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A legal action was filed by a mother to recover damages


A legal action was filed by a mother to recover damages for the alleged medical malpractice against the medical professionals who handled her medical care and treatment during her pregnancy. The mother asserted in her first reason of action that due to her physician’s negligent care and treatment for her entire pregnancy up to her delivery, she gave birth to an infant suffering from congenital defects. The mother further alleges that the physicians’ failure to diagnose the fetus’ congenital defects during the term of the pregnancy resulted in the infant being born with multiple life threatening congenital defects causing her to suffer substantial economic loss for medical care of the infant. On the mother’s second reason of action, she claimed that due to the negligence of her physicians, she was caused to endure pain, suffering, anxiety and the emotional distress of giving birth to a disabled child, learning that the child suffered from multiple congenital defects and emotional injury flowing from those disabilities. The mother further alleges independent personal injury resulted from the surgery necessary to remove a portion of her liver to transplant into her infant son and the emotional injury stemming from her transplant surgery. The mother claimed that if not for the negligence of the physicians, her liver transplant surgery would not have been necessary. The third reason of action in the complaint is a derivative claim of the husband for medical expenses stemming from his wife’s liver transplant surgery and the attendant loss of services.

The physicians now move for a request to dismiss the second and third reasons of action in the complaint on the grounds that emotional distress is not recoverable as a result of the birth of a child born with congenital defects and the mother’s claim for personal injury is unrelated to the care and treatment rendered by the physicians during her pregnancy. The physicians in Nassau and Suffolk state that the mother did not suffer an independent physical damages apart from those recognized in normal labor and delivery of a child and the surgery complaint was a result of the mother’s voluntary donation of a portion of her liver to her child. The physicians further assert that the derivative claim of the husband also must fail as it is predicated upon the emotional injuries claimed by the mother and also from the mother’s voluntary donation of a portion of her liver.

The complainants oppose the motion on the grounds that the physicians’ misunderstand the second reason of action as a claim exclusively for emotional injury flowing from the fact that the complainants’ son was born with congenital deformities. The complainants argue that the second reason of action seeks to recover for the physical and emotional injury of the mother related to the surgery necessary to donate a portion of her liver to her infant son, as well as the emotional damages of a parent of a disabled child, and the emotional damages flowing from the disabilities of her infant son. The complainants also argue that the derivative claim in the third reason of action flows from the physical and emotional damages of the wife as a result of the transplant surgery.

It is acknowledged that the mother was under the care and treatment of the physician during her pregnancy and the mother gave birth to an infant son with multiple congenital abnormalities. It is also certain that the physicians did not cause the congenital defects but the mother asserted that the physician failed to properly interpret the sonograms during the pregnancy and failed to order additional testing which would have revealed the abnormalities and which would have afforded the complainants the opportunity to terminate the pregnancy.

The issue therefore, is whether the complainants may recover for the mother’s emotional pain and distress of carrying a child to term, giving birth, and learning upon delivery that the child suffered from multiple congenital defects. The second issue concerns whether the mother of a child, as the only viable liver donor, can recover for alleged physical and emotional damages related to a voluntary elective surgical procedure, performed on the mother approximately one year after the birth of her child. The husband’s derivative claim as alleged in the third reason of action flows directly from the wife’s claims concerning her transplant surgery and is determined accordingly. Solely for the purposes of the motion, the court will assume the physicians liability in failing to interpret the sonograms and for failing to order additional tests such as a level 2 sonogram.

With regard to the first issue, the mother’s claim for emotional distress associated with the delivery of a child with multiple congenital defects has previously been dealt with by the court and it is not a legally cognizable claim. It is well settled that the complainant parents may not recover for the emotional harm alleged to have occurred as a consequence of the birth of their infant with multiple congenital defects.

The complainants also argue in their second reason of action that the mother’s voluntary liver transplant surgery was necessitated by the physicians’ negligence and they are therefore liable. The complainant’s further asserted that due to the condition known as biliary atresia, discovered after the child’s birth, the drainage of bile from the liver was prevented and the infant suffered irreversible liver damage requiring a liver transplant. The mother affirmed that she was the only viable donor for her child. In the mother’s affidavit, she stated that the liver donation which she agreed to and underwent was a very necessary action undertaken by a parent, upon the advice of a highly qualified medical specialist, to support her son whom she had been advised would not survive without the benefit of a liver transplant. The mother also claimed that she did not hesitate to undertake the parental responsibility to enable her son to survive when she agreed to donate a portion of her liver. The mother’s donation of a portion of her liver was a very admirable action and was one which, the court presumes, every loving parent would undertake for the benefit of their child. The complainant however, seeks to have the court expand liability to the physicians for a voluntary donation which it is not inclined to do.

During the time that the mother underwent the transplant surgery, she was no longer a patient of the physicians. She did not consult with the physicians concerning her transplant surgery and had not been their patient for approximately one year. Any duty that the physicians owed to the mother involving her pregnancy and the birth of her child had ended. In addition, the decision by the parents, particularly the mother as the only viable donor, to voluntarily undergo organ transplant surgery for the benefit of the child constituted an independent intervening act which was not a normal or foreseeable consequence of the physicians’ alleged negligence. Furthermore, any pain and suffering or emotional distress stemming from the transplant surgery would also not be recoverable. The husband’s derivative claim in the third reason of action, predicated upon the claims in the second reason, also fail for the reasons mentioned above.

As a result, the physicians’ motion to dismiss the second and third reason of action in the verified complaint is granted and the first reason of action for financial damages shall continue.

It is very difficult for any parent to decide when the medical condition of their child is a life and death situation. If injuries occur during operation, birth or any medical procedure, you may ask the assistance of the experienced NYC Injury Attorneys or NY Birth Injury Attorneys.

If negligence results to suffering, just call the office of Stephen Bilkis and Associates for a NYC Medical Malpractice Attorney.

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