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A child survived her birth for approximately two and one-half years


A child survived her birth for approximately two and one-half years; and during such period lived her short life in pain and suffering with and from polycystic kidneys and other diseases. Through the medium of the administrators of her estate (the parents), she makes claim in tort against the defendant doctors for conscious pain and suffering sustained by her after birth, contending that as a result of the defendants’ medical malpractice (where a birth injury or birth injury accident may result) she was conceived and born when she should not have been conceived or born. Such type of claim has in recent years received nomenclature in the field of torts as one for ‘wrongful life’ and/or the ‘right not to be born’.

Is the claim for “wrongful life” legally viable? Is there a legal right to make claim for pain and suffering resulting from a tort committed prior to conception and thus having been conceived and born?

Both defendants are licensed doctors, ‘specialists’ in the field of obstetrics; that the mother of the infant decedent had previous to the birth of the infant plaintiff given birth to a child in June 1969; that the prior child was born with polycystic kidneys and other conditions and died a short time after its birth; that defendant-one, was in charge of that delivery; that after the death of the prior child, defendants rendered medical care and advice to the mother between June 1969 and 31 July 1970; that based upon such advice the mother became pregnant, resulting in the birth of the presently involved infant, on 31 July 1970; that the defendant-two supervised and delivered said child; that this child, plaintiff now deceased, was also born suffering from polycystic kidneys from which she died two and one-half years later; that defendants were guilty of malpractice because of the negligent care, treatment and advice given to the mother which, they maintain, was not in accord with accepted medical standards in that the medical care and advice was improper by failing to inform the mother and father of the deceased infant of the risk of said infant’s being born with such congenital defects inherent in another pregnancy; that defendants represented to the mother that the condition of the prior (1969) deceased child did not indicate any reason for the mother not to become pregnant again and that there was no reason to fear that a future pregnancy would result in the birth of an unhealthy, congenitally defective child; that defendants did not inform them that polycystic kidney disease was hereditary in nature; that defendants failed to take tests to ascertain the chromosomal and/or genetic makeup of the mother and father so as to ascertain the possibilities and probabilities on a rational basis of any birth following that of their male child born in June 1969 who was afflicted with said congenital kidney disease, and in advising, informing and assuring the mother and father that any child conceived and born to them subsequent to the birth of the child in 1969 would not be similarly afflicted without any test data as a basis for such advice; and by giving the plaintiffs such reassurance without having made any research or investigation into relevant medical information then available concerning said condition and its congenital hereditary nature.

The series of allegations, supplemented by the bill of particulars, are an admixture of alleged malpractice and fraud, the court has considered them all to be in effect one, that is, the tort (malpractice) action asserted by the infant, now deceased, for pain and suffering resulting from her birth in violation of her claimed ‘right not to be conceived and therefore not to be born’.

Life begins at the moment of conception; from that moment every fetus is a life ‘in being’ and, as such, has the rights of a human person. If there is human life, proved by subsequent birth, then that human life has the same rights at the time of conception as it has at any time thereafter.

What if a wrongful conduct takes place before conception? Can the defendant be held accountable if his act was completed before the plaintiff was conceived?

Yes, for it is possible to incur ‘a conditional prospective liability in tort to one not yet in being. The injuries resulting from a wrong committed upon or as to complainant Before conception need not have been physical. ‘It is true that the Plaintiff was not born when the fraudulent representations were made. Still they were made by the defendant to the plaintiff’s mother for the purpose of inducing a marriage between her parents, and if they had been true, the plaintiff would have been the owner of this particular property. In this way she is the very person injured by the fraud, and although not individually in the mind of the defendant when he perpetrated that fraud, yet, as filling the position of heir to her father, she belongs to the class which defendant had in contemplation when he represented to the mother that the heir would have the farm. In this way it may be claimed that defendant had in view the plaintiff and the rights he alleged she would have.

Since the decedent’s conception took place after the alleged tort committed by defendants, and since the child was a potential being with essential reality at the time of the act, for she belonged to a class which defendants could foresee and had in contemplation when they made the alleged misrepresentation to the mother and committed the alleged tort, defendants had in view the decedent. In this way, it can be claimed there was “foreseeability”.

