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Plaintiff Claims Amniocentisis Caused Child’s Death, New York Court Dismisses Complaint


A 35-year old woman came to an obstetrician asking him to care for her during her pregnancy. A New York Injury Lawyer said the obstetrician noted the advanced age of the mother and suggested that the woman undergo an amniocentesis to rule out any genetic abnormalities in the child. On July 30, 1980, when the woman was into her 16th week of pregnancy, the obstetrician performed the amniocentesis.

The amniotic fluid sample could not be processed by the laboratory because the fluid contained an excessive amount of blood. Weeks later during a routing pre-natal check-up, the obstetrician could not detect the fetal heartbeat.

The woman then went to another obstetrician who told her that her fetus died while in the womb. On September 6, 1980, the lady was induced to go into labor in order to expel the dead fetus. When the fetus was expelled, the second obstetrician noted that the body of the fetus had three puncture marks with blood clots. The second obstetrician then told the woman that it was his opinion that the puncture wounds on her baby was caused by the amniocentesis performed by the first obstetrician.

The woman filed a case for medical malpracticeagainst the first obstetrician alleging that his negligence in performing the amniocentesis caused her baby’s death. The woman however did not allege any physical injury sustained by her other than the pain and suffering sustained by the fetus. She sought to recover for her pain, severe disappointment, anxiety, despondency, bitterness and suffering.

The obstetrician moved for summary judgment alleging that the fetus was not considered under the law as a “person” capable of suing until it is born alive. Since the fetus was born dead only at 16 weeks, it had no personal capacity to sue. The woman also did not allege any particular physical pain she suffered, such that any consequent emotional pain and suffering she may have had cannot be the basis for recovery of damages.

The trial court granted the motion for summary judgment and dismissed the complaint. A Long Island Personal Injury Lawyer said the woman then appealed to the Supreme Court. The only question she presents before the Court is whether or not the summary judgment dismissing her complaint was proper.

The Court ruled that although they sympathize with the woman, the law is clear that she cannot recover damages for her emotional distress if she fails to allege any physical injury directly sustained by her as a result of the obstetrician’s medical malpractice or negligence.

A Manhattan Personal Injury Lawyer said that although it is clear that the obstetrician committed an injury to the fetus, the fetus was not yet a “person” in contemplation of law that can sue for the pain and injury it sustained. The sixteen-week old fetus has no personality or existence apart from its mother but it is not a body organ or a member of its mother such that injury to the fetus should be considered as injury to the mother. The mother’s pain and suffering at the loss of her baby and at its stillbirth, while real, is not the same as the pain and suffering of the fetus itself. Thus, the loss of the woman’s child while extremely emotionally devastated is not a legal injury for which damages can be recovered. The obstetrician owed a legal duty to care for the pregnant mother but had not legal duty to care for the fetus, thus, the woman should have alleged direct physical pain suffered by her and not just by her fetus.

The Court upheld the trial court’s dismissal of the complaint.

A New York City Medical Malpractice Lawyer has the duty to allege negligence on the obstetrician’s part or, to allege that the obstetrician committed a medical malpractice by deviating from accepted medical practice. A New York Medical Malpractice Attorney has also to allege that the negligence or medical malpractice of the doctor directly resulted injury to the pregnant woman in his care. At Stephen Bilkis and Associates, their NY Medical Malpractice lawyers will assist you by making sure you have a viable cause of action for negligence or medical malpractice. Call Stephen Bilkis and Associates at any of their offices in the New York area.

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