A Bronx Birth Injury Lawyer said that, plaintiff, on her and her deceased daughter’s behalf, sues defendants for medical malpractice and the daughter’s wrongful death. The remaining defendants, defendant and Lawrence Hospital Center, separately move for summary judgment dismissing plaintiff mother’s claims for emotional distress and lost society, comfort, and affection. Defendant also seeks dismissal of the mother’s claims for lost support, services, and protection.
A Bronx Injury Lawyer said that, in opposition to defendants’ motions, the mother maintains that her action is closer to the 2004 case decision, and the current record raises a factual issue whether her child was stillborn, since defendants do not show that the child took a breath or had a heartbeat. Defendants point out, however, that insofar as they failed to make that showing, it was unnecessary, because the mother pleaded a Sheppard-Mobley claim. Consequently, plaintiff mother now moves to amend her complaint and bills of particulars to clarify her alternative theories.
The difficult issue concerns the mother’s claim for emotional distress: whether it falls under the 2004 case decision where a mother may recover for emotional distress when her child is stillborn due to medical malpractice, or where a mother may not recover for emotional distress when her child is born alive and then dies due to malpractice. In the latter instance, the court must dismiss the mother’s claim for emotional distress, but may retain her claims for lost support, services, or protection, insofar as they are of pecuniary value, and other pecuniary loss from the child’s wrongful death.
For the reasons explained below, the court determines defendants’ motions for partial summary judgment and plaintiff’s subsequent motion to amend her pleadings as follows. The court grants plaintiff’s motion to amend her complaint and bill of particulars as specified, on the condition that the note of issue is vacated to provide defendants an opportunity to move again for partial summary judgment on her claim for emotional distress, unless defendants stipulate that the note of issue not be vacated. Therefore the court denies defendants’ current motions for partial summary judgment without prejudice, insofar as they seek dismissal of her claim for emotional distress.
Regarding the claims that remain unaffected by plaintiff’s proposed amendments, the court denies defendants’ current motions, with prejudice, insofar as they seek dismissal of the mother’s claims for lost support, services, or protection that are of pecuniary value or other pecuniary loss from the child’s wrongful death. The court grants defendants’ current motions insofar as they seek dismissal of the mother’s claims for loss of the child’s services during the child’s life and for loss of the child’s society, comfort, and affection, whether during the child’s life or due to the child’s wrongful accident death.
If plaintiff ultimately prevails on her claim that her child was stillborn due to medical malpractice and never born alive, then the expectant mother may recover for her resulting emotional distress, but may not recover on behalf of the unborn child, who, having not been born alive, would have no estate. Currently, however, plaintiff still maintains her alternative theory of relief: that her child was born alive and then died due to malpractice. If plaintiff instead prevails on this claim, then she may not recover for her resulting emotional distress, but may recover on behalf of her deceased child’s estate for any pecuniary losses resulting from her child’s death.
Pecuniary losses may include medical and funeral expenses and loss of future voluntary support and assistance that the child would have provided to her mother, even of only a nominal value. The child’s immediate death does not totally extinguish the claims for lost services or pecuniary loss, as long as the birth injuries are not speculative.
To Be Cont…
If your child died due to the doctor’s medical malpractice, seek the assistance of a Bronx Wrongful Death Attorney and Bronx Brain Injury Attorney at Stephen Bilkis and Associates.