Spina Bifida Malpractice Verdict Reduced By Joy Of Parents
27 Jul 2007
July 19, 1999
In an unusual approach to a "wrongful birth" claim, the jury in Lodato v. Kappy, reduced the award to the parents of a child born with spina bifida by the amount of joy each of his parents experience because of him.
The jury awarded Deborah Lodato and her husband $2.276 million, finding that the Obstetrical & Gynecological Group of Metuchen failed to tell her that a prenatal test she had canceled was time-sensitive.
The award included $1.2 million in future medical costs and $500,000 and $250,000 to the mother and father, respectively, for mental distress and anguish. The jury reduced Deborah Lodato's portion of the award by 50 percent, based upon her share of negligence in canceling the appointment.
Then, following the Court's instructions, the jury adjusted the verdict to account for each parent's degree of happiness over the birth of Ryan Lodato despite the fact that he was born with spina bifida on Feb. 20, 1993, and now walks with braces, has bladder and bowel incontinence and suffers from short-term memory and attention problems.
For Deborah Lodato, it was 35 percent. For her husband, Anthony Lodato, it was 25 percent. Reducing their respective awards by those proportions, the jury reduced the total verdict to $1,851,379. The "burden vs. benefit" analysis Hague employed comes from the Restatement (Second) of Torts 920. The rule states that whenever someone's negative conduct causes a burden, any incidental benefit must be factored into the total award.
The Lodato's lawyer objected to the ruling and moved for an interlocutory appeal. He argues that Restatement 920 may apply to wrongful-life cases when a claim is made for damages to provide for the ordinary care of a child, but not to wrongful-birth cases, which include damages for emotional suffering. Other plaintiffs' lawyers say a benefit vs. burden determination could wipe out or substantially undermine emotional distress damages in wrongful-birth cases.
At least 14 states have adopted the benefit vs. burden theory in wrongful-birth cases.
