities were for causes attributable to the negligence of another, the emotional pain is just unimaginable and could be too much for anyone to handle.

If you have been wronged and injured by negligent individuals, companies or entities, know your legal options. Contact Stephen Bilkis & Associates. We have the best New York Medical Malpractice Lawyers, New York Birth Injury Accident Lawyers, among others.

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