Question

Read the overview below and complete the activities that follow.

For medical malpractice to be proven, all 4 elements of negligence must be present: Duty, Breach of Duty, Proximal Cause, and Harm.

Defendants may deny wrongdoing, or take an affirmative or technical defense. Review this case and consider the elements of negligence and potential defenses.

Case:

In a case filed in the state of New York, the plaintiffs, a married couple - Mr. and Mrs. A - sought reproductive assistance through an in vitro fertilization (IVF) center in order to have their own biological child. After a successful IVF procedure, the couple's child was born, a baby girl. However, the race of the baby did not appear to be the same as the race of the parents. The couple filed a claim for negligence against the IVF center after confirming by DNA test that Mr. A was not the baby's biological father. The couple also claimed that the defendants committed assault and battery since the plaintiffs did not consent to fertilization with a stranger's sperm during the in vitro fertilization procedure. In order for the defendants to be found negligent when they fertilized the plaintiff, Mrs. A's egg with a stranger's sperm instead of Mr. A's sperm, the elements of negligence must be present. The elements of negligence are duty, breach of duty, proximal cause, and harm. Battery and assault are intentional tort. It is considered battery if a procedure is done without the patient's consent. The couple claimed that the injury caused by the defendant's action caused them the emotional distress of raising a child that is of a different race, and not genetically their own, even if they love Baby A as their own. They claimed to anticipate emotional distress for themselves and Baby A as she grows older with the confusion of her identity. The defendants claimed that because they only had a duty to Mr. and Mrs. A (the patients), not Baby A, the defendants cannot be held liable for the claims for Baby A's emotional distress.

Read the case below and answer the questions.

1.) Is this a case of negligence?

2.) Do you believe a battery occurred? Why or why not?

3.) What affirmative defense might the defendant have used in this case?

4.) In this case, where is: A) The duty, b) The breach of duty, c) The proximal cause, d) The harm. Do you believe there is a valid negligence claim for Mr. and Mrs. A? For Baby A?

5.) Risk Management is an approach to reducing the likelihood of malpractice suits. As a result of this incident, what are some things that the IVF facility risk manager might be concerned about, or wish to investigate?

Answer 1

1)This is a case of pure negligence because it is the responsibility of the center to be vigilant ,do their duty accurately, counter check or cross check their work before initiation in order to avoid error. The main reason of this concern is that, once if the error happens it cannot be changed or altered in future and will be a distress to the client.

2)A battery has occurred here because of the center's negligence. On behalf of the child's emotional distress now the so called parents can raise concern that they have cause a battery

3)The only affirmative defense which the defendant can raise is that they have the right to be asked if something goes wrong with the client bit not with the baby born because they have no contract signed between them and the baby legally .

4.The healthcare professional and the organization has not done their duty properly.

The error or the negligence is categorized into breach of duty

The proximal cause here is wrong sperm(a sperm from different race) injected in the women's ovum to fertilize has led to birth of a baby who is not biologically related to the parents result in mental stress.

This is the harm cause to the born child in regards to their biological parents

There is a valid negligence for Mr. A and Mrs. A because they didn't get their own biological child.

The claim by the baby can be difficult at this point but can be claimed if the child wants to know it's biological father in future. This can create a huge concern on the third person who is not actively involved or consented in the birth of the child with his sperm .

5.The IVF risk manager can be concerned about

• The name and fame of the center or it's reputation in the society
• Very high risk for loosing financial status of the team is a claim in the law
• Chance for decrease in client inflow and the profit out of it.