Cost of Living: No Wrongful Life
New York Appellate Division, Second Department: DeChico v. Northern Westchester Hospital Center et. al.
Gianluca DeChico was born with schizencephaly, “a rare and sever congenital brain defect.” On her own behalf and on behalf of her child, Gianluco’s mother sued all involved with her prenatal care for the “extraordinary costs of the child’s medical care,” basing her case on the failure of her health care providers 1) to fully explain the implications of prenatal sonograms showing a ventricle defect on one side of the baby’s brain, 2) to conduct further tests, and 3) to fully advise mom about the abortion option.
Defendants moved to dismiss. The lower court denied their motion for summary judgment. Defendants appealed.
The Appellate Division reversed and dismissed the case against movants. As the court observed, “It is well settled that no cause of action may be maintained on behalf of an infant plaintiff for wrongful life, ‘i.e., that he or she would never have been born but for the negligence of the defendant…” Accordingly, that part of the child’s action which sounded in wrongful had to be dismissed. A child cannot sue for being born, no matter what his condition. The child can, however, sue for injuries or conditions caused as a result of medical negligence. In this case, however, based on the time line and the allegations made, “any negligence on the part of the defendants did not proximately cause the complained-of damages.”
While the court would not recognize the child’s claim for wrongful life, it acknowledged a cause of action on the mother’s behalf for the costs to be incurred in raising a child with a disability (wrongful expenses rather than wrongful life). In order to prevail on such a claim, mom had to prove a duty owed, breach of that duty, and that the breach caused the injuries, i.e., she had to show medical negligence (malpractice) which deprived her of the opportunity to avoid incurring such expenses. Mom’s argument was that those expenses would have been avoided by an abortion. But even this argument had it limitations. According to the court, she had to show that the doctors denied her the opportunity to terminate her pregnancy “within the legally permissible time period or that the child would not have been conceived but for the defendants’ malpractice.” That, she could not do.
Nothing the doctors did caused the condition. No other tests would have changed the outcome. And the advice given was sufficient, particularly in light of New York’s Criminal Code. As the court observed:
It is undisputed that at the time of the April 21, 2004, ultrasound, the gestation period was 27 weeks and six days, plus or minus 18 days (i.e. at least 25 weeks). Pursuant to Penal Law § 125.05, it is unlawful for a physician, pregnant woman, or other person to terminate a pregnancy after the twenty-fourth week of gestation, unless necessary to preserve the life of the mother.
Given when the condition was discovered, how far along the pregnancy was and the proscriptions of New York’s abortion law, “any negligence by the defendants in connection with treatment, testing, or advice after the April 21, 2004 ultrasound cannot be said to have proximately caused the complained-of injuries, namely, the continuation of the pregnancy and birth of the child.” Movant’s did what they had to do. They did not have to send mom out of state for an abortion or even tell her late term abortions were available elsewhere. They are judged by the standard of care in New York where abortion was not an option this late in the pregnancy and doctors could not be faulted for failing to circumvent New York’s legislative constraints by sending mom elsewhere.
Sometimes life can be cruel and the negligence of others can cause grievous injury. Other times life can be cruel and mysterious: bad things just seem to happen. In the latter case, the courts are grossly inadequate to unravel the mystery and set things right. Perhaps the biblical writers of old said it best and offer the only solace available:
As you do not know the path of the wind,
or how the body is formed in a mother's womb,
so you cannot understand the work of God,
the Maker of all things.
Ecclesiastes 11:5
