Day on Torts
The highest court of New York has rejected in part the medical negligence claim of a woman who sued a doctor and others for emotional distress but permitted the claim of the child to go forward.
The mother claimed that the doctor told her that the seven week old fetus she was carrying in utero would likely be harmed by fibroid tumors in her uterous and recommended that she terminate the pregnancy. The drug methotrexate was given to accomplish that result. The drug was administered, and the woman thought that the pregnancy was terminated, but later discovered she was 28-weeks pregnant. She alleged that the dose of methotrexate that she was given was too small to terminate the pregnancy. She was told that the drug administration put the baby at risk for harm, but she decided not to have a late-term, out-of-state abortion.
The baby was born severly injured. Suit was filed on behalf of the child; the mother also filed suit for emotional distress. The Court of Appeals held that the mother could not assert a claim for emotional distress arising out of the birth the impaired child but could assert a claim for any injuries independent of the birth of the child. She was granted leave to amend her complaint to plead accordingly.
Interestingly, the child’s claim was allowed to proceed despite the suggestion that it was a “wrongful life” claim. Such claims may not be pursued in New York (or in Tennessee) but the court held that the claims were plead to assert that the original advice about the need to terminate the pregnacy was in error and that error lead to methotrexate-induced injury.