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.

On 17 August 2003, five days after the daughter’s suicide attempt, the woman drove herself to the Emergency Room (ER) at the New York University Hospital. Upon learning where she had gone, the woman’s husband went there to meet her. In the ER, the woman confessed that she had had an extramarital affair about 2 months earlier and that she was afraid she had contracted a sexually transmitted disease. After returning home from the hospital that night, the woman and her husband had an argument concerning the affair and discussed divorce. Ultimately, they decided to hold off on making any decisions until their daughters left for college later that month.

On 19 August 2003, at approximately 5:00 A.M., the husband found the woman lying on the bed in a spare bedroom. She was unresponsive and he called 911. The woman was brought into the ER at South Nassau Communities Hospital (SNCH) with a suspected drug overdose. Doctor-two, an attending on call, became her attending internist for admission to SNCH. His admitting diagnosis was “Xanax Overdose.” She was admitted to the intensive care unit with impression of drug overdose and respiratory failure. As a result, she was intubated upon her arrival. Thereafter, the woman’s husband contacted his daughter’s psychologist, doctor-one, to speak with her concerning his relationship with his wife, thus, an appointment was made to see him on the following day.

The next morning, the woman was extubated. A registered nurse testified that it was difficult to provide emotional support because she was not talking much that day.

On 20 August, and again on 21 August, the husband met with doctor-one and sought counseling concerning his marriage and his wife’s infidelity.

On 21 August, doctor-two obtained a psychiatric consultation for the woman from doctor-three, who, like doctor-two, practiced at SNCH. Doctor-three, upon examining the woman at her bedside noted that she was alert and oriented and was not suicidal or delusional; the woman identified her betrayal of her husband by having an affair, her daughter’s problem and the recent loss of family friends as stressors; she expressed concern regarding her medical condition; she expressed a willingness to work with her husband in therapy and indicated she wanted her children to do well. Doctor-three’s diagnosis was that the woman was suffering from a major depressive disorder and that she was status post an overdose attempt. As a result, doctor-three started the woman on Lexapro and Buspar. Lexapro is a medication indicated for the treatment of major depressive disorders and Buspar is a medication indicated for the treatment of anxiety. Doctor-three’s treatment plan for the woman also included seeing the husband. During a 30 to 45 minute conversation with the husband, doctor-three asked him questions regarding collateral history of signs and symptoms, the presence of stressors, the patient’s support system and motivation for follow up care, as well as his involvement in his wife’s care. Doctor-three claims that upon speaking to the husband, he learned that the woman had been seen by a doctor in the city regarding the affair that contributed to the marital stress; that the woman had written a letter to her family expressing remorse for her actions; that the husband had asked a therapist he was seeing to become involved in her care, the co-defendant doctor-one.

On 22 August 2003, the woman was again seen by doctor-three. At that time, the woman did not demonstrate any untoward side effects to the psychiatric medications previously begun. Further discussions with the woman and the husband with regard to the woman’s attending outpatient psychiatric care took place. The plan was for the woman to be seen on an outpatient basis at SNCH psychiatric facility located in Baldwin, New York which the couple agreed to. The woman’s admission continued to 23 August 2003 where, acting on doctor-three’s recommendation, doctor-two discharged the woman.

On 24 August 2003, the couple met with doctor-one for an initial interview whereupon doctor-one explained the marital counseling process and asked for copies of the woman’s discharge papers from SNCH in order to determine how to best proceed with the marital counseling. They both scheduled another appointment to see doctor-one on 25 August 2003 at 1:00 pm.

On 25 August 2003, at 9:00 A.M., the husband contacted doctor-one insisting on seeing her immediately. The husband arrived at her office at around 9:30 A.M. at which time he told her that contrary to her advice, he had continually harassed his wife about her infidelity the preceding night and that she was at home resting when he left her that morning. The husband testified that his wife had advised him that earlier that morning she had taken several Fiorcet tablets for a migraine headache. The active ingredients in Fiorcet are 50 milligrams Butalbital, 325 milligrams Acetaminophen and 40 milligrams Caffine. When the husband returned home that morning, he found his wife submerged in the bathtub; the bathroom door had been locked and was forced open; and his wife was still wearing her underwear, though submerged in the tub. The husband pulled her out of the tub and forced water out of her mouth and chest. He then called the police. The woman (wife) was taken back to SNCH where she was pronounced dead. A toxicology report revealed that she had 2.63 mg/L of Butalbital and 25.7 milligrams Acetaminophen in her Femoral Blood. The Medical Examiner never determined drug overdose to be the cause of death. In fact, no cause of death was ever stated by the medical examiner. The family, on religious grounds, refused to have an autopsy done.

