The New York Appellate Division, Second Department (“New York Appellate Court”), in its opinion issued on March 24, 2021, held in a New York wrongful birth medical malpractice action, “The record demonstrates a triable issue of fact as to whether the child’s medical conditions caused the plaintiffs to incur extraordinary expenses, including the cost of child care above what the plaintiffs would have spent had their child been born without disabilities and the costs of medical care and equipment directly attributable to the child’s disabilities which were not reimbursed by other sources.”

The plaintiffs, who are the parents of a severely disabled child, filed their New York medical malpractice wrongful birth lawsuit against, among others, the defendants Robert Berg and Arcadia OB/GYN, P.C. (“Arcadia”), and the defendant Peter Kratka, alleging that they committed medical malpractice in failing to properly diagnose the child’s various medical conditions in utero and advise the plaintiffs of their options. The plaintiffs sought to recover their pecuniary loss arising from the extraordinary costs of raising a child with severe disabilities. Berg and Arcadia moved, and Kratka separately moved, for summary judgment dismissing the complaint insofar as asserted against each of them. The New York Supreme Court, among other things, granted those branches of their motions. The plaintiffs then appealed.

New York Wrongful Birth Claims

In New York, parents may maintain a cause of action on their own behalf for the extraordinary costs incurred in raising a child with a disability. To succeed on such a cause of action, which sounds essentially in negligence or medical malpractice, a plaintiff must demonstrate the existence of a duty, the breach of which may be considered the proximate cause of the damages suffered by the injured party. Specifically, the parents must establish that malpractice by a defendant physician deprived them of the opportunity to terminate the pregnancy within the legally permissible time period, or that the child would not have been conceived but for the defendant’s malpractice. The claimed damages cannot be based on mere speculation, conjecture, or surmise, and, when sought in the form of extraordinary expenses related to caring for a disabled child, must be necessitated by and causally connected to the child’s condition. Since the plaintiffs’ recovery is limited to their personal pecuniary loss, expenses covered by other sources such as private insurance or public programs are not recoverable.

The New York Appellate Court held: “Contrary to the contention of Berg and Arcadia, they are not entitled to summary judgment dismissing the complaint insofar as asserted against them on the issue of liability. Although the affidavit of their expert did demonstrate their prima facie entitlement to judgment as a matter of law on this issue, the affidavit of the plaintiffs’ expert in response presented a credibility battle between the parties’ experts, and “‘issues of credibility are [best] left to a jury for its resolution'”.”

Source Vasiu v. Berg, 2021 NU Slip Op 01798.

If your baby was born with severe disabilities that may have been discovered if appropriate testing was timely done during your pregnancy, you may have the basis for a medical malpractice wrongful birth claim. Obtaining the legal advice from a local medical malpractice attorney may help you decide if you may and should proceed with a medical malpractice wrongful birth case.

Visit our website or telephone us on our toll-free line in the United States (800-295-3959) to be connected with wrongful birth lawyers in your U.S. state who may be able to investigate your possible wrongful birth claim for you and represent you in a medical malpractice case, if appropriate.

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