New York Court Rules Girl Can Sue Over Injuries Sustained Before Birth

State   |   Steven Ertelt   |   Feb 27, 2007   |   9:00AM   |   WASHINGTON, DC

New York Court Rules Girl Can Sue Over Injuries Sustained Before Birth Email this article
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by Steven Ertelt Editor
February 27
, 2007

Brooklyn, NY ( — In a landmark ruling, a New York state appeals court has ruled that a seven year-old girl can file suit against the city of Brooklyn for injuries she sustained while she was an unborn child. The ruling is an important decision hailing the rights of unborn children.

When Sarah Elizabeth Leighton was 14 weeks into the pregnancy, her teacher mother was injured when a public toilet collapsed at the school where she worked.

That January 1999 accident ruptured Esther Portalatin-Leighton’s placenta and caused Sarah’s premature birth less than four months later.

Sarah was eventually born with both physical and mental disabilities and her family contends they were the result of the injury and the premature birth it caused. The Leighton family sued the city for $1 million in damages.

Steven Ferber, the family’s attorney, told the New York Daily News that the family is "thrilled" with the decision allowing Sarah’s lawsuit to move forward.

During the hearing on the suit, city attorneys claimed that Sarah didn’t have the right to sue because she would have had to have been able to survive outside of her mother’s womb in order for her to file suit and win an award.

The newspaper reported that Brooklyn Supreme Court Justice Martin Solomon agreed in a September 2005 ruling, but the state appeals court overturned that decision.

The court handed down a strong ruling saying that any unborn child has the right to have a lawsuit filed on their behalf as long as injuries occurred after conception and the child was born alive.

The court made certain the decision did not touch on the abortion issue.

"Abortion cases are genuinely distinguishable from the [Leighton] case since fetuses which are aborted are not born alive," Brooklyn Appeals Court Justice Gloria Goldstein wrote, according to the Daily News.

"However, if the abortion fails and causes injury to the fetus who is later born alive, the child may have a cause of action sounding in medical malpractice to recover damages for the injuries sustained," Goldstein concluded.