Upon the police investigation into the woman’s death, an undated note was found which was written by the woman. She wrote that she had done something shameful in June and that she was running away. She also wrote that she was deserting her family. With respect to this note, the husband testified that his wife had personally handed him a note on the night before she overdosed on Xanax; that he read the note in his wife’s presence and without even finishing reading it, he put it in his pocket.

Subsequently, the husband instituted a psychiatric and medical malpractice action against SNCH, the internist (doctor-two), the psychiatrist (doctor-three), and the psychologist (doctor-one); as plaintiff and administrator. Plaintiff alleges that doctor-two departed from accepted medical practice in discharging the decedent from SNCH on 23 August 2003 because the discharge deprived the decedent of an opportunity to avoid suicide on 25 August 2003; that doctor-three and the hospital also negligently and carelessly departed from good and accepted standards of medical practice and procedures by, inter alia, negligently treating major depression and negligently discharging his wife prematurely from SNCH and failing to provide a complete and careful examination, the circumstances of the overdose and the surrounding circumstances of the underlying mental illness; that as a result of the allegations against doctor-three and SNCH, his wife suffered from unfettered progression of major depression leading to the commission of suicide by overdosing/overmedicating in a bathtub, drowning, and suffering a cardiopulmonary arrest; that doctor-one also negligently and carelessly departed from good and accepted standards of medicine and psychology in that, inter alia, she failed to recognize and appreciate the signs and symptoms of plaintiff’s condition and negligently discharged the plaintiffs’ decedent from a health care facility.
All defendants moved for a summary judgment dismissal of plaintiff’s complaint.

The Ruling:

On doctor-one’s motion:

Under the rules, a cause of action to recover damages for medical malpractice must be founded upon the existence of a physician-patient relationship. Here, there is no question that the defendant, doctor-one, was the decedent’s daughter’s and the plaintiff husband’s therapist. To the extent that doctor-one met with the decedent on 24 August 2003 for an initial interview where she explained the marital counseling process and asked for copies of her discharge papers in order to determine how to best proceed in the marital counseling, the Court finds that defendant has submitted ample proof in admissible form which establishes that no doctor-patient relationship was formed between the plaintiffs decedent and defendant doctor-one. There is no evidence that defendant doctor-one had ever agreed to undertake the decedent’s care or had treated or advised her. Although the decedent participated in her husband’s care and treatment with doctor-one, there is no evidence that treatment or care of the wife, alone, was contemplated.

Thus, after having carried the initial burden of entitlement to judgment as a matter of law, the burden now shifts to the plaintiff to raise a triable issue of fact. In the absence of any opposing papers presented by the plaintiff, summary judgment is granted to defendant doctor-one.
On doctor-two’s motion:

Under the law, the essential elements of medical malpractice are: a deviation or departure from accepted medical practice, and evidence that such departure was a proximate cause of injury. Thus, on a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. Once the defendant has made a prima facie showing, the burden shifts to the plaintiff to lay bare his or her proof and demonstrate the existence of a triable issue of fact. Here, inasmuch as defendant doctor-two’s expert’s affirmation addresses the facts as contained in the medical record and responds to plaintiff’s claims in the bill of particulars, the court finds that the expert affirmation is competent evidence that defendant doctor-two did not depart from good and accepted medical practice when he relied upon and deferred to the directions given to him by plaintiff’s psychiatrist, doctor-three, with respect to whether she was ready to be discharged from a psychiatric standpoint. Moreover, the medical function undertaken by defendant doctor-two was that of an internist and not plaintiff’s psychiatric care and, thus, doctor-two’s duty of care did not extend to the treatment rendered to plaintiff by her psychiatrist.

Thus, based upon defendant’s deposition testimony coupled with the expert’s affirmation, defendant doctor-two has demonstrated his prima facie entitlement to judgment as a matter of law thereby shifting the burden to the plaintiff to submit competent evidence showing a departure from accepted medical practice and a nexus between the alleged medical malpractice and plaintiffs injury.

