Burton Craige recently submitted an amicus brief with attorney Andrew J. Schwaba on behalf of the North Carolina Advocates for Justice in Jenkins v. Hearn Vascular Surgery P.A., addressing the question: “Is a child injured by prenatal medical malpractice barred from bringing a cause of action if the negligence occurred early in the pregnancy?” A copy of the brief may be viewed here.
Summary of the Brief: “Decades ago, North Carolina joined nearly every other state in recognizing that survivors of prenatal medical malpractice can bring negligence claims against the doctors responsible for their injuries and birth defects. … Our courts did not make recovery dependent on a fetus’s gestational age at the time of the negligence.
The question of whether North Carolina’s Wrongful Death Act, N.C.G.S. § 28A-18-2 creates a cause of action for the wrongful death of a nonviable fetus has no relation to claims of common law negligence. When it is reasonably foreseeable that negligent care could injure a woman’s future child, doctors have the duty to avoid negligently placing the future child at risk of injury. This duty does not depend on whether a fetus has reached the stage of viability. Accepting a contrary rule would run counter to North Carolina law, break ranks with every other state, and deny a remedy to injured children who will suffer their entire lives because of avoidable medical negligence.”