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On July 1, 1997, an expectant mother gave birth via premature delivery


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.

Losing an infant is difficult for an expectant mother, especially when it is caused by birth injury accident or due to the medical malpractice of the hospital. You need a Kings Injury Attorney to represent you. You need the assistance of a Kings Birth Injury Attorney to help you see through your case and to compensate whatever loss you may have suffered. At Stephen Bilkis and Associates, our Kings Medical Malpractice Attorneys are ready to help you on whatever damages you can recover from injuries you have sustained.

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