Consequently, plaintiff submits three expert affirmations: one from a psychiatrist, one from an internist and one from a forensic pathologist. The negligence claimed against doctor-two as set forth in the psychiatric and internist expert affirmations are that he failed to communicate appropriate information to doctor-three, which contributed to an incomplete evaluation of the decedent and that doctor-two failed to keep the decedent in the hospital for further psychiatric treatment and evaluation because he should have known that she did not receive any meaningful psychiatric medications or therapy and counseling in the hospital. Nonetheless, the record is clear that doctor-three was well aware of the decedent’s medical concerns; doctor-three acknowledged at his deposition that he was advised by doctor-two of the decedent’s HIV testing, and considered it in connection with his clinical evaluation; and doctor-three took a full mental status examination of the patient including history, complaints, history of present illness, past psychiatric history, past medical history, family history, personal and social history, and mental status evaluation. Thus, the failure to communicate information that was already known by doctor-three could not possibly have affected his decision to clear the patient for discharge.

Moreover, the plaintiff’s claim that doctor-two should have kept the decedent in SNCH for further psychiatric treatment and evaluation despite doctor-three’s psychiatric clearance for discharge is insufficient to raise a triable issue of fact concerning proximate cause. Plaintiff’s expert fails to identify the content of doctor-three’s considered opinions that should have alerted doctor-two to their unreliability. Further, plaintiffs’ experts do not discuss what doctor-two could have hoped to have achieved after the consulting psychiatrist had already determined that the decedent was not in need of in-patient psychiatric treatment. While it is true that when medical experts offer conflicting opinions, a credibility question is presented requiring a jury’s resolution, it is equally true that where the opinions of the plaintiffs’ expert are based upon allegations of medical malpractice that are merely conclusory in nature and unsupported by competent evidence, such expert affirmations are insufficient to defeat defendant physician’s entitlement to summary judgment.

Furthermore, plaintiff’s expert pathologist fails to offer any evidence or foundation that the suicide note is the same note that the plaintiff husband received personally from his wife on 18 August 2003. The note alone fails to support the plaintiff’s assertion that the plaintiff’s decedent committed suicide. Even assuming arguendo the truth of plaintiff’s expert’s opinion that the decedent in fact committed suicide, there is no evidence that doctor-two departed from the standards of good and acceptable medical practice. Significantly, there is no allegation that doctor-two departed from those standards of care applicable to an internist. Doctor-two is not subject to liability for any alleged failure to exercise the degree of skill and care expected of a specialist in psychiatry.

Thus, defendant doctor-two’s motion for summary judgment is granted.

On doctor-three’s and SNCH’s motion:

It is a well-established principle of medical jurisprudence that no liability obtains for an erroneous professional medical judgment. This rule is applicable to psychiatry. Therefore, for liability to ensue, it must be shown that the decision to release a psychiatric patient was something less than a professional medical determination. Evidence of a difference of opinion among experts does not provide an adequate basis for a prima facie case of malpractice.
Here, the court finds that the findings on the toxicology report are consistent with the ingestion of 2 tablets of Fiorcet but in no event more than 4 tablets and that the amount was not sufficient to induce unconsciousness, nor is ingestion of pills in this amount consistent with an attempt to commit suicide by drug overdose; that the decedent’s death was most likely accidental, if not the product of an intentional act of a third party, which would be consistent with the findings of the Medical Examiner. The death certificate and Medical Examiner’s report is properly accepted as proof of causation.

Thus, in light of defendants’ showing of entitlement to judgment as a matter of law, the burden now shifts to plaintiff as the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring a trial.
Plaintiff then submits the opinions of two of the same experts as those offered in opposition to defendant doctor-two’s motion: namely, a forensic pathologist and a psychiatrist.
Here, doctor-three was aware of the patient’s gynecological concerns, discussed the patient’s infidelity with her and actually met with the marriage counselor, brought to the hospital by the plaintiff. As a rule, a mere difference of opinion among experts does not provide an adequate basis for a prima facie case of malpractice. Thus, the Court finds that plaintiff’s expert has failed to raise a question of fact as to whether doctor-three’s decision to discharge the decedent was something less than a professional medical determination. A physician’s duty is to provide the level of care acceptable in the professional community in which he practices. He is not required to achieve success in every case and cannot be held liable for mere errors of professional judgment; neither are psychiatrists required to be omniscient when making a diagnosis. Where a treatment decision is based upon a careful examination, an expert’s opinion that an alternative treatment should have been followed is insufficient to establish a prima facie case of malpractice. Prediction of the future course of a mental illness is a professional judgment of high responsibility and, in some instances, involves a measure of calculated risk. The mere fact that plaintiff’s expert would have opted for a different treatment represents at most a difference of opinion, which is not sufficient to sustain a prima facie case of malpractice. The affidavits of plaintiff’s experts are conclusory in nature and unsupported by competent evidence tending to establish the essential elements of medical malpractice.
Thus, plaintiff has failed to rebut defendants’ prima facie entitlement to summary judgment.
Moreover, plaintiff’s expert pathologist relies on the suicide note in forming his opinion that the decedent committed suicide but fails to offer any evidence or foundation that the note the decedent left behind and the police later discovered as part of their investigation, is not the same note that plaintiff husband received personally from his wife on August 18. The expert does not address plaintiff’s testimony and the Medical Examiner’s report that indicates it is the same note.

