Articles Posted in Fatal Birth Injury

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The Facts:

Sometime in 1982, a woman (herein the woman, wife or decedent, a 51 year old married woman at the time of her death) gave birthto triplet daughters. After giving birth, she experienced postpartum depression and was, for a brief period of time, hospitalized in the psychiatric ward of the hospital where she gave birth. Thereafter, following the 11 September 2001 terrorist attacks, the woman suffered from severe anxiety. A non-party physician prescribed Xanax.

On or about 12 August 2003, the woman’s daughter attempted suicide by taking pills after her friends’ drowning deaths. The woman’s husband (herein plaintiff administrator) testified at his deposition that his wife was also depressed as a result of the children’s death and their daughter’s suicide attempt. On 15 August 2003, their daughter sought psychological care with doctor-one and was accompanied by them, the parents, to the appointment.

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Plaintiffs, the infant’s natural parents, instituted the action which alleged a cause of action for the infant’s wrongful death on the ground that her premature delivery and death were due to the medical malpractice of the defendant. Plaintiffs alleged that the infant expired at “the age of one hour.” Plaintiffs asserted a claim for emotional distress and a claim for loss of services.

It is well-settled rule that a wrongful death action may be brought on behalf of an infant who is born alive but dies shortly after birth. The law in New York states that an expecting mother could not recover for emotional injuries when medical malpractice caused a stillbirth or miscarriage unless she suffered an independent physical injury that was both distinct from that suffered by the fetus and not a normal incident of childbirth. Although plaintiff did not suffer such injury, she alleged a claim for emotional injuries nonetheless.

Subsequently, the Brooklyn court decided another case ruling that medical malpractice resulting in a miscarriage or stillbirth of a fetus is violative of the duty of care owed to an expectant mother and entitles the expectant mother to recover damages for the emotional distress caused by the birth injury, even in absence of an independent physical injury to the mother.

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A man commenced a wrongful death action against a hospital and three physicians. The incident happened when the wife of the man was presented to the hospital to give birth to their daughter. The mother died the next day after the delivery from an infection allegedly not previously diagnosed or treated. In the instant action, the man sought damages in the sum of $500,000 for his wife’s wrongful death and $50,000 for conscious pain and suffering.

The complaint alleges that the physicians undertook and did provide hospital services to the mother with negligence and inappropriate nature constituting acts of medical malpractice and that each of the three doctors was acting within the scope of his employment by the hospital. Thereafter the three doctors settled the wrongful death action against them for $115,000. The settlement was approved by order of the Supreme Court. Two days later, a provision in discontinuing the action as to the doctors was executed by them and the attorneys for the complainant.

Afterwards, the NYC hospital filed a motion for an order requiring the doctors to appear for an examination before trial and it was granted. The order of special term directed the doctors to appear for examination before trial at the conclusion of examinations of the hospital and the complainant man. However, despite the order, the three doctors moved for an order to modify the caption of the man’s action so as to delete their names as party opponents. The doctors contended to the stipulation of discontinuance that they were no longer opponents.

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On July 1, 1997, an expectant mother gave birth via premature delivery at the Wyckoff Heights Medical Center. The infant died upon delivery. Plaintiffs, the infant’s natural parents, claimed that the infant’s wrongful death was caused by the premature delivery of the expectant mother and due to the medical malpractice of defendant Wyckoff. Plaintiffs then commenced an action to recover damages for medical malpractice against the defendant. Plaintiffs alleged that the infant expired at “the age of one hour.” Plaintiff the infant’s mother asserted a claim for emotional distress.

A witness said that it is a well settled law in this state that a wrongful death action may not be brought on behalf of a stillborn fetus. A wrongful death action may, however, be brought on behalf of an infant who is born alive but dies shortly after birth injury. A parent cannot, however, recover for his or her own emotional injuries in a wrongful death action.

