With its landmark decision of Becker v. Schwartz1 in 1978, the Court of Appeals defined the limits of recovery where it is claimed that a preconception tort or a failure to detect an abnormality in a fetus while a pregnancy could be legally terminated leads to the birth of a disabled child. The decisions since that time have further defined but not expanded the rights of parties to this type of claim. On the other hand, the impact of the “collateral source rule” and the increasing availability of services for disabled persons have significantly limited the prospects for recovery in these cases, and it is anticipated that with the advent of the Affordable Care Act, the range of recoverable damages will be further diminished.
In deciding Becker, the court made it clear that the infant in the wrongful life case has no right of recovery because being born in an impaired state did not give the infant a claim that is cognizable under New York Law. It later clarified in Alquijay v. St. Luke’s-Roosevelt Hospital Center2 that this extends to both general and special damages, such that the infant plaintiff, individually, has no right of recovery for her extraordinary expenses of medical care caused by the disability, even though the need for such medical care is related to tortious conduct.3 The court stated as other New York courts have observed that absent action by the Legislature it is not for the courts to extend liability in this area as a matter of public policy.
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