Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/birth injury case and its proceedings.)
The Barragan Court recognized that a wrongful life action exists in favor of the plaintiff child where the child proves the defendant negligently failed to diagnose and warn the parents that their baby had a probability of being born with a genetic ailment or disability and where the baby is in fact born with that ailment or disability. (Id. at p. 1004.) In that case, however, neither element existed.
During the period of time where the mother had the right to abort her pregnancy, the pregnancy was progressing normally and there was no indication that the plaintiff twins had any defects that were substantially certain to occur. (Id. at p. 1005.) Therefore, Dr. Lopez had no duty to advise the mother that she had a right to abort her child. Stated differently, Dr. Lopez had no duty to advise the mother of a non-existent probability of harm to the twins. Once the mother began experiencing complications with her pregnancy, the twin fetuses were already viable and it would have been a breach of the standard of medical care to offer an abortion to the mother. (Id. at p. 1006.)
In addition, the medical expert testimony established that nothing done by Dr. Lopez caused any injury to the plaintiff twins. The expert testimony established both that cerebral palsy occurs in the absence of professional negligence and there was no test Dr. Lopez could have performed that would have predicted the twins would be born impaired. (Id. at p. 1006.) (See Part 7 of 10.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.