Wrongful pregnancy claim states a valid cause under negligence; damages OK

by • May 1, 2009 • UncategorizedComments Off on Wrongful pregnancy claim states a valid cause under negligence; damages OK1454

© 2009 The Medical-Legal News

In a case of first impression, a Colorado appeals court upheld a woman’s right to receive damages for her pain and medical complications when an unwanted pregnancy resulted in a healthy birth. The case was Dotson v. Bernstein, No. 08CA002 (Colo.App. 2009).
The trial court had dismissed the case for failure to state a claim as it reasoned that no injuries recoverable under tort law had occurred where a healthy baby was born.
The appeals court would not use the terms “wrongful birth” or “wrongful life,” as these terms describe the results of negligence and are not torts in themselves.
The appeals court, in reversing the trial court, said: “…here, plaintiff has stated a valid claim for negligent failure to terminate her pregnancy… plaintiff suffered economic and non-economic damages, including medical expenses and pain and suffering associated with labor, delivery and subsequent medical complications from the birth. These are consequential damages….”

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