Torts Ch.

8 pgs 478-493 10/26/2010

5. Unborn Children
Endresz v. Friedberg
Relevant Facts— The P was 7 months pregnant with twins when she was injured in a car
accident in 1965. Two days later the boy and girl babies were delivered stillborn.
Procedural History— The P and her husband brought 4 claims: 2 for the wrongful deaths, the
medical, hospital, and funeral expenses incurred from each child. The Ps sought $100,000
in damages. The court at Special Term dismissed the 2 suits of wrongful death. [I assume
the P is appealing this]
Issue Presented— Is a fetus a person? Should the death of unborn, yet viable fetuses be wrongful
death in tort claims?
Holding— As a matter of public policy, a cause of action for pecuniary loss should not accrue to
the distributes of a fetus stillborn by reason of the negligence of another; the damages
recoverable by the parents in their own right afford ample redress for the wrong done.
Reasoning— Legislature didn’t mean to include unborn fetuses within the term decedent in the
EPTL. The fetus when deprived of life while yet unborn is never faced with the prospect
of impaired mental or physical health. The law doesn’t consider a fetus as having a
separate judicial existence until its born.
Judgment/Disposition— Order appealed affirmed.
*** “An overwhelming majority of jurisdictions has held that the reasons supporting the denial
of a claim were no longer persuasive and has allowed a cause of action for prenatal
injuries when they were inflicted on a viable fetus who was subsequently born alive.”

Procanik by Procanik v, Cillo

Relevant Facts— Mrs. Procanik, the mother of the infant P, found out she had measles and
informed her obstetrician. He did a test to find out if it was the German measles which
would result in horrible birth defects and probably prompt an abortion. He negligently
read the results and determined she had the infection as a child when she actually had it
during the first months of her pregnancy. The baby was born with congenital rubella
syndrome and has multiple birth defects including eye lesions, heart disease, and auditory
defects. The D doctors do not deny that they owed a duty to the infant P.
Procedural History— Summary judgment granted because claim failed to state a cause of action
upon which relief may be granted. The Law Division granted D’s motion to dismiss, and
the Appellate Division affirmed. The P moved to amend the claim to recover as special
damages the expenses he will incur as an adult for medical, nursing, and related health
care services; Appellate Division denied leave to amend.
Issue Presented— Should summary judgment have been granted on the “wrongful life” claim
brought by the infant P and parents?
Holding— The infant P may recover as special damages the extraordinary medical expenses
attributable to his affliction, but that he may not recover general damages for emotional
distress or for an impaired childhood.
Torts Ch. 8 pgs 478-493 10/26/2010

Reasoning— The claim for medical expenses attributable to the birth defects is reasonably
certain, readily calculable, and of a kind daily determined by judges and juries. This is
not premises on the concept that non-life is preferable to an impaired life, but is
predicated on the needs of the living. These, unlike pain and suffering for being born, are
not subject to wild swings and will carry sufficient sting to deter future acts of medical
malpractice.
Judgment/Disposition— Appellate Division decision affirmed in part, reversed in part, and the
matter is remanded to the Law Division. The infant P has leave to file an amended
complaint asserting a claim for extraordinary medical, hospital, and other health care
expenses.
*** “The terms ‘wrongful birth’ and ‘wrongful life’ are but shorthand phrases that describe the
causes of action of parents and children when negligent medical treatment deprives
parents of the option to terminate a pregnancy to avoid the birth of a defective child.’