Upstate New York Attorneys: Birth Injuries
Powers & Santola · Experienced Malpractice Lawyers in Albany
New York Courts have steadfastly refused to become engaged in philosophical, religious or sociological debates about such things as when does life begin, does a parent have a legal right not to have children or should a child be allow to claim he/she should never have been born.
Consequently legal rulings concerning birth injuries are not always based upon sound reasoning but depend more upon the nature of the claim for damages and to whom the claim belongs. In the arena of birth injuries the obstetrical care providers have two patients, the mother and the unborn fetus.
In a case of malpractice resulting in prenatal or pre-birth injuries, the mother and the child in utero may each be directly injured and are each owed a duty separate and independent of the other. Examples may include:
Cerebral palsy caused by interruption of the flow of blood to the brain (hypoxia or hypoxic brain injury) or traumatic injury to the brain or nervous system
Fetal complications such as shoulder dystocia, paralysis, and damage to the brachial plexus (otherwise known as Erb's palsy)
To discuss the particulars of your case with a highly experienced and knowledgeable malpractice attorney, please call the Albany and Syracuse offices of Powers & Santola toll free at 866.689.9692. Your consultation will be free. You may also contact us via e-mail for answers to your important questions or to request an appointment.
Please continue reading to learn more about birth injury and related cases:
Live Births
Infants who have sustained injuries due to malpractice committed before birth may bring a claim for the injuries and damages they sustained only if they are in fact born alive. Infants who sustain injuries after birth due to malpractice may also claim damages. Law suits on behalf of infants may be started by a parent who has legal custody or by a guardian appointed by the Court.
If death subsequently occurs from causes occasioned by malpractice, a wrongful death claim may also be commenced by the infant's distributes. The same is true if the infant is injured through a medical error which occurs after birth.
Mothers who have sustained personal injuries as a consequence of malpractice, whether committed either before or after the delivery, may also have a legal claim for any injuries and damages sustained which are different than those normally encountered during the birthing process If there is a personal injury due to malpractice the mother may also claim emotional injuries suffered due to the malpractice. - Back to Top
Stillbirths
New York does not allow birth injury malpractice suits to be brought on behalf of a fetus if the pregnancy results in a miscarriage or stillbirth. Also, no wrongful death cause of action for the demise of the fetus exists when there is no live birth. In effect, New York holds that a fetus has no legal right to sue for damages, unless, and until there is a live birth.
Until recently, only mothers who had themselves suffered a personal injury over and above what normally occurs during the birthing process could bring malpractice claims for the personal injury as well as the emotional damages occasioned by the malpractice. However mothers who did not suffer any such extraordinary injury could not sue for the emotional damages flowing from the miscarriage or stillbirth. Since there was no claim for the unborn fetus the result was that no one could be held responsible for the malpractice.
To correct this injustice, New York's highest Court recently ruled that a mother may now assert a claim sounding in medical malpractice to recover damages for emotional distress suffered as a result of a miscarriage or the stillbirth of a child, with or without the mother having sustained.
However if the infant is born alive, and dies shortly thereafter, the mother has no claim for emotional harm unless she sustained independent physical injuries. - Back to Top
Wrongful Conception
An infant has no recognized legal right to claim damages for having been born into this world.
When, for instance, there is malpractice committed in the performance of an unsuccessful surgical birth control procedure or in failing to diagnosis pregnancy within the time limits permitted to terminate the pregnancy, parents have no legal claim for normal cost of rearing an unplanned but otherwise healthy child.
If the child is born with abnormalities, parents may have a claim for the extraordinary cost, over and above the normal cost of raising a child. - Back to Top
Wrongful Birth
When malpractice results in the birth of a child afflicted with abnormalities the courts have held the infant has no claim for his/her wrongful birth. The basis for this: "whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians.
Surely the law can assert no competence to resolve the issue, particularly in view of the very nearly uniform high value which the law and mankind has placed on human life, rather than its absence.
For the parents, however, they may recover for the "extraordinary care and treatment" necessitated by the act of malpractice. - Back to Top
Contact Powers & Santola today to discuss your case in a free consultation with an experienced New York birth injuries lawyer
