A couple of Jewish and Eastern European descent sued an obstetrician-gynecologist

Posted On: April 15, 2012 by Stephen Bilkis

A couple of Jewish and Eastern European descent sued an obstetrician-gynecologist for medical malpractice because their child was born with Tay-Sachs. Tay-Sachs is a hereditary disorder of the nervous system that is carried by those of Jewish Eastern European descent. It is the couple’s contention that the obstetrician-gynecologist while looking after and examining the wife during her pregnancy should have known that they were prime candidates to be carriers of the dread genetic disease. They insist that the obstetrician-gynecologist should have ordered them tested and their fetus screened for it. For had the couple known that they were carriers and that their baby had the gene responsible for the Tay-Sachs disease, they would have aborted the baby to prevent the extreme pain and suffering the child underwent. Their child was born on August 21, 1972 and died even before reaching age 2 on June 26, 1974.

The parents sued the obstetrician-gynecologist for damages for the personal injury consisting of emotional distress at their child’s suffering and her death; they also sued for the pain and anguish they felt at her untimely death. They also ask for compensation for their baby’s medical, hospital, nursing and funeral expenses.

The obstetrician-gynecologist moved for the dismissal of the case stating that the parents do not have any right to be compensated for the pain and suffering of their child.

The trial court denied the motion to dismiss filed by the obstetrician-gynecologist and ordered the payment of damages to the parents.

The only questions in this appeal are: whether or not the trial court erred when it denied the obstetrician-gynecologist’s motion to dismiss; and whether or not the couple is entitled to compensatory damages for the pain and suffering of their child.

The Court held that under the law, in order for the parents to recover damages for their own personal emotional harm, there must be a showing that the doctor had a duty to them that he failed or refused to do and that as a direct result of the doctor’s failure or refusal to fulfill that statutory duty, the parents themselves were directly injured.

In this personal injury suit, the doctor may or may not have treated the wife or advised her according to the standards of his profession. The couple may have sustained injury but the personal injury they are claiming damages for is for the suffering of their child. This is at best indirect harm. Only a very small part of the indirect personal harm they may have suffered can be attributed to the alleged negligence of the doctor here.

The Court noted that every mother who bears a child stands to be hurt if their child died but this is a natural risk of life and child bearing. The law establishes liability only when a person is directly or intentionally harmed by the acts of others. Here, the child’s suffering may be compensable but the indirect suffering of the parents stemming from the suffering and death of the child cannot be compensable.

The Court also observed that while the parents do have a statutory right to abort their fetus had they known that their child would inevitably suffer and die due to Tay-Sachs, the compensatory damages they are asking for cannot be determined by the court. They are, in effect, asking the court to put a price on the immeasurable and intangible benefits of parenthood that were deprived them because of the death of their child. The parents here contend that their child should not have been born had the doctor done his job. The Court is at a loss to measure the grief of parents who give birth to a defective child. It is impossible for the court to assign a pecuniary value in damages for the anguish to the parents of a child who was born with a fatal disease. Damages which are uncertain and speculative cannot be a basis for recovery.

The Court saw a case from New York City and Westchester resolved to dismiss that part of the complaint of the parents for their own emotional injury but sustained that part of the complaint for the child’s own suffering.

A New York City Birth Injury Attorney has the duty of suing the physician who was negligent in the performance of his duty to his patient. A New York City Birth Injury Lawyer has the duty to allege not only the personal injury for the pain and suffering sustained by the child but also the personal injury for the pain and suffering of the parents of the child. At Stephen Bilkis and Associates, New York Birth Injury attorneys are ready to assist parents in evaluating the viability of a suit against their doctor. A NY Birth Injury lawyer must make sure that the doctor is held to account for his failure to fulfill his duty as a medical professional. Call Stephen Bilkis and Associates today; ask to confer with any of their NY Birth Injury attorneys today.