A complainant mother underwent an abortion in a hospital. During the procedure, her uterus was punctured and she initiated an action for medical malpractice while her husband sued for loss of consortium.
After two years, the mother conceived a fetus and apparently completed a normal term pregnancy. Approximately three years after giving birth and seven years & six months after commission of her alleged tort, the medical malpractice suit was settled for $175,000. The settlement occurred during the course of the trial.
It is now contended that as a result of the perforation of the mother’s uterus, a son was born with brain damage. Accordingly, the action was instituted almost seven years after the commission of the alleged act of medical malpractice and more than two years after the birth of her son.
The complaint claimed five reasons of action. The first two causes are on behalf of the son and the malpractice committed to the mother, the negligence of the hospital in treating her which brought an injury to the son. The third reason, also on behalf of the son, is bottomed upon the failure of the hospital to inform the mother of the risks and hazards of the treatment. The final two reasons are for loss of the child’s services, society and companionship and for expenses acquired and to be acquired including medical attention. One reason is alleged on behalf of each parent.
The hospital however moved for decision without proceeding. A special term granted the motion, holding that no such action is cognizable under the law. Same in Long Island and Manhattan.
Based on the record, no such case decided in the State deals precisely with the same issue of the complainant. The court therefore, turns to cases which inform by laying down guidelines. At the beginning, the court note that if the complaint sets forth a viable reason of action then the court need not concern whether there was a timely filing of a notice of claim. Despite the explosive expansion of tort law in the recent past, the court thinks it is fair to say that none of the cases disinterest the law to act, therefore as recognized by law, the court created a new reason of action. The court states that even if no such claim has ever been before accepted, it does not make the claim an unscalable barrier. In the circumstances, the court is constrained to conclude, unless otherwise instructed by a superior judicial authority or by the government, that no reason of action lies on behalf of the son of the complainant.
As to the fourth and fifth reasons set forth on behalf of the parents, the complainants were necessarily a part of the malpractice action which was already settled. Although clothed in a new theory and seeking improved damages, all of the matters alleged in the two reasons of action flowed from the wrong actions committed against the mother. The complainant parent were included in the settlement reached and may not be the subject of a separate action.
For such reason, the order of the Supreme Court granting the request of decision without proceeding for the hospital as the opponent is affirmed without costs.
The court wanted to examine the question in view of the trend in the decisions and commentaries, as well as the injustice evident in the denial of the opportunity to such children to prove their cases.
The hospital’s arguments on the law of limitation do not exclude the infant as one of the complainant. The order granting for the decision without proceeding on the ground that the complaint fails to state a reason of action should be reversed.
Giving birth is one of the happiest events in a woman’s life. It does not only make a family complete, but it enables you to give and nurture life. When something wrong takes place inside the labor room, both the mother and her child is in great danger. A NY Medical Malpractice Lawyer when teamed up with a NYC Birth Injury Attorney and a New York City Birth Injury Accident Lawyer will work hand-in-hand to make sure that you get the justice that you deserve.