Albala v. City of New York

Carro, J. (dissenting).

Should New York permit a cause of action for “preconception tort”?

On December 27, 1971, an abortion was performed on the mother of the infant plaintiff, during the course of which her uterus was perforated.1 She brought a malpractice action in June, 1973 against the city and the Health *394and Hospitals Corporation, which was settled in 1979. In the interim she conceived again, and on June 3, 1976, the infant plaintiff Jeffrey Albala was born. The present action was commenced in September, 1978 for brain damage directly caused by the negligent injury to his mother’s uterus, prior to his conception.

Defendants moved for summary judgment, which Special Term granted “on the ground that the complaint fails to state a valid cause of action. There is no legal authority for holding defendant liable to the infant plaintiff based on injuries sustained by his mother several years before his conception”.

While this appears to be a case of first impression in this State,2 it has been widely recognized, here as well as elsewhere, that a cause of action exists for “prenatal” injuries, that is, injuries tortiously inflicted after conception but before birth. (See Woods v Lancet, 303 NY 349; Kelly v Gregory, 282 App Div 542). In recent years in those few jurisdictions in which there have been reported cases requesting relief for tortious injury to an infant caused by a preconception tortious injury to the mother, the cause of action has almost invariably been sustained.

In Jorgensen v Meade Johnson Labs. (483 F2d 237), the mother had taken the defendant’s oral birth control pills, had then ceased taking them and become pregnant. She thereupon gave birth to mongoloid twins, because the pills altered the chromosome structure within her body. Reversing the District Court and holding that the complaint stated a cause of action, the United States Court of Appeals for the Tenth Circuit, in interpreting Oklahoma law, held that the District Court had erred in reasoning that there could be no right of the child arising out of the preconception *395injury to the mother until legislative recognition was given to such a right. The court observed (p 240): “If the view prevailed that tortious conduct occurring prior to conception is not actionable in behalf of an infant ultimately injured by the wrong, then an infant suffering personal injury from a defective food product, manufactured before his conception, would be without remedy * * * We are persuaded that the Oklahoma courts would treat the problem of the injuries alleged here as one of causation and proximate cause, to be determined by competent medical proof.”

Renslow v Mennonite Hosp. (67 Ill 2d 348), was an action for injuries sustained by an infant as a result of the negligent transfusion of RH-negative blood into its mother, who had RH-positive blood, several years prior to the infant’s conception, when the mother was 13 years of age. In upholding the cause of action and extending the recognized liability for negligently inflicted prenatal harm, the court stated (p 357): “The cases allowing relief to an infant for injuries incurred in its previable state make it clear that a defendant may be held liable to a person whose existence was not apparent at the time of his act. We therefore find it illogical to bar relief for an act done prior to conception where the defendant would be liable for this same conduct had the child, unbeknownst to him, been conceived prior to his act. We believe that there is a right to be born free from prenatal injuries forseeably caused by a breach of duty to the child’s mother. Conduct which puts harmful consequences in motion and injury to a forseeable class of persons as a direct result may be negligence for which responsibility may attach. That there may be a time gap between the wrongful act and the suffering is immaterial. The cause of action is uniformly created not at the time of the negligent act, but only when the injury has been sustained.” (Concurring opn, p 365.)

The case in this area which most closely resembles our own is Bergstreser v Mitchell (448 F Supp 10), where the parents brought an action on behalf of both themselves and their infant son, for injuries arising out of defendant’s negligent performance of a caesarean section, over two and one-half years before the child’s birth. This caused the *396mother’s uterus to rupture during pregnancy, necessitating an emergency caesarean section, which resulted in brain damage. While barring the parents’ claims on Statute of Limitations grounds, the court ruled that the complaint alleged a cause of action on behalf of the infant for personal injuries arising from preconception negligent conduct.

