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On September of 1974, a woman (1st plaintiff-wife), 37 years of age, conceived a child.

In September of 1974, a woman (1st plaintiff-wife), 37 years of age, conceived a child. After the woman and her husband learned of the pregnancy in October, they engaged the services of defendants, specialists in the field of obstetrics and gynecology. Thereafter, from approximately the tenth week of pregnancy until the birthof their child, the pregnant woman remained under defendants’ exclusive care.

On 10 May 1975, the woman gave birth to a retarded and brain-damaged infant who suffers, and will continue to suffer for the remainder of her life, from Down’s Syndrome, commonly known as mongolism.

The plaintiffs claim that throughout the period during which the 1st plaintiff-wife was under the care of the defendants, plaintiffs were never advised by the defendants of – the increased risk of Down’s Syndrome in children born to women over 35 years of age and the availability of an amniocentesis test to determine whether the fetus carried by the 1st plaintiff-wife would be born afflicted with Down’s Syndrome.

Hence, plaintiffs (1st plaintiff-wife and 1st plaintiff-husband) commenced this action seeking – damages on behalf of the infant for “wrongful life”, and, in their own right, for the various sums of money they will be forced to expend for the long-term institutional care of their retarded child; damages for the emotional and physical injury suffered by the plaintiff-wife as a result of the birth of her child; and damages for the injury suffered by the plaintiff-husband occasioned by the loss of his wife’s services and the medical expenses stemming from her treatment.

Meanwhile, in June of 1969, in the companion case, another woman (2nd plaintiff-wife) gave birth to a baby who, afflicted with polycystic kidney disease, died only five hours after birth. Concerned with a possible reoccurrence of this disease in a child conceived in the future, the woman and her husband consulted defendants, the obstetricians, who treated the wife during her first pregnancy, to determine the likelihood of this contingency. In response to 2nd plaintiffs’ inquiry, defendants are alleged to have informed plaintiffs that inasmuch as polycystic kidney disease was not hereditary, the chances of their conceiving a second child afflicted with this disease were “practically nil”. Based upon this information, the 2nd plaintiffs alleged that they exercised a conscious choice to seek conception of a second child; as a result, the wife again became pregnant and gave birth in July 1970 to a child who similarly suffered from polycystic kidney disease. Unlike their first child, however, plaintiffs’ second child survived for two and one-half years before succumbing to this progressive disease.

The 2nd plaintiffs allege that contrary to defendants’ advice polycystic kidney disease is in fact an inherited condition, and that if they had they been correctly informed of the true risk of reoccurrence of this disease in a second child, they would not have chosen to conceive.

Hence, the 2nd plaintiffs commenced this action seeking – damages on behalf of the infant for “wrongful life” and, in their own right, for the pecuniary expense they have borne for the care and treatment of their child until her death; damages for the emotional and physical injuries suffered by the 2nd plaintiff-wife as the result of the birth of her child; damages for emotional injuries and expenses suffered by the 2nd plaintiff-husband; damages for the injury suffered by the plaintiff-husband occasioned by the loss of his wife’s services; and damages on behalf of plaintiffs, as administrators of their child’s estate, for wrongful death.

Do the complaints state cognizable causes of action that the court may rule upon?

A thoughtful analysis of the validity of “wrongful life” as an emerging legal concept requires, in the first instance, a clear understanding of the alleged wrong upon which the cause of action is predicated. Not surprisingly, the term “wrongful life” has functioned as a broad umbrella under which plaintiffs alleging factually divergent wrongs have sought judicial recognition of their claims. To be distinguished from the cases before us are those in which recovery is sought for what may perhaps be most appropriately labeled “wrongful conception”, wherein parents, one of whom has undergone an unsuccessful surgical birth control procedure, have sought damages for the birth of an unplanned child. There, damages have not been sought on behalf of the child a healthy and normal infant but by the parents for expenses attributable to the birth, including the pecuniary expense of rearing the child. Judicial reaction to the “wrongful conception” cause of action has been mixed.

Plaintiffs’ complaints sound essentially in negligence or medical malpractice. As in any cause of action founded upon negligence, a successful plaintiff must demonstrate the existence of a duty, the breach of which may be considered the proximate cause of the damages suffered by the injured party.

An examination of plaintiffs’ complaints leads to the conclusion that, insofar as plaintiffs allege claims on behalf of their infants, whether denominated as claims for wrongful life or otherwise, they have failed to state legally cognizable causes of action.

