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Unusual medical malpractice lawsuit raises question of damages

Medical malpractice lawsuits in Ohio are variations of basic lawsuits for negligence. In addition to proving that the defendant owed the plaintiff a duty of care, one of the elements that the plaintiff must also prove to be successful is that some harm ensued as a direct result of that breach of duty.

In a negligence case, harm is generally measured in terms of money: the damage to the plaintiff is quantified into a dollar value, and that in turn forms the basis of an award if the plaintiff prevails. A recent case involving two female partners who sought to have a child by artificial insemination has led to a medical malpractice lawsuit by them against the sperm bank.

The lawsuit is based on the allegation that the sperm bank used the wrong donor, a black male, instead of the white male that the plaintiffs had specified. The mother-to-be learned of the donor mistake, which appears to have been the result of someone misreading a handwritten note, about five months into the pregnancy.

The child born as a result of the mix-up appears to be healthy. The plaintiffs' allegations of harm appear to be based on emotional considerations. The population of the community they live in is almost entirely white. Thus, for example, one of the allegations of harm appears to be the anticipated difficulty of finding an appropriate individual to cut the child's hair.

Another aspect of the medical malpractice lawsuit that is out of the ordinary is that it appears to seek an injunction remedy against the defendant to change to policies. How the alleged damages to the plaintiffs can be quantified into dollar amounts may be one of the most interesting aspects to this lawsuit.

A wrongful death can be the basis for a medical malpractice action, and its harm can be converted into a monetary value, but what amounts to a wrongful life lawsuit may prove to be more challenging. If they are successful, however, the plaintiffs may prove able to open the door to a new type of medical malpractice claim.

Source: WLTZ, "Sperm bank mixup triggers lawsuit," Oct. 9, 2014

Secondary Source: WKYC, "Ohio women sue after receiving wrong sperm," Sara E. Shookman, Oct. 2, 2014

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