Suing for fetal injuries

A Brooklyn appeals panel says a girl can sue for injuries sustained in utero.

By Catherine Price
Published February 28, 2007 12:22AM (EST)

Here's something from the New York Daily News that's guaranteed to provoke debate: In 1999, a pregnant schoolteacher was injured when a toilet at a Brooklyn public school collapsed. The placenta of her then 14-week-old fetus was ruptured, and her daughter was born prematurely, less than four months after the accident. Today, the 7-year-old has learning disabilities and asthmatic symptoms, which her parents attribute to her premature birth. Should the girl have the right to sue the city for her injuries?

Yes, according to an appeals panel that just overturned a 2005 decision by Brooklyn Supreme Court Justice Martin Solomon. The appeals panel said that if the injuries occurred after the child was conceived and if she were born alive, she had the right to sue -- thus denying the city's lawyers' claim that the child would have had to be able to survive outside of the womb at the time of the injury in order to qualify for damages.

The issue at hand obviously goes way beyond one teacher's run-in with decrepit school buildings: It steps into the very loaded question of whether fetuses have rights. According to the Daily News, "the judges were careful to craft the decision so that it would not encroach into the abortion debate" and included this explanation in their decision: "Abortion cases are genuinely distinguishable from the [Leighton] case since fetuses which are aborted are not born alive ... However, if the abortion fails and causes injury to the fetus who is later born alive, the child may have a cause of action sounding in medical malpractice to recover damages for the injuries sustained."


Catherine Price

Catherine Price is an award-winning journalist and author of Vitamania: How Vitamins Revolutionized the Way We Think About Food. Her written and multimedia work has appeared in publications including The Best American Science Writing, The New York Times, Popular Science, O: The Oprah Magazine, the Los Angeles Times, The San Francisco Chronicle, The Washington Post Magazine, Salon, Slate, Men’s Journal, Mother Jones, PARADE, Health Magazine, and Outside. Price lives in Philadelphia.

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