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Can Medical Malpractice Action Be Filed for Stillborn Child?


Defendant-doctor and his professional corporation (defendant-one) rendered obstetric care to plaintiff-mother during her pregnancy with and birth of her baby. During the course of her pregnancy, she had four ultrasound examinations for which defendant-two rendered ultrasound reports. A New York Injury Lawyer said that based upon the reports and also the defendant-doctor’s examinations of the mother, it was determined that plaintiff-mother was carrying a large fetus for its gestational age. Defendant-doctor noted that plaintiff-mother should be watched for cephalopelvic disproportion.

On 17 January 1990, plaintiff-mother was admitted to defendant-doctor’s hospital for induction of labor by use of the medication Pitocin. Upon her admission, she was examined by an employee of defendant-doctor’s hospital, who determined that the mother’s pelvis was adequate to deliver the baby, and who administered the Pitocin, as ordered by defendant-doctor.

On 17 January 1990 at 5:00 pm, the mother began to deliver her baby. After emergence of his head, the head retracted back into the uterus, indicating that his shoulders were stuck. At this point, there was a strong fetal heartbeat, and pulsating in the umbilical cord. From 5:05 to 5:24 pm, eight physicians attempted to deliver the baby. Upon his full expulsion, the baby was no longer viable. At no time did he breathe on his own, outside his mother. Upon autopsy, the baby weighed 12 pounds, 12 ounces.

The complaint states three theories of recovery: first, on behalf of the baby for wrongful death and personal injuries (for the birth injury or birth injury accident); second, on behalf of the mother for mental distress, and; third, on behalf of both parents for mental distress based upon the theory of “zone of danger”.

On the first issue, plaintiffs contend that since the baby was alive during the birth process, he was not stillborn, and is entitled to maintain a separate cause of action for wrongful death. Defendants maintain that the child was stillborn, based upon the definition of fetal death in Public Health Law: “Death prior to the complete expulsion or extraction from its mother.”

There is no reported case which defines stillborn, fetal death, or live birth for the purpose of maintaining a wrongful death action. The Court of Appeals has addressed the issue in the context of homicide with three possible definitions of live birth. Under the first theory, live birth is birth after the child has reached that state of development where it is capable of living an independent life as a viable being. A baby alive during the birth process is a person. On the second theory, a separate and independent existence from the mother after the child has been completely expelled from the mother’s body is required. On the third theory, it adds the requirement of independent circulation or respiration.

Whether the second or third theory is the appropriate definition of live birth, it is clear that the baby was not born alive. There is no evidence that the child had any independent existence, independent circulation or independent respiration following full expulsion from the mother at 5:24 pm. While there may be evidence of life of the fetus during childbirth, only evidence of life after full expulsion will confer person status upon the fetus enabling the maintenance of a wrongful death cause of action.

Under these facts, plaintiffs cannot maintain a wrongful death cause of action. A Westchester County Perosnal Injury Lawyer said there is no cause of action on behalf of a baby who is stillborn.

On the second issue, a cause of action for emotional damages must be predicated upon a breach of duty owed to the mother separate from the duty owed to the child, which breach proximately causes a physical injury. A plaintiff mother cannot recover for injuries which are caused by the breach of duty owed to the fetus.

When the alleged medical malpractice occurs during the delivery of the child, the physical injury to the mother must be separate from that which occurs in any normal childbirth, and must flow directly from the claimed malpractice. Plaintiffs claim that the defendants’ failure to diagnose macrosomia and the concurrent shoulder dystocia caused a variety of physical injuries including rash and edema, loss of blood due to a particularly large episiotomy, severe pain and bruising occasioned by the attempts to dislodge the baby’s shoulders from the mother’s pelvis, and plaintiff’s own fear of death.

There is no dispute that the rash and edema preceded the inducement of labor, and that plaintiff also suffered from a rash and edema in her first pregnancy. These are not injuries flowing from any breach of duty by defendants. A Suffolk Personal Injury Lawyer said the allegations of loss of blood can be considered a physical injury to the mother flowing from the defendants’ malpractice if shown to be beyond normal childbirth. However, the blood loss in this case was the result of a large medial episiotomy, which has been held to be part of the normal childbirth process.

On the other hand, during the twenty minutes of the attempts to extract the child, dislodge his shoulders and break his clavicle to facilitate his removal, plaintiff was subjected to bruising and the fear of danger to her own life. According to the affidavit of her expert witness, these are not a part of normal childbirth. The expert further states that macrosomia, from which plaintiff suffered, can be life-threatening to the mother. This fear of death can be a separate physical injury to plaintiff flowing from the breach of duty owed to her by defendants.

Therefore, separate physical injuries to the mother as a result of the breach of duty owed to her by defendants, and her cause of action for emotional as well as physical damages is permissible.

On the third issue, plaintiffs raise a “zone of danger” theory of recovery for emotional damages. While such theory has been upheld in other cases involving the death of a fetus, it was held inapplicable to an action by a mother against her obstetrician for damages flowing from the death of the child delivered, holding that the legal fiction of a “duty” created in zone of danger cases is unnecessary and inappropriate when a duty was already owed by defendants to the mother. Any fear of death or bodily injury to the mother can be an element of the mother’s action for physical and emotional injuries, and need not be raised as a “zone of danger” cause of action.

The plaintiff-father, however, does not meet the tests for a “zone of danger” claim. He was not placed in any fear for his own life. Furthermore, he did not suffer any physical injury.

Meanwhile, defendant-one and defendant-two also claim summary judgment on the basis of a lack of any proximate cause of plaintiff’s injuries flowing from any alleged negligence by them. They base this claim on the argument that even if they breached some duty to the plaintiff with respect to properly estimating the size of the fetus, testimony of defendant-doctor shows that he did not rely on any information provided by them in formulating his own estimation of the size of the fetus.

While defendant-doctor may have so testified at his examination before trial, his actions in seeking the ultrasound evaluations from defendant-two and from relying on the assistance of residents and other personnel from defendant-one’s belies his testimony. His actions and the reasonable inferences to be drawn from them, create a factual issue as to proximate cause. Summary judgment cannot be sustained on this ground.

Defendant-one and defendant-two argue no breach of any duty as a matter of law. Defendant-two states that fetal weight was not requested by defendant-doctor so their failure to report fetal weight could not be a breach of a duty. However, the affidavit of plaintiff’s expert asserts otherwise. This creates a sufficient factual issue to deny summary judgment.

Defendant-one states that all of its acts were under the direction of defendant-doctor. While the hospital need not intervene in the relationship between the patient and her private physicians, the hospital owes an independent duty to the plaintiff to perform without negligence. Plaintiff’s expert raises deviations in the performance of the employees of defendant-one both prior to and during the delivery process. While defendant-one may ultimately be able to show at trial that each act was under the strict orders of defendant-doctor and, thus, avoid liability, there is no indication that this is the case as a matter of law.

Legal matters can be a lot for anyone to handle especially when the person involved has no legal background. If you wish to be enlightened on some legal matters like the aforementioned case, let us help you. Get in touch with Stephen Bilkis & Associates. Our New York City Medical Malpractice Attorneys or our New York City Birth Injury Attorneys, among others, are at your service.

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