Bonbrest v. Kotz

United States District Court for the District of Columbia · 1946 · Torts

TortsPrenatal injuriesMedical malpracticeprenatal injuryviabilityborn alivemedical malpracticetort duty

Facts

The plaintiff infant, through its father and next friend, alleged that defendants' professional malpractice caused injury while the child was still in the mother's womb. The opinion treats the claim as one involving a direct injury to a viable child rather than an injury merely transmitted through the mother. The child was capable of living outside the womb and in fact survived after birth. Defendants had been employed in their professional capacities to attend both the mother and the child.

Issue

Whether an infant who was viable in utero and was later born alive has a right of action in tort for direct prenatal injuries allegedly caused by defendants' professional malpractice.

Rule

A viable unborn child is not merely a part of its mother for negligence purposes; if the child is directly injured while viable and is later born alive, the child has a cause of action in tort for those prenatal injuries.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Cleveland, Dr. Nina Farrow allegedly performed prenatal treatment carelessly, directly injuring a fetus carried by Elena Cruz. At the time, the fetus was 30 weeks old and medically capable of surviving outside the womb. The child, Mateo, was later born alive and now sues through his mother for permanent neurological damage.

Under the governing rule, is Mateo's claim most likely recognized?

Explanation. The majority recognized a cause of action where the child was directly injured while viable and was later born alive. It rejected the fiction that a viable fetus is merely part of the mother and held that such a child has standing to sue for the prenatal injury.