Thus, based solely on the single note, there is no evidence that the decedent committed suicide.

Furthermore, the cause of death has been found to be “Undetermined” by the Medical Examiner. The pathologist’s opinion was based on impermissible speculation that the August 19th overdose was a suicide attempt, which buttressed his conclusion that the August 25th incident was also a suicide attempt. The pathologist failed to address the defendants’ expert opinion and the finding of the Medical Examiner that the decedent had not overdosed or committed suicide and though he speculated homicide was unlikely, he did not establish the cause of death as a suicide, nor did he rule out accident or murder. Plaintiff failed to lay bare proof that the allegedly premature release of the decedent was the proximate cause of her death by suicide; there was no proof that the decedent committed suicide. The plaintiff’s expert opinions are conclusory in nature, unsupported by competent evidence and are, thus, insufficient to defeat defendants’ entitlement to summary judgment.
Thus, plaintiff has failed to submit competent evidence showing a departure from accepted medical practice and a nexus between the alleged medical malpractice and the plaintiff’s injury.

Hence, the motion by defendants, doctor-three and SCNH, for summary judgment is granted and the complaint is dismissed.
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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.

Defendant and third-party defendant moved for summary judgment dismissing the action, arguing that the infant was stillborn as a matter of law. Plaintiffs opposed the motion asserting that the infant was born alive. The court denied the motions on the ground that defendant’s and third-party defendant’s submissions did not establish that the infant was stillborn as a matter of law.

The Bronx Plaintiffs were directed to serve an amended complaint alleging that the infant was stillborn if they were intending to take that position at trial. The court ruled that the defendant would not be prejudiced by plaintiffs’ change in position since it was afforded an opportunity to conduct all discovery that had been necessitated by the change and that it would be improper to apply judicial estoppel to preclude plaintiffs from asserting that the infant was stillborn since plaintiff never obtained a judgment in a prior action by asserting that the infant was born alive.
When the matter was tried, plaintiffs maintained throughout the trial that the infant was stillborn and the jury agreed The jury found that defendant’s medical malpractice was the proximate cause of plaintiff’s emotional injuries and awarded her $1 million dollars for past pain and suffering. Although the jury found that the plaintiff was negligent in failing to seek further treatment after she was last seen at defendant’s hospital, they concluded that her negligence was not a proximate cause of her injuries Defendants claimed that the court erred in permitting plaintiffs to assert a position inconsistent with their position at all previous stages of the litigation.
The court upheld the decision of the jury. According to the court, while the doctrine of judicial estoppel, when properly applied, will preclude a party from asserting a position in an action that is contrary to or inconsistent with a position previously asserted by that party, there was basis not to apply the doctrine in this case.

Accordingly, plaintiff’s initial position that the infant was born alive was never accepted by the court. While plaintiffs took this position in their opposition to defendant’s motion for summary judgment, the motion was denied because defendant’s submissions did not establish as a matter of law that the infant was stillborn. There was never a finding that the infant was born alive.
The court opined that a jury verdict will not be set aside as against the weight of the evidence unless it could not have been reached on any fair interpretation of the evidence. In this case, the verdict was supported by legally sufficient evidence and was not against the weight of the evidence.
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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.

