A woman during the course of her pregnancy informed her two doctors that there was a blood incompatibility between her and her husband. Because of this incompatibility, their first child developed a condition known as thrombocytopenia at or following his birth. The woman was afraid that the baby she was carrying will develop the same disease as the first child, so she informed her doctors so take preparations can be made. A New York Injury Lawyer said that having been forewarned, the doctors still failed to take proper pre-birth precautions with regard to the second child. She is alleging that the child died because of thrombocytopenia or respiratory distress syndrome or hylem membrane disease caused by the negligence of the defendants.
She is filing an action for the medical malpractice, negligence, breach of contract and fraud arising from the care and treatment by the defendants during the course of her pregnancy. The first cause of action is based on the wrongful death of the child due to the defendants’ medical malpractice.
The second cause of action seeks recovery for the emotional and psychological pain and suffering and mental and physical injury she incurred. The third cause of action seeks also recovery based on the same grounds as the second with respect to the husband. The fourth cause of action seeks damages arising from the breach of contract. The fifth cause of action seeks recovery for the medical and surgical expenses, also for emotional, psychological and physical pain and suffering based on the gross negligence of the defendants in failing to take proper precaution even after being informed that the second child would likely develop the same disease as the first child. The final cause of action is based on the fraudulent representations of the defendants, that they were familiar with the records of the plaintiff’s concerning the birth of her first child and that they were prepared to handle any problems resulting to the blood incompatibility of the her and her husband, particularly the thrombocytopenia, which would likely to develop in her second child also.
The defendants move to dismiss on the grounds that the second, third and fourth causes of action for failed to state a claim upon which relief may be granted and moved for summary judgment dismissing the fifth and sixth cause of action. A Brooklyn Personal Injury Lawyer said that the Special Term dismissed the second, third and fourth causes of action, granted summary judgment in favor of the defendants on the six cause of action and a portion of the fifth cause of action, seeking recovery for emotional, psychological and physical pain and suffering.
The court ruled in jurisprudence, that recovery for emotional harm suffered by one person as a result of injuries sustained by another should be eliminated. The court’s basis for this is the “bystander rule.” This rule prevents the recovery for emotional harm resulting from physical injuries sustained by another.
However, in this case, there is a breach of duty to the mother as well as to the child. The bystander rule is not applicable because it involves a breach of duty only to the victim. The mother was more than a mere bystander, having a unique physiological relationship with the baby.
In order to recover for emotional harm plaintiff must show in addition to a breach of duty owed to her, that she was the person directly injured by that breach. A Long Island Personal Injury Lawyer said the emotional harm and mental suffering is caused by the loss of the child, and not directly arose from the defendants’ breach of their duty.
The mother does not seek to recover damages from the psychic and emotional shock she sustained from witnessing injuries to her child resulting from the doctor’s breach of duty owed to the child, but she claims damages based on the doctor’s breach of duty owed to her and on this she may recover. The defendants’ were informed of the blood incompatibility of the plaintiff and that the first child developed thrombocytopenia still failed to take the proper measures in caring for the mother during her pregnancy and prevent the development of the disease which caused the death of the newborn child.
The plaintiffs desired to have a second child. If the defendant only fulfilled their duties owed to the plaintiff, they would have had a healthy child who survived the blood condition, as had her firstborn child. After warning them of the blood incompatibility, they should have taken the proper precaution and measures to ensure the baby’s health and safety. Because of the defendants’ medical malpractice, the baby developed thrombocytopenia, which caused his death. Because of this breach of duty, the parents should be entitled to damages.
One cannot imagine the feeling of parents when they lose their child. Even more if the death was a result of another’s negligence. Stephen Bilkis and Associates can recommend NY Medical malpractice lawyers that can help you fight for your right and see to it that this will not happen to other parents as well. New York Birth Injury lawyers can give you advice on what do to in situations like these, NY Birth injury accident lawyers will make sure that damages will be recovered for those victims of other people’s negligence.