Published on:

A mother and her baby have pleaded a separate cause of action.


A mother and her baby have pleaded a separate cause of action. The accused hospital moves to dismiss the infant’s cause of action, brought by her maternal grandfather as Guardian appointed by an order of the Court.

It is claimed that the hospital’s negligence, failure to provide adequate care and supervision, failure to protect and safeguard her health and physical body from harm from others while the mother was in the custody of the hospital resulted in the infant’s conception and being born out of wedlock to a mentally deficient mother. Furthermore, it is said that the infant was deprived of property rights, normal childhood, home life, proper parental care, support and rearing has caused her to bear the stigma of illegitimacy and has otherwise been greatly injured and such injuries are represented in plead sum of $100,000.

The hospital does not assail the mother’s cause of action wherein her Guardian seeks $50,000 for the claimed carnal assault of the mother while a patient at the said hospital, resulting in the pregnancy and birth allegedly due to the State Hospital’s insufficient care and supervision of said mentally ill patient. The legal posture is not inconsistent with the instant motion. In effect, the State Hospital says that if proven, there is a recognized cause of action in favor of the mother but regardless of proof the infant has no cause of action such as pleaded. The hospital emphasizes that the claimed cause of action of the infant has never been successfully pleaded in any other case although there have been trials of a mother’s cause of action.

On the motion, only the question of a claimant’s pleading is presented for determination. It is not the Court’s duty to consider the merits of the claimants’ claims or the credibility of any witness. On a motion to dismiss a pleading, one is confined to the boundaries of the pleaded matters which are accepted as though proven. The motion admits all facts alleged in the complaint and inferences that may be fairly drawn.

Being compelled to accept the pleaded facts as true, it is the Court’s determination that the cause of action is maintainable. Assuming that the accused did not give a female mental patient adequate care and supervision resulting her from being sexually attacked, the foreseeable combination of persons and event is actionable negligence and a proximate cause of the pregnancy and birth. The novelty and lack of precedent for declaring that the illegitimate baby has a cause of action should not be a deterrent to such ruling. Legal writings abound with glorious statements as to what the law is or should be. In simple paraphrase, the law is what the law should be.

The question therefore is not whether there is any precedent for the action, but whether the accused inflicted such wrongdoing upon the complainant as resulted in lawful damages. The separate efforts of capable counsel at bar have evoked no case where liability was fastened on a careless hospital, sovereign state or non-personal entity at the suit of the issue of a sexual assault. The problem is whether a tort was committed upon the child. Thus, the second question to confront the Court is whether tort can be inflicted upon someone simultaneously with its conception.

Although other branches of the law, such as property and inheritance, recognized the legal existence of a child from the moment of conception, in tort, a child is not regarded as a being separate from its mother until it was born. In the last few years a change has taken place in the law pertaining to prenatal physical injuries. From 1884 to 1946 it was universally held that under the common law there could be no recovery for such injuries. It was not until 1946 that a major breakthrough was made under the common law although one that received less attention had occurred in 1924. Gradually thereafter various jurisdictions permitted actions for prenatal birth injuries if a child was viable at the time of injury and if it survived birth. However, the exact time when viability occurs is uncertain. No medical authority can say with accuracy just at what moment a child can live when separated from its mother. Babies have survived in incubators ever further removed from the time of normal birth. The law has slowly come to realize these uncertainties and the viability test is being abandoned. Now complaints are being sustained where the pleaded facts show that the child was not, or might not have been, viable when the injury occurred.

It should not be disputed that children born illegitimate have suffered an injury. If legitimacy does not take place, the injury is continuous and irreparable. Such birth injury is not as tangible as a physical defect but it is as real. It is acknowledged by the State itself. The statutory provisions that a child’s illegitimacy must be suppressed in certain public records, is an admission of the hardship that can be caused by its disclosure. An illegitimate child’s very birth places him under a disability.

The right of a person to recover for a pre-natal birth injury inflicted during the ninth month of the mother’s pregnancy was upheld by the Court of Appeals. The case seeks to advance the area of recovery to injury at a much earlier stage of the life of the fetus up to the third month of pregnancy. The same rule should govern both cases. The opinion states that while the point at which the fetus becomes viable has been of usefulness in drawing some legal distinctions, the underlying problem that has usually troubled the judges who have written on the subject of recovery for pre-natal injuries, has been in fixing the point of being separated from the mother which begins when there is biological separation.

The opinion continues that in some groups of cases when it became necessary to decide when the separate legal entity of life began, the judges at common law took a view quite harmonious with present biological theory. In matters of descent and distribution they held that the child was in being from the time of conception if later born alive under conditions in which continuance in life was to be reasonably expected.

If the child born after an injury sustained at any period of his pre-natal life can prove the effect on him of the tort, then the complainant will be able to make out a right to recover.

The infant’s pleading alleges damages wrongfully inflicted at conception. The accused claims lack of basis. The sum of the argument against the complainant is that there is no New York decision in which such a claim has been enforced. The act or acts of which the infant complains were reasonably foreseeable by the State Hospital and hospitals in Queens and Staten Island which owed a duty to its patient and her issue. When a pleading alleges that a breach of a foreseeable duty was a proximate cause of damages, a claimant should be entitled to a trial. On the oral argument of the cross-motion to dismiss, the complainant withdrew the portion which alleges that the court has no jurisdiction of the cause of action. The cross-motion to dismiss the second cause of action is denied.

Mentally challenged people rely on competent people because we have better judgment and they should feel safe and protected when around competent people. If you know of a mentally incapable person who suffered injury, a NY Injury Attorney or a NYC Medical Malpractice Lawyer of Stephen Bilkis and Associates can help them and their family decide on what legal action to pursue. They may also seek the advice of a New York Birth Injury Attorney when the injuries that they have are acquired prior to or during birth.

Contact Information