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A mother on behalf of her baby girl and the baby’s twin


A mother on behalf of her baby girl and the baby’s twin, who was dead at birth, filed a complaint against the hospital and three other individuals. The opponent, however, sought an order dismissing the first, second, fifth and sixth reason’s for action asserted in the complaint on the grounds that they failed to state reasons for the action which relief could be granted. The opponent contended that the four (4) reasons for the action were dismissible because no reason for action exists either on behalf of the baby’s twin for injuries and death occurring in the uterus or on behalf of the mother for mental or emotional distress or from loss of society. At the same time, the mother made a motion seeking leave to revise the complaint as to the second and sixth reasons for the action and to add a new one identified as a seventh reason for the action.

The revision proposed for the second reason for the action sought to clarify the allegation that the lack of informed consent to the mother caused serious damages and injuries to her infantand spoke in terms of a reasonably prudent person rather than the mother. The revision proposed for the sixth reason of the action eliminated the mother’s claim for the loss of society, companionship and consortium of the deceased infant and plainly stated that the mother’s claim for the mental distress includes emotional upset in attending the dead infant. The seventh reason for the action proposed that the opponents failed to inform the mother of her condition and the deceased infant’s condition as well as the dangers of the treatment performed and the alternate treatment available. Further, that the lack of informed consent was a proximate reason of the injury for which recovery is sought. The reason for the action would further assert that the mother would not have undergone the treatment if she had been fully informed. The seventh cause of action would then allege that due to the death of the infant, the mother had been rendered sick and continued to suffer great physical pain and mental distress requiring medical care. As the mother opposes the opponent’s motion, she pointed to the tremendous evolution in the concept of tortious conduct within the state law as warranting denial of the dismissal motion. Subsequently, the court in Manhattan ordered that the mother’s motion to revise the complaint is accordingly denied.

The mother moves for an order granting re-argument and renewal of the order. She claims that her request for permission to revise the complaint and include a reason for the action based on lack of informed consent and to re-plead the sixth reason and include the emotional pain and distress in attending the dead infant should be granted.

The complainant mother, in support of the motion, contends that in the previous case decisions there was no settlement between the act of medical malpractice, the death of the fetus and the knowledge of the death which caused the emotional harm since the procedure in assessing the infant’s abnormalities took place several weeks before awareness that the infant had died due to the procedure. In the instant case, the mother contends that the negligence that caused the death of the infant and the knowledge of the death resulted immediately in extreme emotional harm. Even if the mother’s contentions are not entirely clear, it appears that they present two propositions which includes that the mother while in labor witnessed the negligent acts and was in the zone of danger. She was harmed by the injury to her child and the mother suffered actual physical damages. Therefore, the mother argues that the reason for the action of emotional upset while attending a dead infant must be permitted since there is independent physical injury.

The opponent’s opposes the motion contending that the emotional pain and suffering of the mother is too remote to be compensable under the policy considerations expressed by the state courts. As to modifying the complaint, the opponents contend on claiming that there has been no identification of the procedure which was performed without the mother’s consent and there is no affidavit from the mother herself attesting to any lack of informed consent.

The emergent issue which warrants re-examination if a mother can recover for emotional injuries resulting from the death of her fetus. Directing aside prior holdings excluding recovery in such actions, the court held that common-sense justice mandated that such child is capable of being delivered and remaining alive separate from its mother was entitled to relief. The court then sent a clear signal regarding derivative actions by stating that no one seems to claim that the mother, in her own name and for herself, could get damages for the injuries to her infant. Thereafter, while reaffirming that there could be no recovery for mental distress and emotional disturbance resulting from defectively born children, the court permitted certain restricted parental recovery for injuries resulting from defectively born children.

Based on the record, in upholding the parents’ rights to recovery on their own behalf, the court explained that the fact that the complainant’s wrongful life claims was brought on behalf of their infants do not state legally cognizable reasons for action. In as much as they fail to assert ascertainable damages, there is no way that it affects the validity of the complainants’ claims for financial loss. The complainant in Long Island states the reasons for the action on breach of duty flowing from the opponents to themselves, resulting damage to the complainant’s for which compensation may be readily fixed. Further, it is not to say that the complainant may recover for psychic or emotional harm alleged to have occurred as a consequence of the birth injury of their infants. The recovery of damages for such injuries must necessarily be limited.

An additional factor influencing against the application of the zone of danger rule lies in the element of the rule which requires that the injury observed be to an immediate family member. To hold that the zone of danger rule applies would be to determine that a fetus is a member of the immediate family. As far as tort law is concerned, a fetus has no life until birth. It follows that someone who was never alive could not be considered a member of the family and could not be within the zone of danger.

The mother’s allegations must be assumed to be true. In addition, a request to revise the pleadings must be approached with liberality especially since there is no prejudice to the opponents. However, despite of the principles and the mother’s contentions upon the motion, the court do not read the complaint as setting forth a separate reason for the action by the mother for independent physical injuries.

Consequently, the court decided that re-argument should be granted and that upon re-argument, the motion is denied. However, the mother individually is granted to serve a revised complaint which deletes the reason for action relating to the dead fetus and clearly states that it is her claim. The reason for the action of emotional upset in attending a dead fetus including the lack of informed consent provided that there is an independent physical injury to her.

Major innovations in the field of medical science are because of the developing modern technologies that certainly help us in curing diseases.

However, it is sometimes the reason for the immediate loss of life. If you believe that you were a victim of malpractice, seek assistance from our NYC Medical Malpractice Lawyers. If such malpractice results to serious injuries, you can call our NYC Injury Attorneys. However, if your child suffered injury at birth, ask our NYC Birth Injury Lawyers from Stephen Bilkis & Associates to protect your child’s rights.

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