Re: Australian mother sued by child injured in utero.

[Guest guest]

No pregnant woman can work now I guess, so only the elite may breed.

Might not the vaccines this child got at birth have caused the palsy?

>

> I don't know what the eventual outcome of this was though..

>

> Lancet; 9/14/91, Vol. 338 Issue 8768, p687, 2p

>

> Section: NEWS & COMMENT

> Medicine and the Law

> The New South Wales Supreme Court awarded an 18-year-old woman

$A2.8

> million ([underbar]hx01b[underbar]GCP[underbar]hx01c[underbar]14

> million) after she sued her mother for negligence which caused her

> permanent injury while in utero. The mother's motor insurers were

co-

> defendants. The case has been described as " a landmark " and there

are

> concerns in Australia that the decision will result in a flood of

> claims by children injured as a result of the carrying mother's

> negligence, including excessive smoking and drinking and drug-

taking

> as well as careless driving.(n1)

>

> The plaintiff was born in May, 1973, with cerebral palsy. She has

> impaired sight and speech and has never had full control over her

> body since birth. She alleged that her condition was caused by

> injuries when, 4 months before her birth, her mother had taken

part

> in a cattle muster on the family ranch. Her mother had been driving

a

> pick-up truck when she saw a steer break away. She attempted to

head

> it back bur the truck hurtled down a slope and hit a bank. She had

> little memory of the accident. The trial judge found that she had

> driven and behaved negligently and held (with the assistance of

two

> British paediatric neurologists flown out to assist the

plaintiff's

> Australian team) that the accident was the probable cause of the

> cerebral palsy. The defendants (in effect the motor insurers)

> contended that at the time of the accident the plaintiff was not a

> legal person who could be identified as the victim of the mother's

> action and that the fetus and her mother were essentially one

> personality and there could not be a legal duty of care owed by

the

> mother to herself The judge disagreed. He said: " I would hold that

an

> injury to an infant suffered during ... its journey through life

> between conception and parturition is not injury to a person

devoid

> of personality other than that of the mother-to-be. 's

> personality was identifiable and recognisable. "

>

> The insurance company has indicated that it will appeal.

>

> A child has no separate legal persona from its mother while in

utero

> under British law. However, once born alive it can, if it can

prove

> that it was negligently injured while in utero, claim damages as a

> separate person under the common law--though public policy would

> probably disqualify an action against the mother. There was no

> decision precisely on the point of whether a child injured while a

> fetus can bring a negligence action against a third party until

the

> matter was expressly considered in B v Islington Health Authority

by

> Potts J in the High Court.(n2) He said that " The fact that the

> plaintiff was undefined in law and without status at the material

> time was neither here nor there " . The incident complained of took

> place in 1966. The fetus was injured as a result of a negligently

> performed dilatation and curettage while the mother was pregnant.

The

> fetus survived in a damaged state to be born. The common law was

> superseded by the Congenital Disabilities (Civil Liability) Act

1976,

> in respect of any incident after that Act came into effect. The

> fetus's rights under the 1976 Act are restricted to accord with

what

> is considered desirable as a matter of public policy. They

> crystallise only if the child survives for at least 48 hours, and

> claims cannot be pursued against everybody.

>

> Before the 1976 Act was passed much thought was given to the

question

> of whether a fetus injured in utero should be entitled to sue its

> mother. The Law Commission decided that it should not because it

> could compromise the parent/child relationship and could be used as

a

> weapon in matrimonial disputes. English legislation therefore

> excludes claims by a child against its mother except where

injuries

> are sustained during traffic accidents; here special policy

grounds

> and the availability of insurance were held to justify

admissibility.

> Where a mother is not covered by insurance, however, yet involved

in

> a traffic accident (eg, as a negligent pedestrian) she could, it

> would seem, be liable to the child in damages.

>

> In Scotland the question remains open. " ... there is no reason in

law

> to exclude a claim by a child against its mother in respect of

> prenatal injuries. It is possible, however, that the courts may be

> unsympathetic to such claims on policy grounds. " (n3)

>

> In Britain, these concerns have so far had little practical impact--

> indeed, all over the world there are pregnant women smoking,

> drinking, and engaging in hazardous activities. In England, at

least,

> a fetus must take its mother as it finds her--and if its interests

> and the mother's compete, even to the point of bringing the fetus'

> existence to an end, it is the mother's rights and interests that

> will prevail in law if the mother wishes.

>

> Different attitudes have been expressed in the USA, where women

have

> been constrained and confined with a view to protecting their

unborn

> child from their mother's unsatisfactory lifestyle. In England a

> similar action which purported to be brought by and on behalf of

the

> unborn child was dismissed as disclosing no cause of action since

the

> fetus had no independent locus stand) from its mother, who had a

> wandering life-style and mental problems.

>

> While it remains undesirable that mothers put their unborn babies

at

> risk by negligent or reckless behaviour, it does seem

unsatisfactory

> for mothers to be at risk of suit from their disgruntled or

> dissatisfied children perhaps twenty years later. It has been

mooted

> that this Australian case might strengthen the hand of the anti-

> abortion lobby, but anti-abortion campaigners should bear in mind

> that the decision was not in relation to a terminated life in

utero.