While this is not as “pure” a case of negligence and direct causation as is our own, since there was another intervening caesarean, the court’s ruling is also persuasive because the status of Missouri law in 1977, with regard to this question, was similar to our own and the now predominant view. Missouri had expanded the right for prenatal injuries to allow an infant to bring an action for injuries received after conception, contingent upon being born alive. The court felt (p 14) that the problem presented was one of “causation and proximate causation” to be determined by competent medical proof. It stated that there had been no showing that the defendant could not reasonably have foreseen that plaintiff mother, a married woman, would later bear a child and that the child would be injured as the result of the earlier improper caesarean section. “The duties imposed by the law of torts arise out of circumstances wherein there is a foreseeable or reasonable anticipation that harm or injury is a likely result of acts or omissions to act * * * The principles of common law authorize courts to compel a tortfeasor to compensate a person who has been injured through the tortfeasor’s negligence. If a child after birth has no right of action for injuries arising out of preconception negligent conduct, there is a wrong inflicted for which there is no remedy. The Court finds no logical reason to deny recovery to a person simply because he had not yet been conceived when the wrongful action took place.” (Bergstreser v Mitchell, supra, p 14.)

The action now before us is the strongest, clearest case for the extension of the prenatal injury doctrine to preconception injury. It is simpler and more direct than any of the. cases in which a right of recovery has thus far been upheld. The defendants violated their duty of care to plaintiff’s mother and negligently punctured her uterus. It was foreseeable that she, a young married woman, would again *397conceive. She did, and plaintiff was born brain damaged aá a result. To afford relief is consistent with common-law principles. Given the present state of medical and scientific knowledge, it becomes illogical to deny relief based upon the status having been “prenatal”, “viable” or “preconception”. Shall we grant recovery for a tortious act committed one moment after conception and yet deny it for the same act committed one moment before conception?

“The case at bar seems to be the natural result of the present course of the law permitting actions for physical injury ever closer to the moment of conception. In point of time it goes just a little further. The significance of this course to us is this: if recovery is to be permitted an infant injured one month after conception, why not if injured one week after, one minute after, or at the moment of conception? It is inevitable that the date will be further retrogressed * * *

“But what if the wrongful conduct takes place before conception? Can the defendant be held accountable if his act was completed before the plaintiff was conceived? Yes, for it is possible to incur, as Justice Holmes phrased it in the Dietrich case [Dietrich v Inhabitants of Northampton, 138 Mass 14] ‘a conditional prospective liability in tort to one not yet in being.’ It makes no difference how much time elapses between a wrongful act and a resulting injury if there is a causal relation between them. Let us take the hypothetical case of an infant injured after birth by a defective household device * * * Would there be a right of action against the manufacturer despite the fact the negligence took place before the child was conceived?” (Zepeda v Zepeda, 41 Ill App 2d 240, 249-250).

Suppose an infant suffered injury from defective baby food or infant formula, negligently manufactured before its conception? Or from the negligent puncturing of its mother’s uterus? We must consider what makes sense and is just, so long as it is not in conflict with sound legal principles.

There is no New York decision in which a claim such as this has been enforced; however, “The absence of precedent should give no immunity to one who by his wrongful act *398has invaded the right of an individual. No right is more inherent, more sacrosanct, than that of an individual in his possession and enjoyment of life, his limbs and his body. The law is not static and inert, but is sufficiently elastic to meet changing conditions. It is presumed to keep pace with present-day concepts.” (Woods v Lancet, 278 App Div 913, 914 [dissenting opn], revd 303 NY 349.)

The Court of Appeals may wish to examine this question in view of the trend in the decisions and commentaries, as well as the injustice evident in the denial of the opportunity to such children to prove their cases.

Defendants’ arguments regarding the Statutes of Limitation do not foreclose the infant plaintiff. The order granting summary judgment on the ground that the complaint fails to state a cause of action should be reversed as to him.

Kupferman, J. P., Birns and Ross, JJ., concur with Bloom, J.; Carro, J., dissents in an opinion.

Order, Supreme Court, New York County, entered on April 8, 1980, affirmed, without costs and without disbursements.

. For our purposes, the truth of the allegations of the complaint is accepted.

. While the companion cases of Becker v Schwartz and Park v Chessin (46 NY2d 401, 408) dealt with allegations of preconception tort, those allegations involved “wrongful life”, i.e., “the validity of a cause of action seeking compensation for the wrongful causation of life”. It was not contended that the defendant physicians’ treatment of the respective mothers cause the abnormalities in their infants, but that they would not voluntarily have conceived (Park) or would have terminated the pregnancy (Becker) had they received accurate medical advice. The Court of Appeals did not reach the preconception issue which confronts us here but based its holding, that such a cause of action for “wrongful life” does not exist, on other grounds.