Judge: Doctor can be sued for death of 2-hour-old baby

BRIDGEPORT — A Stamford doctor can be sued for allegedly causing the death of a baby while removing an intrauterine device from the mother, a judge ruled Wednesday.

The case came down to whether a 22-week-old baby, which was born alive but died soon afterward, can be considered a plaintiff in a wrongful death lawsuit.

Lawyers for Dr. Corrinne de Cholnoky claim it was not a viable baby, and therefore the lawsuit should be dismissed.

But in a 25-page decision, Superior Court Judge Michael Kamp ruled it is not the age of the fetus, but the fact that it was born alive that matters.

“This is a complex issue other courts have wrestled with in the past,” the judge stated. “No Connecticut law provided by the defendants or discovered by the court suggests that there is a viability requirement for infants born alive when they were not viable fetuses immediately prior to their birth.”

The case is now scheduled for a jury trial on Oct. 14.

David Slossberg, the attorney for the mother, Melanie Foster, declined to comment on the case. De Cholnoky’s lawyer, James Rosenblum, wouldn’t comment on the ruling but called his client’s treatment of Foster, “Medically defensible.”

In April 2011, Foster had gone to Dr. de Cholnoky complaining that five months had passed since her last menstrual period and requested that de Cholnoky remove the IUD the doctor had previously inserted into Foster, according to the lawsuit.

De Cholnoky did not perform a pregnancy test on Foster, but instead attempted to remove the IUD using forceps, causing a rupture of the woman’s fetal membrane, the suits states.

An ultrasound later determined Foster was 20 weeks pregnant. Foster and her husband were advised there was a high risk of losing the pregnancy but she refused to have an abortion, the lawsuit states.

On April 17, 2011, Foster arrived at Norwalk Hospital, suffering from maternal fever and a high white-blood-cell count, the suit states. Her doctor there, concerned that she could die, decided to induce labor.

Annalise Lili Foster was born at 6:50 in the morning and died less than two hours later.

The lawsuit was filed by Foster as administrator of the estate of Annalise Lili Foster and claims de Cholnoky failed to exercise reasonable care, was negligent and “departed from the applicable standard of care in a variety of ways, which were the actual and proximate cause of Annalise Lili Foster’s death.”

In their motion to dismiss the case, the lawyers for the doctor contend there is no dispute that the baby was not viable at time of her death, and that this entitles them to a dismissal. They claim viability is a requirement of state law and is a requirement in other jurisdictions including. They also said viability is supported by the U.S. Supreme Court’s groundbreaking abortion decision in Roe v. Wade.

Slossberg countered that the viability standard has been utilized in cases where a fetus dies in utero, but the standard does not apply when the baby is born alive.