Ermoian v. Desert Hospital

Ermoian v. Desert Hospital, No. EO36982 (Cal.App. June 22, 2007)

The Court of Appeal for the Fourth District of California affirmed a lower court’s judgment in favor of a hospital and nurse in a suit filed on behalf of a patient who was born with unpreventable brain abnormalities that left her severely mentally retarded. The patient filed a lawsuit based on breach of contract, promissory estoppel, and wrongful life claims, alleging that the hospital and nurse were negligent in failing to inform the mother of the patient’s abnormalities prior to her birth, thereby depriving the mother of the opportunity to make an informed choice to terminate the pregnancy.

On the breach of contract and promissory estoppel claims, the appeals court concluded that the "patient rights and responsibilities" document and the informed consent forms for tests on the fetus did not constitute an enforceable contract or promise for any particular outcome regarding the mother’s pregnancy and, because of this, these claims failed as a matter of law.

On the wrongful life claim, the appeals court concluded that the hospital and nurse were not negligent in providing the mother’s treatment, as is required for a medical malpractice action. Also, there was substantial evidence that the acting physicians were not agents of the hospital, and thus the hospital could not be vicariously liable for their allegedly negligent actions. Finally, the appeals court found that there was substantial evidence that the acting physicians were not negligent in their treatment of the mother, noting that "[f]ailing to offer an abortion as a treatment alternative cannot fall below the standard of care if, as here, the evidence showed that the fetus was beyond the twenty (20) month gestation [period] and the mother’s health was not at substantial risk. "