A Lawyer said that when the action was commenced, it was the law in New York that an expecting mother could not recover for emotional injuries when medical malpractice caused a stillbirth or miscarriage unless she suffered an independent physical injury that was both distinct from that suffered by the fetus and not a normal incident of childbirth.

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Issues that occur when a woman is pregnant are now known to cause many problems with the fetus that she is carrying. A pregnant woman has more rights now to investigate this type of medical issue than she did in the 1960’s. In the 1960’s, medical records were not as easy for a person to obtain, even if they were their own records. Laws in recent years, have made obtaining your own medical records much easier. However, when there is a possible case of medical malpractice involved, it can still be difficult for a person to obtain the medical records that they need to prove their case.

In 1964, on July 22, a woman who was early in her pregnancy was hospitalized following a serious automobile accident. She was taken to the Lutheran Medical Center in New York for treatment. She remained in the hospital for two months while she was treated for her injuries. When she was discharged two months later and sent home, she had no reason to believe that there was anything wrong with the baby that she carried. However, on October 22, 1964, she was brought to Kings County Hospital where she was admitted in preterm labor. The infant died shortly after birth.

The mother was convinced that the cause of her infant’s death related to the traffic accident in July. However when she requested copies of the medical records from her hospital stay and treatment, the hospital would not provide her with the information that she needed. She discovered that in order to obtain the records, she would have to execute an assignment of lien against the hospital. The woman filed the lien. The Long Island hospital provided the documents, but requested that the court make the woman pay them more than $600.00 for their costs in obtaining the records. The hospital contends that they have the right to the payment because the assignment of the lien that was executed by the mother and her attorney served to form a binding contract between the woman and the hospital. The records that the hospital provided to the mother claim that the injuries that she sustained in the car accident and the treatment that she received in the hospital had no bearing on the loss of her child less than one month after being discharged from their care.

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The birth of a child should be one of the happiest days of anyone’s life, however, when that child is injured during their birth, it is heartbreaking. One such injury occurred on June 8, 1990 when a woman was taken to Kingston Hospital in New York. During her labor, the umbilical cord prolapsed and came out before the baby. This is a very dangerous situation because it cuts off oxygen to the infant and can cause the infant to be born with brain damage or even dead. In this case, the doctor put his arm up inside the mother to hold the baby off of the umbilical cord. The baby was in a breech position, coming out bottom first. The doctor ordered an immediate Cesarean section to get the baby out. However, it was 45 minutes before the surgery actually occurred. During that time, the doctor continued to try to hold the baby off of the prolapsed cord.

Several hours after the little baby girl was born, she was transferred to Albany Medical Center where she died on June 10, 1990. The parents of the baby filed a medical malpractice lawsuit against the doctor and the hospital where she was born. They claim that the doctor failed to perform proper prenatal tests to determine the position of the infant prior to delivery. If the proper tests had been performed, the doctor would have known that the baby was breech and would have ordered a Cesarean section before she went into natural labor to safely remove the baby. They also contend that the delay in obtaining an operating room contributed to the death of their child.

The doctor from Suffolk County who delivered the baby, maintains that the child was not alive when she was born and that the only life signs were artificially stimulated by the resuscitation devices used in the hospital. The original trial court dismissed the medical malpractice lawsuit. The parents then appealed that decision to the Supreme Court. The Supreme Court agreed that the trial court should not have dismissed the initial lawsuit as it regards the causes of action for the mother. They did not agree that the father had any cause for action since he was not in any danger during the incident and would not have suffered any physical injury during the operation or the birth of the child.

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On November 29, 1983, a pregnant woman and her husband arrived at Herkimer Memorial Hospital to deliver their new baby into the world. After being admitted to the hospital, the husband and wife were placed in a delivery room. The obstetrician arrived and ordered pain medication and labor induction medication to speed labor. All of the staff from the hospital, left the room at that time. Only the husband and wife were in the room when the baby began to come. The inexperienced husband tried to help his wife safely deliver their baby, but he did not know what needed to be done. Traumatized, he watched as his infant son was delivered into the world with the umbilical cord wrapped around his neck. The baby’s airway was cut off. He struggled to breathe without success. The father watched helplessly as his son suffered from lack of oxygen. When at last, the staff responded to his cries for help, the child was severely injured.

