Albala v. City of New York

Carro, J. (dissenting).

Should New York permit a cause of action for “preconception tort”?

On December 27, 1971, an abortion was performed on the mother of the infant plaintiff, during the course of which her uterus was perforated.1 She brought a malpractice action in June, 1973 against the city and the Health *394and Hospitals Corporation, which was settled in 1979. In the interim she conceived again, and on June 3, 1976, the infant plaintiff Jeffrey Albala was born. The present action was commenced in September, 1978 for brain damage directly caused by the negligent injury to his mother’s uterus,…