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Can baby sue Dr. for 'preconception' negligence?

CASE ON POINT: Torres v. Sarasota County Public Hosp. Bd., No. 2DO4-1634 (Fla. App. 04/13/2007 So.2d -FL

ISSUE: Does a child, born alive, having suffered prenatal injuries at any time after conception, have a cause of action against a physician, who may have caused the child's injury? That is the issue with which the Florida courts were confronted in this unusual case in which a mother brought suit against the physician who delivered her child, as well as other health care providers.

CASE FACTS: Maria Tones filed suit on behalf of her son, Luis Torres, against Dr. Gary Easterling, Sarasota Memorial Hospital, and the Sarasota County Health Department to recover for the brachial plexus injury Luis sustained during delivery. The plaintiff alleged that Dr. Sullivan was negligent because he failed to obtain a complete obstetrical history from the plaintiff and, as a result, delivered Luis vaginally instead of performing a Cesarean section. The trial court granted Dr. Sullivan's motion for summary. judgment after it concluded that he had not deviated from the standard of care when he took Mrs. Torres' history. The trial court reached its conclusion by rejecting the testimony provided by Mrs. Torres's expert medical witness. The District Court of Appeal of Florida reversed the summary judgment in favor of Dr. Sullivan since the trial court erroneously failed to consider the testimony provided by the plaintiff's expert on the standard of care. The court concluded that this was a "disputed issue of fact that could not be resolved by the trial judge on a motion for summary judgment." The Circuit Court, Sarasota County, entered judgment for the defendants after the trial court found that the physician who had delivered Luis, Dr. John Sullivan, had not deviated from the applicable standard of care in the delivery. In this case, the plaintiff sought to have the summary judgment in favor of the defendants reversed because the court relied on the trial court's finding that Dr. Sullivan had not deviated from the standard of care. The complaint alleged that during pregnancy with Luis, and during an earlier pregnancy, the plaintiff received prenatal care from the Department of Health. The allegations of negligence pertained in one way or another to the medical records created and kept by the Department during those pregnancies. The plaintiff argued that the allegations made against Dr. Sullivan were similar to those made in this case, and since the summary judgment for Dr. Sullivan was reversed on appeal, the case at bar had to be decided before a jury and could not be disposed of by summary judgment. The plaintiff appealed.

COURT'S OPINION: The District Court of Appeal of Florida reversed the judgment of the lower court and remanded the case back to the court for further proceedings. The court rejected the contention that a nonviable fetus has no legal standing, stating that "a child born alive, having suffered prenatal injuries at any time after conception, has a cause of action against an alleged tortfeasor." If the child is born alive, there is a relation back to the time of injury in order for the infant person to maintain a cause of action.

LEGAL COMMENTARY: The court cited cases in its opinion, which were representative of cases in which courts have allowed children to maintain claims for "preconception medical malpractice." Arguably, in those cases, the link between the negligent act and the injury to a later-conceived child is more direct than the link in this case. However, the court pointed out that at least one of the cases did not expressly include in its analysis a consideration of how directly the injury is connected to the alleged negligent act. Even if the court believed that such a consideration was consistent with one of the cases, it noted that it compared the facts in this case to those in one of the cases it cited, it could not say that the connection between Dr. Easterling's alleged negligent act and the injury to Luis was more remote than that in the cases cited. Accordingly, the court stated that while it realized its holding extended liability to a factual scenario that differed from those typically found in cases recognizing claims for preconception medical malpractice, it concluded to hold otherwise would be inconsistent with the case cited. Further, the court observed that in reaching its conclusion in allowing children such as Luis to maintain a suit for preconception injury will not impose any obligations on physicians beyond what is already required by the prevailing standard of care. The court noted that the majority of courts, which have considered medical malpractice claims based on preconception negligence, have elected to use a traditional negligence analysis. In doing so, those courts have analyzed a variety of factors in determining whether to impose a duty, foremost among them, the foreseeability of harm to the plaintiff: The court concluded that "future children," such as Luis, are "necessarily foreseeable" given the nature of the issue. The court concluded that nothing in the cases decided in other states ruled out recognizing the claim of Luis.

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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Title Annotation:Medical Law Case of the Month
Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Date:Jun 1, 2007
Previous Article:Testimony that standard of care is "do no harm" fails.
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