Appeals Court Rules Unborn Child Can Sue for Negligence


A child conceived but not yet born at the time of a negligent act can later sue over the negligence, a Wisconsin state appeals court has ruled. When a county judge dismissed a medical malpractice lawsuit brought on behalf of a 2-year-old boy whose father died from colon cancer, his decision was erroneous according to the District 2 Court of Appeals.

Judge Michael Gibbs wrongly concluded that Joseph Brusa, Jr. could not sue because he wasn’t born until 18 months after Joseph Sr.’s cancer was misdiagnosed by Dr. Robert Fasano as “probable diverticulitis.” Dr. Fasano recommended a follow up colonoscopy that revealed a tumor. The lawsuit filed on behalf of Joseph Jr. claims Dr. Fasano was negligent because he did not immediately diagnose Brusa’s colon cancer. Joseph Sr. died four months after his son was born.

The appeals court ruled that a child conceived but not yet born at the time of the negligent act can later sue for loss of companionship due to medical malpractice.