Firm defeats woman's wrongful birth claim
BOSTON (Sept. 23, 2009) – Pamela S. Gilman and Andrew Weiner recently teamed up to persuade a Massachusetts Superior Court jury to reject a woman’s wrongful birth claim.
The jury needed less than an hour following a two-week trial to find that the firm's client, a physician assistant, was not negligent during the course of her one-time examination of the woman.
The woman claimed she would have aborted her fetus if she had known she was pregnant, and that she did not discover her pregnancy until approximately 29 weeks’ gestation. Under Massachusetts law, an abortion can only be performed beyond 24 weeks’ gestation if necessary to protect the health of the mother, or in other exceptional circumstances. The woman alleged that the physician assistant negligently failed to diagnose her pregnancy. The woman eventually gave birth to a girl who suffers from brain and central nervous system impairments, and is legally blind.
The physician assistant only saw the mother on one occasion when she would have been approximately 24 weeks pregnant based on later ultrasounds that were obtained. At this visit, the woman complained of a sore throat, ear pain and cough. Under those circumstances, defense counsel contended that the applicable standard of care did not require the physician assistant to obtain a detailed menstrual or sexual history, perform an abdominal examination, or review the mother’s chart relating to contraception issues.
The woman claimed her daughter’s permanent impairments would necessitate life-long care services, and was claiming over $27 million in damages.
“This was an unusual case because wrongful birth cases are rarely tried,” Gilman said. “These cases raise a lot of social and moral issues. The jury came from all walks of life and remained attentive throughout the trial. We are grateful they vindicated our client, who appropriately treated the woman during her sick visit.”
The defense verdict represents yet another victory for Gilman, who has tried and won over 40 cases in her distinguished career, including medical malpractice, personal injury, premises liability, products liability and business disputes.
Weiner played a vital role throughout the case, including cross examining at trial the plaintiff’s expert economist on the amount of money needed to provide care for the daughter during her lifetime.
About Taylor Duane
Taylor Duane is one of New England’s leading civil litigation law firms with offices in Boston and Providence. Its experienced trial attorneys appear regularly in the federal and state courts of Massachusetts, Rhode Island and Connecticut. The Providence Business News has named the firm in 2008 and 2009 as one of Rhode Island’s Best Places to Work.