The little baby boy died of his birth injury the next day. The parents filed a medical malpractice suit to recover damages for wrongful death of their baby, by means of negligence and malpractice. The father also made a motion to the court for the court to grant him damages because of his severe mental and emotional distress from watching his baby son suffer.

The court contends that in order for a person to recover damages based on the death of another person, they must be able to show that there was an unreasonable risk of bodily injury or death to themselves. They must be able to show that they were within an area called the zone of danger. Since in this case, the father was not under the care of the doctors who were delivering the baby, and he was not injured in any fashion, he cannot show that there is any justification to the recovery of the damages. He admits that he was never in any danger and that he did not suffer any physical injuries during the entire process. The original trial court found that the father was not eligible to apply for damages under this statute. The Supreme Court agreed that the father had no right to receive monetary compensation for mental pain and anguish over watching his child suffer fatal injury in the delivery room. The third cause of action in regards to the defendant’s motion for summary judgment releasing them from liability in this action is granted and the father’s motion for monetary compensation must be dismissed.

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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.

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The couple alleges that while the wife was a patient at the hospital and under the care of various accused attending physicians during her pregnancy and delivery, the medical team was guilty of medical malpractice in failing to properly anticipate a footling breech delivery and provide competent physicians to deal with an emergency created at the time of birth. It is further alleged in the couple’s bill of particulars that the accused parties should have delivered the child by Caesarean section. Instead, it is contended that the accused parties chose a vaginal delivery which delayed the delivery and was extremely painful by reason of bilateral nuchal arms. As noted in the hospital records annexed to the motion papers, the delivery also involved the unsuccessful use of forceps, cervix stretching device and super pubic pressure.

Accordingly, the couple alleges carelessness, negligence and medical malpractice to each of the medical care team member as well as the hospital in the first cause of action. The complaint also claims that the mother and her infant were caused to suffer and sustain severe and serious physical, emotional and mental injuries. In the couple’s second cause of action, it is further alleged that the accused parties failed to obtain the informed consent of the mother regarding the consequences of the doctors’ actions during the delivery. The third cause of action by the complainant is for the alleged loss of services of his wife.

The accused parties submit that under the New York law, practiced in The Bronx as well as Brooklyn, there is no cause of action for emotional harm resulting indirectly through the reaction of a complainant to injury caused to another. Therefore, the complainant’s case, as stated on the woman’s emotional injuries resulting from the stillborn birth must be dismissed.

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A couple of Jewish and Eastern European descent sued an obstetrician-gynecologist for medical malpractice because their child was born with Tay-Sachs. Tay-Sachs is a hereditary disorder of the nervous system that is carried by those of Jewish Eastern European descent. It is the couple’s contention that the obstetrician-gynecologist while looking after and examining the wife during her pregnancy should have known that they were prime candidates to be carriers of the dread genetic disease. They insist that the obstetrician-gynecologist should have ordered them tested and their fetus screened for it. For had the couple known that they were carriers and that their baby had the gene responsible for the Tay-Sachs disease, they would have aborted the baby to prevent the extreme pain and suffering the child underwent. Their child was born on August 21, 1972 and died even before reaching age 2 on June 26, 1974.

The parents sued the obstetrician-gynecologist for damages for the personal injury consisting of emotional distress at their child’s suffering and her death; they also sued for the pain and anguish they felt at her untimely death. They also ask for compensation for their baby’s medical, hospital, nursing and funeral expenses.

The obstetrician-gynecologist moved for the dismissal of the case stating that the parents do not have any right to be compensated for the pain and suffering of their child.

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