Child Born With Defects Can Sue For Negligent Amniocentesis

A pregnant woman was referred to a physician because she had developed gestational diabetes. The physician performed an amniocentesis to determine whether the fetus's lungs were mature enough to induce early labor. When the physician performed the procedure, bleeding occurred. The physician then turned the woman's care over to his partner and was not involved in any further care of the mother or fetus. Complications arose from the unsuccessful amniocentesis. The woman underwent a caesarean section later that day to deliver the child. The child was born with damaged kidneys and cerebral palsy.


The child, through her father as next friend, sued the physician and his medical practice for medical malpractice under Virginia's Medical Malpractice Act (VMMA), and one for common law medical malpractice. The jury returned a $7 million verdict in the child's favor. The City of Roanoke Circuit Court held that the child was the physician’s patient because at the time she was born alive she became a “patient” under the Act, that her claim arose under the VMMA rather than Virginia common law, and the claim was subject to the Act's statutory cap on damages. The trial court therefore reduced the verdict to the $1.4 statutory cap on damages.


The Supreme Court of Virginia affirmed holding that the unborn child became the physician's patient upon being born alive, and the physician's performance of the amniocentesis provided health care to the child and mother, such that the VMMA’s statutory cap on damages applied to the child’s claim for negligent performance of the amniocentesis. The court reasoned that in passing the VMMA, the legislature clearly intended to have the statutory cap apply in any verdict returned against a health care provider in an action for malpractice.


The VMMA defined a “patient” as any natural person who receives or should have received health care from a licensed health care provider except those persons who are given health care in an emergency situation which exempts the health care provider from liability for his emergency services. The court has consistently held that a fetus is part of the mother, and injury to the fetus is injury to the mother. If the fetus is never born alive, the fetus never develops a legal claim, but the mother may recover for the physical injury and mental suffering associated with a stillbirth. However, if the child is born alive, the child may bring a claim for the injury suffered in utero.


The evidence presented at trial was that the amniocentesis was performed, at least in part, for the fetus's benefit to determine whether her lungs were developed enough that she could be safely delivered. When the physician performed this procedure, he was providing health care to the fetus and the woman. If the fetus had never been born alive, the woman would have been able to recover for the physical and emotional injuries associated with a stillbirth. However, once the child was born alive, she became a natural person under the Act. Upon birth, she became a patient of the physician under the Act and had her own claim against him. Under the Act, her claim for negligence included health care provided in utero.


See: Simpson v. Roberts, 2014 WL 92032 (Va., January 10, 2014) (not designated for publication).