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5. Unborn ChildrenEndresz v. Friedberg

Relevant Facts The P was 7 months pregnant with twins when she was injured in a car

accident in 1965. Two days later the boy and girl babies were delivered stillborn.

Procedural History The P and her husband brought 4 claims: 2 for the wrongful deaths, themedical, hospital, and funeral expenses incurred from each child. The Ps sought $100,000

in damages. The court at Special Term dismissed the 2 suits of wrongful death. [I assume

the P is appealing this]

Issue Presented Is a fetus a person? Should the death of unborn, yet viable fetuses be wrongful

death in tort claims?

HoldingAs a matter of public policy, a cause of action for pecuniary loss should not accrue to

the distributes of a fetus stillborn by reason of the negligence of another; the damages

recoverable by the parents in their own right afford ample redress for the wrong done.

Reasoning Legislature didnt mean to include unborn fetuses within the term decedent in the

EPTL. The fetus when deprived of life while yet unborn is never faced with the prospectof impaired mental or physical health. The law doesnt consider a fetus as having aseparate judicial existence until its born.

Judgment/Disposition Order appealed affirmed.*** An overwhelming majority of jurisdictions has held that the reasons supporting the denial

of a claim were no longer persuasive and has allowed a cause of action for prenatalinjuries when they were inflicted on a viable fetus who was subsequently born alive.

Procanik by Procanik v, Cillo

Relevant Facts Mrs. Procanik, the mother of the infant P, found out she had measles and

informed her obstetrician. He did a test to find out if it was the German measles whichwould result in horrible birth defects and probably prompt an abortion. He negligently

read the results and determined she had the infection as a child when she actually had it

during the first months of her pregnancy. The baby was born with congenital rubella

syndrome and has multiple birth defects including eye lesions, heart disease, and auditory

defects. The D doctors do not deny that they owed a duty to the infant P.

Procedural History Summary judgment granted because claim failed to state a cause of action

upon which relief may be granted. The Law Division granted Ds motion to dismiss, and

the Appellate Division affirmed. The P moved to amend the claim to recover as special

damages the expenses he will incur as an adult for medical, nursing, and related health

care services; Appellate Division denied leave to amend.Issue Presented Should summary judgment have been granted on the wrongful life claim

brought by the infant P and parents?

HoldingThe infant P may recover as special damages the extraordinary medical expenses

attributable to his affliction, but that he may not recover general damages for emotional

distress or for an impaired childhood.

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Reasoning The claim for medical expenses attributable to the birth defects is reasonablycertain, readily calculable, and of a kind daily determined by judges and juries. This isnot premises on the concept that non-life is preferable to an impaired life, but ispredicated on the needs of the living. These, unlike pain and suffering for being born, arenot subject to wild swings and will carry sufficient sting to deter future acts of medical

malpractice.Judgment/Disposition Appellate Division decision affirmed in part, reversed in part, and thematter is remanded to the Law Division. The infant P has leave to file an amendedcomplaint asserting a claim for extraordinary medical, hospital, and other health careexpenses.

*** The terms wrongful birth and wrongful life are but shorthand phrases that describe thecauses of action of parents and children when negligent medical treatment deprivesparents of the option to terminate a pregnancy to avoid the birth of a defective child.