There are two flaws in plaintiffs’ claims on behalf of their infants for wrongful life. First, it does not appear that the infants suffered any legally cognizable injury. There is no precedent for recognition of “the fundamental right of a child to be born as a whole, functional human being”. Surely the use of somewhat similar words in another context affords no such basis. Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians. Second, the remedy afforded an injured party in negligence is designed to place that party in the position he would have occupied but for the negligence of the defendant. Thus, the damages recoverable on behalf of an infant for wrongful life are limited to that which is necessary to restore the infant to the position he or she would have occupied were it not for the failure of the defendant to render advice to the infant’s parents in a nonnegligent manner. The theoretical hurdle to an assertion of damages on behalf of an infant accruing from a defendant’s negligence in such a case becomes at once apparent. The very allegations of the complaint state that had the defendant not been negligent, the infant’s parents would have chosen not to conceive, or having conceived, to have terminated rather than to have carried the pregnancy to term, thereby depriving the infant plaintiff of his or her very existence. Simply put, a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependent upon a comparison between the choice of life in an impaired state and nonexistence. This is a comparison the law is not equipped to make.

Accordingly, the court rules that the plaintiffs’ complaints insofar as they seek damages on behalf of their infants for wrongful life should be dismissed for failure to state legally cognizable causes of action. Recognition of so novel a cause of action requiring, as it must, creation of a hypothetical formula for the measurement of an infant’s damages is best reserved for legislative, rather than judicial, attention.

On the validity of plaintiffs’ causes of action brought in their own right for damages accruing as a consequence of the birth of their infants. There can be no dispute at this stage of the pleadings that plaintiffs have alleged the existence of a duty flowing from defendants to themselves and that the breach of that duty was the proximate cause of the birth of their infants. That they have been damaged by the alleged negligence of defendants has also been pleaded. Unlike the causes of action brought on behalf of their infants for wrongful life, plaintiffs’ causes of action, also founded essentially upon a theory of negligence or medical malpractice, do allege ascertainable damages: the pecuniary expense which they have borne, and must continue to bear, for the care and treatment of their infants. Certainly, assuming the validity of plaintiffs’ allegations, it can be said in traditional tort language that if it weren’t for the defendants’ breach of their duty to advise plaintiffs, the latter would not have been required to assume these obligations. The fact that plaintiffs’ wrongful life claims brought on behalf of their infants do not state legally cognizable causes of action inasmuch as they fail to allege ascertainable damages in no way affects the validity of plaintiffs’ claims for pecuniary loss. Plaintiffs’ causes of action are predicated upon a breach of a duty flowing from the defendants to themselves, as prospective parents, resulting in damage to plaintiffs for whom compensation may be readily fixed. However, this does not mean that plaintiffs may actually recover for psychic or emotional harm alleged to have occurred as a consequence of the birth of their infants in an impaired state (birth injury or birth injury accident). While sympathetic to the plight of the parents, the court declines, for policy reasons, to sanction the recovery of damages. To permit recovery would have “inevitably led to the drawing of artificial and arbitrary boundaries.”

To permit plaintiffs to recover for pecuniary loss while precluding recovery for alleged emotional injuries suffered as a result of their infants’ birth does not run counter to this court’s decision

We had little difficulty in concluding that the psychological impact resulting from a daughter’s receipt of a notice incorrectly indicating that her mother had expired would be debilitating. That a daughter might receive such notice with mixed emotions lacks any rational basis in human experience. The same cannot be confidently said with respect to the birth of a child, the conception of which was planned and fully desired by the parents. To be sure, parents of a deformed infant will suffer the anguish that only parents can experience upon the birth of a child in an impaired state. However, notwithstanding the birth of a child afflicted with an abnormality, and certainly dependent upon the extent of the affliction, parents may yet experience a love that even an abnormality cannot fully dampen. To assess damages for emotional harm endured by the parents of such a child would, in all fairness, require consideration of this factor in mitigation of the parents’ emotional injuries in which the calculation of damages for plaintiffs’ emotional injuries remains too speculative to permit recovery notwithstanding the breach of a duty flowing from defendants to themselves. As in the case of plaintiffs’ causes of action for damages on behalf of their infants for wrongful life, the cognizability of their actions for emotional harm is a question best left for legislative address.

Accordingly, on the 1st plaintiffs, the complaint which was made in Staten Island and also Westchester is dismissed except to the extent that it seeks recovery of the sums expended for the long-term institutional care of their retarded child. On the 2nd plaintiffs, the complaint is also dismissed except to the extent that it seeks recovery for the sums expended for the care and treatment of their child until her death.

Medical malpractice comes in many different forms. Be it a birth injury, back injury, a head injury and the like, that results, doctors are liable for the treatments or health care they provide to their patients. Lives are at stake here and there’s no room for mistakes. If you have been injured by reason of a medical malpractice, contact Stephen Bilkis & Associates immediately to know the legal steps necessary for you to make. We have our NYC Medical Malpractice Lawyers or our NYC Birth Injury Lawyers always ready to assist you.

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