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Kassama v. Magat2/28/2001
rred by a birth-defective child, but in denying the child's own right to recover those expenses, must yield to the injustice of that result. The right to recover the often crushing burden of extraordinary expenses visited by an act of medical malpractice should not depend on the "wholly [fortuitous] circumstance of whether the parents are available to sue." Turpin v Sortini, supra, 31 Cal.3d at 328, 643 P.2d at 965, 182 Cal. Rptr. at 348.
The present case proves the point. Here, the parents' claim is barred by the statute of limitations. Does this mean that Peter must forego medical treatment for his blindness, deafness, and retardation? We think not. His claim for the medical expenses attributable to his birth defects is reasonably certain, readily calculable, and of a kind daily determined by judges and juries. We hold that a child or his parents may recover special damages for extraordinary medical expenses incurred during infancy, and that the infant may recover those expenses during his majority. Procanik, 478 A.2d 762.
Judge Schreiver, dissenting in part in Procanik, countered:
t is unfair and unjust to charge the doctors with the infant's medical expenses. The position that the child may recover special damages despite the failure of his underlying theory of wrongful life violates the moral code underlying our system of justice from which the fundamental principles of tort law are derived. Id. at 772.
We adopt the view accepted by the highest courts of twenty-three of our sister states that have refused to recognize a cause of action for wrongful life because it is an impossible task to calculate damages based on a comparison between life in an impaired state and no life at all. Attempts by the highest courts in California, Washington, and New Jersey to circumvent this problem are unpersuasive.
For the foregoing reasons we hold that the trial judge did not err when he granted the defense motion for judgment as to Ibrion's wrongful-life claim.
JUDGMENT AFFIRMED; COSTS TO BE PAID BY APPELLANTS.
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Maryland Personal Injury Attorneys
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