Earlier this year, in a column addressing significant appellate decisions of 2010, we discussed some recent cases asserting “wrongful birth” claims—where parents seek recovery for extraordinary care expenditures they incur for children born with birth defects as a result of negligence or malpractice that deprived them of the opportunity to avoid or terminate the pregnancy.1 In the course of that discussion, we noted that the Appellate Division, Second Department, was, at least to a limited extent, in conflict with the First and Third departments regarding the circumstances under which such recovery may be had. Specifically, the discrepancy involved whether such recovery may be had when a child’s extraordinary needs have been paid for by governmental programs.
After that column was published, the Court of Appeals decided Foote v. Albany Medical Center Hosp., 16 N.Y.3d 211 (2011), which affirmed the Third Department, and permitted a cause of action to proceed despite services provided by government programs. In light of this development, a more in-depth analysis of these cases is warranted.
Background and Perspective
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