QUESTION:
Can I sue and EMS company for telling me I am fine to go home after a car accident? They told me I’m fine so I went home. But 45 minutes later I had to be rushed to the ER for an emergency C-section because my baby’s heart rate kept dropping.
ANSWER:
Parents may have a cause of action for “wrongful birth” against a medical professional whose negligence led to an undesired birth … even if the child is born healthy. Medical professionals clearly owe a duty to patients who consult them for the express purpose of avoiding parenthood. [Custodio v. Bauer (1967) 251 CA2d 303, 318–324, 59 CR 463, 473–476 & fn. 11]. Moreover, physicians serving on an on-call basis to a hospital emergency room, who render emergency obstetrical services in good faith, are immune from liability for any negligent act or omission in connection with that service. [Bus. & Prof.C. § 2395.5(a)]. However, immunity is not available in the following situations: The injury is caused by an act or omission amounting to gross negligence, recklessness, or willful misconduct; The physician was paid for serving or is required to serve on an on-call basis; The hospital has not expressly (in writing) accepted liability for the physician’s negligent acts or omissions; The physician provided prior medical treatment or diagnosis to the same patient for a condition having a bearing on, or relevant to, treatment of the obstetrical condition that required emergency services; Before rendering emergency obstetrical services, the physician had a contractual obligation or agreement with the patient, another physician or a third party payor on the patient’s behalf, to provide the obstetrical care; Before rendering emergency obstetrical services, the physician had a reasonable expectation to be paid for those services. It would be best to seek personal assistance from a lawyer in order to guide you in filing a personal injury claim.