By order, the special term denied the motion asserting that the hospital had a cross claim against the doctors which was still viable. Based on records, the court’s decision was consistent with the hospital’s position that it was seeking remuneration against the three doctors, and that their status as parties under the cross claim was unaffected by the settlement between the complainant and the doctors under the provisions of the general obligations law. The relevant provision with this proceeding includes the effect of release of or covenant not to sue tortfeasors, the release of tortfeasor and the waiver of contribution.
The doctors moved for another proceeding concerning their motion to modify the lawsuit caption of the man. In support thereof, they asserted that since they settled their case with the man, they were not required to participate as opponents in the man’s action against the remaining tortfeasor. The hospital, in opposition to the motion of the doctors asserted that while the settlement eliminated its right to contribution from the doctors, it did not affect the hospital’s cause of action for common law remuneration from the doctors. The special term explained that since the man alleges in his complaint that the three physicians were employees of the hospital and were acting within the scope of their employment at the time they allegedly committed their acts of malpractice, liability of the hospital may well be vicarious in nature and based upon the theory of Respondeat superior at which the hospital is liable on the action of its employees.

In support to the motion of the doctors in modification the lawsuit caption and for another proceeding, the three physicians argued that the prior order of the justice which granted the hospital’s motion to examine them as opponents was void for lack of the court’s jurisdiction. They claimed that as the man settled and discontinued his action against them, they were no longer parties. The thrust of the doctors’ argument on appeal is that despite the allegation in the man’s complaint that they were employees of the hospital, the concession by the hospital that they were independent contractors renders it impossible for the hospital to be held vicariously liable for their acts and, therefore, there can be no common law remuneration.
Twenty-three days after the entry of the order denying the proceeding, the doctors served a notice to admit upon the hospital. The hospital admitted that all three were attending physicians and independent contractors, and not its employees.

The hospital further contends that it is clear that the man’s complaints of negligence and medical malpractice are, in reality, directed to the physicians and not to the hospital. Under the circumstances the hospital would be at most passively negligent and would have a common-law implied right of remuneration over and against the physicians. Specifically, the hospital contends in its brief that the complainant may be able to prove at trial that other employees of the hospital, like nurses and attendants, followed the negligent direction of the physicians. Under those circumstances, the hospital argues, it would be vicariously liable for the passive negligence of its nurses and attendants and it would have a right to remuneration since the hospital stands in the shoes of its employees against the doctors.

As correctly indicated by the hospital, no discovery of evidentiary facts has taken place. Therefore, since the action is still in the pleading stage, it is necessary to ascertain solely from the pleadings whether at the time a claim of indemnity against the physicians may exist in favor of the hospital. According to the man’s complaint all of the opponents undertook to and did provide hospital services to the wife with negligence and inappropriate nature and each of the three physicians was acting within the scope of his employment by the hospital.

With respect to the hospital’s admission obtained by the three physicians, the law is settled that the purpose of the notice to admit procedure is not to obtain information in lieu of other disclosure devices, but only to eliminate from the issues matters which will not really be in argument at the trial. Moreover, while the hospital did respond to the notice to admit, the information sought therein, whether the three Nassau physicians were independent contractors, was in fact a request for an admission to an ultimate or conclusory fact which can only be determined after a full and complete trial.

The appellate division submits that the elimination of the three physicians as opponents at the stage of the action is fraught with possible procedural complications. A finding, after a trial, that the hospital is vicariously liable for their negligence, without their being the opponents would not be binding upon them. Such an eventuality would defeat some of the essential purposes for the enactment of law and rules pertaining to interpleader, third-party practice, and the interposing of cross claims and counterclaims, namely to avoid multiplicity of proceedings, to nurture a speedy, less expensive administration of justice and to determine the ultimate rights of all parties in one trial.

In addition, deferring the consideration of any application dealing with the true relationship between the hospital and the three physicians at the time of the occurrence, at least until after pretrial depositions of all the litigants as parties to the action have been conducted, is in accordance with sound procedural practice and eminently fair to all.

Consequently, the appellate division finds that the appeal from an order of the Supreme Court was dismissed and no appeal lies from an order denying a motion for another proceeding. Furthermore, the order of the same court is affirmed. The hospital is awarded one bill of 50 costs and disbursements to cover both appeals.
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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.

During the pendency of the action, defendant moved for summary judgment dismissing the action, arguing, that the infant was stillborn as a matter of law. Plaintiffs opposed the motion asserting that the infant was born alive. The court denied the motions on the ground that defendant did not establish that the infant was stillborn as a matter of law.

In 2004, the Court of Appeals decided a case, which fundamentally changed the law in New York with regard to the claim for emotional distress of an expecting mother that did not obtained an independent physical injury from a stillbirth or miscarriage. The ruling of the Court of Appeals abrogated the rule of law set forth in New York. It held that medical malpractice in a miscarriage or stillbirth of a fetus is in violation 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 miscarriage or stillbirth, even in absence of an independent physical injury to the mother.

