In a wrongful birth action, the plaintiff alleges that the defendant failed to detect birth defects in utero and had the defects been detected the parents would have taken steps to terminate the pregnancy. Damages in such an action are the increased financial obligation to the parents arising from the extraordinary medical treatment the child will need during his/her minority.
In Foote v. Albany Medical Center, the plaintiffs brought a wrongful birth action claiming through their expert that while government services were available to pay for the cost of care for the child, those services only provided a baseline and did not provide the child with "optimal" care. The Supreme Court granted the defendants' motion for summary judgment finding that the plaintiffs failed to raise a question of fact as to whether they had or will incur extraordinary expenses in raising the child because of the availability of government services. The Third Department, however, reversed finding that the plaintiffs' expert affidavit raised a question of fact as to whether available government services were sufficient to meet all of the child's needs. The Third Department also noted that to the extent government services were available, they would be set off as collateral sources.
Today the Court of Appeals affirmed holding that the plaintiffs raised a question of fact as to whether there is a difference between the resources provided by government programs and the extraordinary medical and other treatment or services necessary for the child. The Court, however, did not express an opinion whether pursuant to the statutory collateral source rule "'the availability of another source of compensation does not obviate'" plaintiffs' injury but, instead, can only offset any damages awarded after trial (Foote, 71 AD3d at 28). That issue, along with issues pertaining to liens, if any, and the underlying medical malpractice issues remain open for consideration by Supreme Court."
The implication should be that damages are limited to only what the parents will have to pay out-of-pocket, above and beyond what is already publically available at no charge to them, in order to meet the child's actual needs.