Rights Expanding for Plaintiff's with in Utero Injuries

Complications arose during the delivery of Patrick Draper. He was in a breech position, and the umbilical cord was torn. Draper was born anemic and with neurological damage as well as Erb’s palsy, an injury to the shoulder.

In a complaint brought as a 20-year-old adult, Draper alleges that his injuries could have been avoided had a Caesarean section been performed. He alleges that the doctor failed to inform his mother of a Caesarean option, nor was she allowed to decide the manner of delivery. His mother signed a consent form for a C-section, and the doctor was aware of the baby’s breech position when he decided to attempt a vaginal delivery.

On a motion for summary judgment on the issue of informed consent, the New Jersey appellate court recognized in a case of first impression that a cause of action exists for in utero injuries to plaintiffs because they "cannot be denied protection against incompetent medical ... treatment simply because they are incapable of giving legal consent." Draper v. Jasionowski, 858 A.2d 1141 (N.J.App.Ct., 2004).

In deciding that a child can bring an independent cause of action against the mother’s obstetrician upon reaching the age of majority, the New Jersey appellate court’s decision is consistent with cases decided in recent years by courts from the First Circuit (applying Massachusetts law), the U.S. District Court in the District of Columbia and state courts in New York, North Carolina and Wisconsin. With early genetic detection and prenatal medical screening and intervention, many defects can be prevented at birth.

Therefore, courts increasingly have recognized the patient’s claim that the doctor’s conduct could have minimized or prevented the problem. The development of medical science – with the consequent growth in the rights and legal status of the fetus – has led to recognition of the unborn infant’s rights in a normal, healthy life.

Until 1946, American courts had held that no duty to a fetus existed in tort law, even if the child was born alive. As early as 1900, the Illinois Supreme Court grappled with the issue in Allaire v. St. Luke’s Hospital, 184 Ill. 359, 56 N.E. 638 (1900). The dissent there argued for the recognition of a cause of action for the personal injuries suffered prior to the birth of an unborn child. Justice Carroll Boggs stated, "[The mother] may die ... and the child remain alive and capable of maintaining life when separated from the dead body of the mother. If at that period a child ... is injured ..., is not sacrificing truth to a mere theoretical abstraction to say the injury was not to the child, but wholly to the mother?"

Nearly 50 years later, in Bonbrest v. Kotz, 65 F.Supp. 138, 139 (D.D.C.1946), the District Court for the District of Columbia held that recovery would be allowed for prenatal injuries if the child was born alive or capable of living outside the womb. Courts, including those in Illinois, found this viability notion difficult to contend with, as was demonstrated in Renslow v. Mennonite Hospital, 67 Ill.2d 348, 367 N.E.2d 1250 (Ill.1977).

There, the court dealt with the case of injuries suffered by an infant girl as a result of a faulty blood transfusion that was performed on the mother nine years before the child’s birth. The court found that a cause of action would lie even though the person was not yet born because the birth of her daughter was foreseeable. The court held that, "There is a right to be born free from prenatal injuries foreseeably caused by a breach of duty in the child’s mother."

Combining Renslow with the action of the Illinois Legislature, which provides for minors and persons with a legal disability to bring a cause of action on their own behalf within two years after the person attains 18 years of age or when the disability is removed, 735 ILCS 5/13-2112 (2004), it appears that Illinois would hold similarly if presented with the issued that the New Jersey appellate court recently considered in Draper.

I say that despite the holding in a very splintered decision by the Illinois Supreme Court in Siemieniec v. Lutheran General Hospital, 117 Ill.2d 230, 512 N.E.2d 691 (1987). There, the court refused to recognized a cause of action for wrongful life on behalf of the child because it could not state as a matter of public policy that no life was better than an impaired life. The court found that the child could not recover extraordinary expenses after he reached the age of majority for his disability, hemophilia. A majority of the court did, however, recognize a wrongful birth cause of action on behalf of his parents to recover his medical, hospital, institutional, educational and other expenses necessary to manage and treat his disorder while he was a minor.

The parents’ allegations rested on their being deprived of making "an informed and meaningful decision." Although the terms "wrongful life" and "wrongful birth" have been used interchangeably at times, Illinois courts make a distinction in allowing wrongful birth claims for prenatal injuries but disallowing claims where "an informed parental decision [would be] to avoid h is conception at birth." Siemieniec, ibid., at 236.

In good conscience, the courts cannot make the public policy decision that no life at all is better than a physically or mentally disabled life. Howe any recovery is determined will lie in the framing of the complaint and how it is positioned to the court.

A child or a parent should be discouraged from claiming recovery for not wanting to be born or not wanting the child at all; but recovery will be allowed for expenses related to injuries that could have been avoided had negligence not occurred or had medical personnel fully informed the patient.

As medical testing improves, the issue of physicians performing their professional duties, including that of proper and full informed consent, will become more critical to parents and to children.