After the above-mentioned case was decided, plaintiffs served further responses to defendant’s demand for expert information indicating that they would call a psychiatrist at the time of trial to support plaintiff’s claim that she sustained emotional injuries as a result of defendant’s malpractice. Defendant correctly inferred from this that plaintiffs would now take the position that the infant was stillborn and promptly moved to preclude plaintiffs from taking this position at trial. Defendant argued that it would be fundamentally unfair to allow plaintiffs to assert that the infant was stillborn when they had asserted previously that the infant was born alive.

During the pendency of the motion, Plaintiff served an amended complaint alleging that the infant was stillborn and the further discovery was completed. The court denied defendant’s motion to preclude concluding that defendant would not be prejudiced by plaintiffs’ change in position since it was afforded an opportunity to conduct all discovery that had been necessitated by the change and that it would be improper to apply judicial estoppels to preclude plaintiffs from asserting that the infant was stillborn since plaintiff never obtained a judgment in a prior action by asserting that the infant was born alive.

When the matter was tried, plaintiffs maintained throughout the trial that the infant was stillborn and the jury agreed. The jury returned a verdict finding that defendant’s medical malpractice was the proximate cause of plaintiff’s emotional injuries and awarded her $1 million dollars for past pain and suffering. Although the jury found that plaintiff was negligent in failing to seek further treatment after she was last seen at defendant’s hospital, they concluded that her negligence was not a proximate cause of her injuries.

The issues in this case are: whether the plaintiff is barred by judicial estoppels from changing its previous position that the infant was alive and maintaining that the infant was stillborn; and, whether the defendant’s medical malpractice is the proximate cause of the plaintiffs’ emotional injuries and not her negligence for failing to seek further treatment.

The Court, in deciding the case insofar as to answer the issue on judicial estoppels cited a landmark rulings explaining that the primary objective behind judicial estoppels is to protect judicial integrity by avoiding the risk of inconsistent judicial determinations in two proceedings or at different stages of the same proceeding. There can be no threat of an inconsistent judicial determination unless a prior inconsistent position taken by a party gained judicial acceptance in some manner. Absent success in a prior proceeding, a party’s later inconsistent position introduces no risk of inconsistent court determinations, and thus poses little threat to judicial integrity.

Accordingly, most courts have applied judicial estoppels to preclude a party from assuming a position in a legal proceeding only where that party had secured a favorable judgment in a prior legal proceeding by asserting a contrary or inconsistent position which was endorsed by the court in some manner.

Based on the forgoing, the Court held that plaintiffs’ initial position that the infant was born alive was never accepted by the Court. While plaintiffs took this position in their opposition to defendant’s motion for summary judgment, the motion was denied because defendant’s submissions did not establish as a matter of law that the infant was stillborn. There was never a finding that the infant was born alive. Finally, plaintiffs changed their position to take advantage of the holding in Court of Appeals decision in 2004 which abolished long standing precedent in New York. The Court held that judicial estoppels is inappropriate when a party is merely changing its position in response to a change in the law.

In addition, the Court held that defendant’s claim that plaintiffs’ negligence in failing to seek further treatment was the proximate cause of the premature delivery and death of the infant was without merit. The Court held that the jury’s finding that plaintiff was negligent in failing to seek further treatment was not fatally inconsistent with its finding that her negligence was not a proximate cause of her damages. The issue of plaintiff’s negligence was not so inextricably interwoven with the issue of proximate cause so as to make it logically impossible to find negligence without also finding proximate cause.

Thus, for court to conclude that the jury verdict is unsupported by the evidence there must be “no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury”. A jury verdict will not be set aside as against the weight of the evidence unless it could not have been reached on any fair interpretation of the evidence.

In this case, the verdict was supported by legally sufficient evidence and was not against the weight of the evidence. This case presented a classic battle of the experts and it was for the jury to decide which of the experts was more credible. To find that the jury’s verdict was unsupported or against the weight of the evidence, this Court would have to find that plaintiffs’ experts were unworthy of belief, a finding that this court is not prepared to make. In view of the forgoing, the Court denied defendant’s motion to set aside the jury’s verdict in favor of the plaintiff and directing judgment in favor of the defendant.
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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.

