M.S.S. v. Robert J. Demaio

COBB, J. Petitioner, a minor plaintiff in a medical malpractice action, seeks certiorari review of an order directing his parents to answer deposition questions or risk dismissal of the plaintiff's complaint.1{/Cite} Christine Shelton, the mother of petitioner, filed the medical malpractice action as the plaintiff's ""next friend."" The complaint sought damages for the minor plaintiff's prenatal and neonatal neurological injuries allegedly caused by the doctors and hospital's negligent diagnosis and treatment.2{/Cite} The complaint was later amended to substitute a guardian ad litem in the place of the mother as the next friend of the minor plaintiff. The mother's hospital records and conversations with medical personnel indicate that during her pregnancy she ingested cocaine and smoked marijuana. Upon learning that the mother had taken drugs during her pregnancy, the defendants took the depositions of the mother and father and posed questions regarding their residence during the mother's pregnancy and the frequency of the mother's drug usage. The mother and father refused to answer the questions on fifth amendment grounds, claiming that their answers could be incriminating. The defendants filed a motion to compel answers to the certified questions and a motion to dismiss the plaintiff's complaint. After a hearing on the motions, the trial court ordered that the mother and father answer the certified deposition questions regarding their residence and the mother's drug usage prior to and during her pregnancy. The court also ordered that the plaintiffs complaint would be dismissed if the mother and father did not answer the certified questions.