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Plaintiffs, the infant’s natural parents, instituted the action


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.

Stephen Bilkis & Associates with its New York Medical Malpractice Lawyers has its office conveniently situated throughout the New York Metropolitan area including Corona, NY. Losing a loved one need not be aggravated by losing your rights.

Be informed that in addition, our New York Medical Malpractice from Stephen Bilkis & Associates can recommend New York Birth Injury Accident Lawyer to ensure your rights are fully protected.

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