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Medical Malpractice Case Turns on Issue of Whether Child was Stillborn


In New York, civil lawsuit policy is dictated through case law that determines what if any compensation that a person is entitled to. In the case of an infant who is stillborn due to medical malpractice, the standard of policy is determined by Broadnax v Gonzalez 2 N.Y. 3d 148, 777 N.Y. S 2d 416, 809 N.E. 2d 645 (2004). It states that a mother may recover damages for emotional distress due to a delivery of an infant who is stillborn, or deceased at birth due to medical malpractice.

However, if that same infant is delivered alive and then dies, then the mother is not eligible to recover damages based on emotional distress. She is able to recover for lost support, services, or protection. She may also recover other pecuniary loss from the medical malpractice death of her child. These guidelines are established in Sheppard-Mobley v King, 4 N.Y.3d 627, 797 N.Y.S. 2d 403, 830 N.E. 2d 301 (2005).

Therefore, for a mother whose child is deceased, in order to file a lawsuit, she must know if the child was actually stillborn, or if the child died after taking a breath. A New York Injury Lawyer said that a single breath is proof that the child was born alive. Air in the baby’s lungs is considered proof that the baby was born alive. However, in a case where these lines are blurred, it can become difficult for a parent to know how to proceed. The case must be filed within a set time period of 90 days from the birth of the child. It can be difficult for a mother who has just lost her child to make decisions of this sort in this time frame.

In one such case, the mother filed for both in order to buy time to investigate what actually occurred. When the discussion came to trial, she requested permission from the court to amend her complaint and bill of particulars to encompass the new information that she had discovered. A Queens Personal Injury Lawyer said that information was that the child was stillborn due to medical malpractice and had not taken a breath on its own outside of the womb. The court allowed her to amend her complaint and dismiss her claims for loss of the child’s services, society, comfort, and affection during its lifetime. The claim as it stood before the court encompassed the theory that the child had not drawn a breath unassisted outside of the womb.

The defendants now maintain that the child was born alive and show that the infant was provided with an Apgar score of one at ten minutes after birth. They claim that the Apgar score demonstrates that the child was born alive and that the mother’s claims should be dismissed against them. The mother points to the hospital’s records and her delivery report that state intrauterine death and mother with single stillborn.

Medical experts were presented for both sides. A Staten Island Personal Injury Lawyer said the mother’s expert stated that in his opinion, the fetus died in utero because the placenta detached from the uterine wall. When the placenta detaches, there is no blood flow going to it and the oxygen is cut off to the infant. This lack of nourishment to the infant causes brain shock and death due to brain stem inactivity. He stated that the Apgar score showed no observable activity except for a low heartbeat that he maintains was the result of the resuscitation efforts and did not reflect any actual life outside of the womb.

The court determined that the mother would be allowed to amend her complaint. They determined that there was a triable issue of fact that would cause this case to go to trial, and that the court dismissed all claims associated with the theory that the child had been born alive.

At Stephen Bilkis & Associates, New York birth injury attorneys can help you formulate your claim for recovered damages. We are located in convenient offices throughout New York and the Metropolitan area. A New York birth injury lawyer can examine your case and help you make the best decisions for you and your family.

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