> It is difficult to see how a child born alive though prematurely

> after a lawful abortion can sue unless the procedure was negligent.

>

> (n1.) Milliken R. Independent, Aug 7, 1991: 8.

>

> (n2.) Brahams D. Duty of care to unborn child. Lancet 1990; 336:

1572

>

> (n3.) Mason JK, McCall A. Law and medical ethics, 3rd ed.

> London Butterworths, 1991: 139.

>

> ~~~~~~~~

>

> By Brahams

>

[Guest guest]

This is 17 years old. Has this ever come up as an issue since then for

autism? I don't think so.

Lenny

>

> I don't know what the eventual outcome of this was though..

>

> Lancet; 9/14/91, Vol. 338 Issue 8768, p687, 2p

>

> Section: NEWS & COMMENT

> Medicine and the Law

> The New South Wales Supreme Court awarded an 18-year-old woman $A2.8

> million ([underbar]hx01b[underbar]GCP[underbar]hx01c[underbar]14

> million) after she sued her mother for negligence which caused her

> permanent injury while in utero. The mother's motor insurers were co-

> defendants. The case has been described as " a landmark " and there are

> concerns in Australia that the decision will result in a flood of

> claims by children injured as a result of the carrying mother's

> negligence, including excessive smoking and drinking and drug-taking

> as well as careless driving.(n1)

>

> The plaintiff was born in May, 1973, with cerebral palsy. She has

> impaired sight and speech and has never had full control over her

> body since birth. She alleged that her condition was caused by

> injuries when, 4 months before her birth, her mother had taken part

> in a cattle muster on the family ranch. Her mother had been driving a

> pick-up truck when she saw a steer break away. She attempted to head

> it back bur the truck hurtled down a slope and hit a bank. She had

> little memory of the accident. The trial judge found that she had

> driven and behaved negligently and held (with the assistance of two

> British paediatric neurologists flown out to assist the plaintiff's

> Australian team) that the accident was the probable cause of the

[Guest guest]

I didn't see the date. Now that the CDC has conceded " chemical " cause

and will begin to " explore " the every-chemical-but-those-in-vaccines

theories, maybe it still could come up for autism. Mom ate pesticides;

mom used lawn fertilizer; mom washed the dog; mom used White-out...

>

>

> This is 17 years old. Has this ever come up as an issue since then for

> autism? I don't think so.

>

> Lenny

>

[Guest guest]

>

> I didn't see the date.

Usually the intent of shocking and dated postings is to " gotcha! "

people with an info hot foot -- and you bit.

Now that the CDC has conceded " chemical " cause

> and will begin to " explore " the every-chemical-but-those-in-vaccines

> theories, maybe it still could come up for autism. Mom ate pesticides;

> mom used lawn fertilizer; mom washed the dog; mom used White-out...

>

mom got tattooed, mom pierced her tongue, lip, eyebrow, mom coifed her

pubic hair, mom use her sprint combo cellphone/epilator/microwave. . .

[Guest guest]

....mom broke a tooth on a dated gotcha posting...

> >

> > I didn't see the date.

>

> Usually the intent of shocking and dated postings is to " gotcha! "

> people with an info hot foot -- and you bit.

>

> Now that the CDC has conceded " chemical " cause

> > and will begin to " explore " the every-chemical-but-those-in-

vaccines

> > theories, maybe it still could come up for autism. Mom ate

pesticides;

> > mom used lawn fertilizer; mom washed the dog; mom used White-

out...

> >

>

> mom got tattooed, mom pierced her tongue, lip, eyebrow, mom coifed

her

> pubic hair, mom use her sprint combo

cellphone/epilator/microwave. . .

>

[Guest guest]

Ok, well this particular incident may be going a bit overboard BUT I think it would be great if children injured by their mother's illegal drug or alcohol abuse could sue for damages, after all we've know for a long time the harmful affects of smoking, drinking and drug use on a developing baby.

Meg Naughton, Warrior Momma to my 4 beautiful children, Hailie (11), Darbey Rose (6) Jayden (4) dx with Autism and Duncan (21 mos) dx PDD-NOS, and wife of the most amazing Warrior Daddy on the planet!!

[Guest guest]

I'm no legal expert, but I believe the biggest barrier to this are the

statute of limitations for such civil suits. I wonder if an unmarried

father on the hook for child support and medical expenses might have

some standing, though. Any family law experts out there?

-Lenny

>

> Ok, well this particular incident may be going a bit overboard BUT I

think it would be great if children injured by their mother's illegal

drug or alcohol abuse could sue for damages, after all we've know for

a long time the harmful affects of smoking, drinking and drug use on a

developing baby.

>

>

> Meg Naughton, Warrior Momma to my 4 beautiful children, Hailie (11),

Darbey Rose (6) Jayden (4) dx with Autism and Duncan (21 mos) dx

PDD-NOS, and wife of the most amazing Warrior Daddy on the planet!!

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