Only published on occasion and it is 100% Spam FREE! See News Example here.

Interesting Decision on "Loss of Fetus"

June 17, 2015
By: Scahill Law Group PC

Judge Tapia of Bronx County Supreme Court issued an interesting decision on March 31, 21015 on the issue of whether premature labor, causally related to a motor vehicle accident can qualify under the "Loss of Fetus" set forth in the definition of Serious Injury under Insurance Law § 5102 (d).

In 2011, the Appellate Division Second Department addressed the issue in Damas v. Valdes, 84 A.D.3d 87, 92-93, 921 N.Y.S.2d 114 (2011), stating, "We hold, as a general matter, that a plaintiff's prolonged period of bed rest ordered by a treating physician as a means of dealing with diagnosed preterm labor causally related to an automobile accident may, upon the submission of appropriate proof, qualify for judgment as a matter of law in favor of the plaintiff under the definitional standard of the 90/180-day category of Insurance Law § 5102 (d), even if the labor does not advance to the point of premature delivery or spontaneous abortion of the fetus."

Judge Tapia extended the concept noting premature labor, as a matter of law, outside of the 90/180 day category, separately qualifies as a serious injury under the "loss of fetus section of Insurance Law § 5102 (d)." As discussed above, although the Second Department has already ruled on this issue, the First Department has not. While this Court is mindful of the need to screen out cases of minor injuries, premature birth cannot be viewed as the type of insignificant injury the No-Fault regime sought to weed out nor can the medical conditions resulting from the premature birth be dismissed outright as insignificant. The Court finds that generally speaking, where there is adequate evidentiary support, a premature birth precipitated by a motor vehicle accident qualifies as a "serious injury". Rather than have to tie this serious injury to another category, i.e., permanent or significant loss or limitation or the resulting disfigurement, the "loss of a fetus" category should be sufficient to stand alone as grounds for recovery. Otherwise, as demonstrated by the facts presented, an injury to a fetus whereby the gestation period is cut short by almost one third, would not be compensable. This is not a result that was intended when this category was added. It should be problematic that what disqualifies premature birth from recovery, is the fact that the fetus is born alive, that is, if a fetus survives a motor vehicle accident, there is no grounds for serious injury. This is very strange logic and if interposed into any of the other categories each serious injury threshold would be insurmountable. It makes even less sense to impose such a harsh exception upon expecting mothers given their specific vulnerability. A common sense approach to dealing with premature birth in light of the inherent seriousness of the injury should be adopted."

Small logo
Scahill Law Group P.C.
1065 Stewart Avenue, Suite 210
Bethpage, NY 11714
(516) 294-5200
(516) 873-6229

Copyright © 2020 Scahill Law Group P.C.
Site design by Ralph Rosario

chevron-downphoneenvelopefaxcrossmenu linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram