## Facts

- An infant plaintiff, through her father as next friend, sued two physicians for obstetrical malpractice.
- The complaint alleged the physicians negligently inflicted injuries on the child while she was in utero.
- The fetus was alleged to have been viable (capable of living outside the womb) at the time of the negligent conduct.
- The child was later born alive and allegedly suffered serious, lasting impairments attributed to the prenatal injury.

## Issues

1. Whether a viable fetus, later born alive, may maintain a tort action for prenatal injuries negligently caused while in utero, absent a statute expressly authorizing such a claim.

## Decision

- The court denied the defendants’ dispositive motion challenging the legal sufficiency of the claim.
- The court held that a viable child, subsequently born alive, has a cause of action for prenatal injuries negligently inflicted before birth.
- The case was permitted to proceed on the merits.

## Legal Principles

- A viable fetus that is later born alive may be treated as a separate juridical person for purposes of tort liability for prenatal injury.
- Prior authority denying recovery for prenatal injuries did not control where the alleged injury was direct to a viable fetus and the child survived birth.
- The “no cause of action for prenatal injury” rule rested on assumptions inconsistent with medical knowledge and with legal recognition of fetal life in other contexts.
- The absence of prior civil precedent does not bar recognition of a remedy where negligent conduct, if proven, caused compensable injury to an individual.

## Conclusion

The court recognized a tort cause of action for prenatal injuries when the fetus was viable at the time of injury and the child was later born alive, rejecting the categorical common-law bar on prenatal-injury claims and allowing the malpractice action to go forward.


Bonbrest v. Kotz, 65 F. Supp. 138 (D.D.C. 1946)