The court contends that a hospital lien is a product of the lien law of New York §189 and is carefully described in circumstances prescribed by the statute. However, the lien law states that there are two elements that must be met before such a lien is even possible. First, there must be a causal relationship between the treatment that the person received and the accident that the person was admitted for. Secondly, the lien must be rendered within a week from the injury. Since neither of these elements are present in the current case, there is no showing that the lien can be enforced by the hospital. The Manhattan court determined that there was no valid reason to issue the hospital lien and the mother’s motion to discharge the lien is granted in all respects with no money due from her to the hospital.

In situations where there are specific legal grounds that must be met prior to any legal claims, it is important for each party involved to seek some sort of legal advice. In this case, the mother had a valid reason to want to determine how her infant died. She needed to know if the automobile accident played a significant part in the baby’s death. If this case were presented in the legal atmosphere of today, it is possible that a causal relationship would have been found.
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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.

The Westchester parents brought forth evidence from the ambulance personnel who transferred their child to the Albany hospital who stated that during transport, the baby woke up and cried. They also stated that the baby made grunting noises and was definitely alive at the time of the transport from one hospital to another. The Supreme Court agreed that the child was clearly alive since she did not die until two days after her birth. They also determined that the mother was entitled to almost all of the punitive damages that she sought to recover in the death of her child. Further, the mother sustained internal injury because of the doctor’s actions that may prevent her from ever being able to carry another child to term. The mother contends that she should receive compensation for these medically cognizable injuries that were the result of the doctor’s negligence. The court determined that the woman did not receive any injury beyond that which would normally be present at a normal birth and decided that the emotional distress that she claims to suffer because of these actions is not compensable with monetary compensation. The court allowed the case to go to trial on the other counts that the woman made with the exception of any counts that claim damages to the husband.
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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.

There is no doubt that this new father suffered greatly watching his baby boy born, only to realize that the child was strangling to death. The father is not to be blamed, he simply was not trained to handle the situation. The fact that the doctor had administered labor inducing drugs and then left without ensuring that the mother would be monitored is against current New York law which states that once the doctor from Queens or Staten Island has administered a labor inducing drug, he or she is required to monitor the patient’s progress constantly until the child is born. Constantly does not count as in the hall, locker room, or cafeteria. It requires that the doctor monitor the patient. In this case, the doctor failed to monitor the patient and she went into active labor as a result of the inducing drugs.

The argument is that if the trained staff had been present at the time that the child was born, the umbilical cord could have been removed from his neck before he incurred any injury. The infant was born alive and would have remained alive. This medical malpractice action is an example to every one of the need for proper legal counsel in handling these types of circumstances.
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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.

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.
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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.

The accused parties contend that the complainant is in effect claiming only those indirect emotional injuries, as evidenced by her response in the bill of particulars to a demand for the delivery of stillborn child after enduring all the pains and discomforts of full term child bearing and delivery as well as severe emotional trauma including depressive reaction.

It is recognized by the accused parties that there are situations where a cause of action may be stated for emotional harm resulting directly to a complainant from the negligence of another. On the other hand, the accused parties argue that no cause of action is stated when emotional harm results indirectly through the reaction of the complainant to injury negligently caused to another person.

The couple alleges that due to the negligence of the accused parties or because of actions taken by them without the wife’s informed consent, the wife was caused to deliver a stillborn infant. No physical injuries are claimed. Rather, the wife seeks to recover solely for mental or emotional injuries and her husband seeks to recover for the loss of his wife’s services. The Special Term denied the accused parties’ motions for summary judgment. It is well established that even assuming the death of the fetus in the uterus was caused by the accused parties, the wife may not recover for emotional and psychic harm as a result of the stillborn birth because it is a wrongful act with the absence of independent physical injuries.

It is not claimed that the alleged medical malpractice which resulted in the physical injuries alleged in the amended bill of particulars in any way caused the stillbirth. With the absence of independent physical injuries, the wife may not recover for emotional and psychic harm as a result of the stillborn birth. In the instant case, the episiotomy was merely another aspect of the childbirth procedure itself, but was not a cause of the stillbirth so as to warrant recovery.
The accused parties argue that the complainant may not recover solely for emotional injuries caused by a stillbirth, and also may not recover for merely another aspect of the childbirth procedure itself when there is no real injury alleged. It is the position of the accused that every layman knows that the act of birth is routinely painful, and that the wife did not suffer any independent physical injuries. The complainants attempt to bolster the position by maintaining that a review of the hospital records will show that the wife was under general anesthesia for the delivery, and, therefore, cannot claim any independent physical injuries.