In the present case, the action is brought by the ‘child’ for the alleged tort occasioned against said child prior to her conception, with said child having been foreseeable and unequivocally contemplated by defendants, and said child’s conscious pain and suffering after birth being medically foreseeable. At this point we are not dealing or concerned with any parents’ action for mental distress. The fact is that the injury from which their emotional harm stemmed Was suffered by the child.’

Emphasis must be given on the fact that the infant decedent does not seek damages for being born, per se, but rather seeks damages for the pain suffered by her After her birth based upon the tort committed prior to conception.

The court believes that there is considerable support for its position that this action is viable within the confines of cases decided.

Once having been born alive, particularly where, as here, the child was foreseeable and within the contemplation of the defendants, where defendants are claimed to have been aware of or should have been aware of the danger that said child might or would be born with such defects and malady, said child assuredly comes within the ‘orbit of the danger’ for which defendants could be held liable

‘It is fundamental to our common-law system that one may seek redress for every substantial wrong. ‘The best statement of the rule is that a wrong-doer is responsible for the natural and proximate consequences of his misconduct; and what are such consequences must generally be left for the determination of the jury.’

Specializing physicians in Nassau and Suffolk owe a degree of care to their patients greater than the ordinary general practitioner. To absolve them of their tort merely because no legal precedent therefore exists in common law is to stultify legal progress and must not be considered a legal barrier. The law must ever move forward; it must not be allowed to become a motionless pool stagnated by mere lack of precedent or to fall prey to the antiquated theory of ‘public policy’ specifically laid to rest and rejected but once again raised in in another case. That theory (public policy) carried upon the thought of being an ‘unreasonable burden’ placed upon the medical profession, is not based upon any proven base; to the contrary, where ‘birth’ has ensued, ‘public policy’ no longer applies.

The court is guardian of the rights of all the citizenry, not only of a chosen few. This court believes that the medical profession is not ‘unreasonably burdened’ if held liable in damages for the injuries caused to those who depend upon it for their very lives and who are dependent upon that very profession’s conducting itself within the legal standards set for it. Unlike other professions, the medical profession deals not with money or property, but with the continuance of life and avoidance of death. To use the worn-out, rejected cliche of ‘public policy’ is to single out and grant preferential treatment to the medical profession over all other professions and enterprises where malpractice could result in payment of ensuing resultant damages. This was never truly contemplated by either the general public, the Legislature or the Court. This court further believes that Judiciary can intelligently sift the wheat from the chaff and that it has the ability to succinctly deal with any attempted fraudulent scheme or claim and make short shrift thereof.

The so-called argument that the damages are somewhat speculative and difficult to prove should not be the arbitrary basis upon which to bar the present action, for in any event such position is beside the point on the issue as to the sufficiency of a pleading. In the ultimate, it should be the pragmatic determination of the trier of the facts upon a complete analysis of the evidence presented at trial.

Likewise, the fact that the pleading here under attack does not fall within the ambit of some prior case does not and should not constitute the basis for or require the dismissal of the complaint. ‘But if the most that can be said is that the case is novel and is not brought plainly within the limits of some adjudged case, we think such fact not enough to call for a reversal’.

The real question is whether the defendant inflicted such a wrong upon the plaintiff as resulted in lawful damages and not whether there is any precedent for the action since that itself is not an unscaleable barrier.

In view of the above, the court rules that the defendants committed a tort upon the infant child, although then not conceived, but not only contemplated by her parents but also contemplated and foreseeable by defendants, to the child’s injury measured by her short life of two and one-half years.

The court believes that the infant decedent has a viable cause of action for her conscious pain and suffering measurable as any other tort case seeking damages for such type claim.

Personal injury actions arise when people cause injury or harm to another, unintentionally. In every negligent act, liability arises. Damages result. People who have been injured, physically mentally or emotionally, have the right to get compensated. How do you enforce your rights? You seek the services of a lawyer specializing in personal injury actions. The best lawyers are with Stephen Bilkis & Associates. We have trained NYC Medical Malpractice Attorneys and NYC Birth Injury Attorneys who will provide you with the best legal options available.

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