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ufilogoFrom ADF:

In Dotson v. Dell L. Bernstein, P.C., M.D., No. 08CA0020 (Colo. App. March 5, 2009) the Colorado Court of Appeals ruled that Dionne Dotson can seek legal redress against an allegedly “medically negligent” abortionist for failing to terminate her pregnancy.

Plaintiff, Dionne Dotson, sought the services of defendant, Dell L. Bernstein, M.D., to terminate her unwanted pregnancy but later gave birth to a healthy baby. Plaintiff filed a complaint against defendant, alleging negligent medical treatment causing injuries resulting from the pregnancy, delivery, and financial burden of raising an unplanned child, and requesting damages connected to the pregnancy and childbirth and the costs of rearing and educating the child. On defendant’s motion, the court dismissed plaintiff’s complaint for failure to state a claim. The court determined that, because plaintiff had delivered a healthy child, she suffered no legally cognizable injury. We reverse and remand. […]

To state a claim sounding in negligence upon which relief may be granted, a complaint must identify (1) a legal duty the defendant owes to the plaintiff, (2) the defendant’s breach of that duty, and (3) an injury to the plaintiff that is (4) proximately caused by the defendant’s breach. Lininger, 764 P.2d at 1205 (citing W. Prosser & W. Keeton, The Law of Torts 164-65 (5th ed. 1984)). The distinction between an ordinary negligence claim and a medical negligence claim is that, in the latter, the duty is breached when a physician’s treatment falls below the applicable standard of care. […]

Here, the allegations of plaintiff ’s complaint, taken as true, set forth a medical malpractice claim based on the failure of her doctor to prevent the birth of an unwanted child. Although presented for the first time in a Colorado appellate court, this is a recognized claim for relief. […]

Similarly, here, plaintiff has stated a valid claim for negligent failure to terminate her pregnancy, and the allegations in the complaint, taken as true, would entitle plaintiff to relief. Specifically, the complaint included allegations that, as a result of giving birth, plaintiff suffered economic and noneconomic damages, including medical expenses and pain and suffering associated with labor, delivery, and subsequent medical complications from the birth. These are consequential damages to which, if proved, plaintiff would be entitled. See Chaffee v. Seslar, 786 N.E.2d 705, 708 (Ind. 2003) (collecting cases) (recoverable damages may include pregnancy and childbearing expenses).


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