Under the circumstances of the case, when it is alleged that the wife independently suffered and endured excruciating pain and unnecessary injury, apart from the routine pains of childbirth, due to the negligence of the accused parties in failing to properly anticipate a footling breech delivery, in not performing a Caesarean section, and in failing to provide competent physicians to deal with the emergency at the time of birth, the wife was not merely a bystander but was as much a victim of the accused parties’ alleged medical malpractice as the stillborn fetus. It is alleged that the medical malpractice of the accused parties by delaying and prolonging delivery resulted in injuries to the wife as well as the stillbirth of her child.
For these reasons alone, the Court finds that there are issues capable of trial and cognizable under New York law which preclude summary disposition. If in fact the couple are able to prove that the wife suffered independent physical injuries as a result of the accused parties’ medical malpractice, then she would also be entitled to recover for any alleged mental injuries she sustained, including any emotional injuries attending the stillbirth, allegedly caused by the same medical malpractice, as a concomitant to the actual physical injuries she had suffered during the prolonged delivery.

The second cause of action is for the alleged lack of informed consent of the stillborn’s mother, and should not be summarily dismissed. Of course, it is well settled that an injured child has a right to an independent cause of action against a physician for in utero injuries stemming from the physician’s failure to obtain an informed consent, only upon birth. Since we are dealing with a stillbirth, the second cause of action relates only to the stillbirth’s mother. The third cause of action by the husband for the alleged loss of services of his wife also should not be dismissed.

The Court found that the mother contemporaneously perceived the tragic birth. In the modern view, actual observance of the accident is not required if there is otherwise an experiential perception of it, as distinguished from a learning of it from others after its occurrence. The Court applied the temporal proximity rule to the facts in a way which is especially appropriate to the facts.

Indeed, the Court can imagine no more integral an experience than that of a mother giving birth to a child through a protracted and difficult labor and delivery. She perceived that something was wrong, wrong enough to cause her to fear for her child’s life. In short, the complainant had an experiential perception of the accident.

For all the above reasons, the Court find that the mother, even with the absence independent physical injuries, has satisfied the criteria and her claims are cognizable under the New York zone of danger rule. Accordingly, if the claims are substantiated by the evidence upon trial, the mother would be entitled to recover for her asserted emotional distress and mental injuries.
The issues capable of trial of fact that have been raised should not be summarily dismissed. The motion by the accused for summary judgment is denied.
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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.

The trial court denied the motion to dismiss filed by the obstetrician-gynecologist and ordered the payment of damages to the parents.

The only questions in this appeal are: whether or not the trial court erred when it denied the obstetrician-gynecologist’s motion to dismiss; and whether or not the couple is entitled to compensatory damages for the pain and suffering of their child.

The Court held that under the law, in order for the parents to recover damages for their own personal emotional harm, there must be a showing that the doctor had a duty to them that he failed or refused to do and that as a direct result of the doctor’s failure or refusal to fulfill that statutory duty, the parents themselves were directly injured.

In this personal injury suit, the doctor may or may not have treated the wife or advised her according to the standards of his profession. The couple may have sustained injury but the personal injury they are claiming damages for is for the suffering of their child. This is at best indirect harm. Only a very small part of the indirect personal harm they may have suffered can be attributed to the alleged negligence of the doctor here.

The Court noted that every mother who bears a child stands to be hurt if their child died but this is a natural risk of life and child bearing. The law establishes liability only when a person is directly or intentionally harmed by the acts of others. Here, the child’s suffering may be compensable but the indirect suffering of the parents stemming from the suffering and death of the child cannot be compensable.

The Court also observed that while the parents do have a statutory right to abort their fetus had they known that their child would inevitably suffer and die due to Tay-Sachs, the compensatory damages they are asking for cannot be determined by the court. They are, in effect, asking the court to put a price on the immeasurable and intangible benefits of parenthood that were deprived them because of the death of their child. The parents here contend that their child should not have been born had the doctor done his job. The Court is at a loss to measure the grief of parents who give birth to a defective child. It is impossible for the court to assign a pecuniary value in damages for the anguish to the parents of a child who was born with a fatal disease. Damages which are uncertain and speculative cannot be a basis for recovery.

The Court saw a case from New York City and Westchester resolved to dismiss that part of the complaint of the parents for their own emotional injury but sustained that part of the complaint for the child’s own suffering.
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