New York Personal Injury Lawyer Blog 24/7
A mother and on behalf of her deceased daughter, sued three doctors, two nurses and a hospital for medical malpracticeand for her daughter’s wrongful death. However, the hospital together with one of the doctors and one of the nurses separately move for a decision without a trial to dismiss the claims for emotional distress and lost society, comfort, and affection. The said doctor also seeks dismissal of the mother’s claims for lost support, services, and protection.
In opposition to the medical practitioner’s motions, the mother maintains that her action is closer with the previous court case in which a mother may recover for emotional distress when a child is stillborn due to medical malpractice. Further, a New York Injury Lawyer said the current record raises a factual issue whether the mother’s child was stillborn, since the opponent didn’t show that the child took a breath or had a heartbeat. Based on records, the state’s public health law defines live birth as a product of conception which after separation breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles. The medical practitioners point out, however, that as they failed to make that showing, it was unnecessary, because the mother pleaded another claim on which with that previous court case a mother may not recover for emotional distress when her child is born alive and then dies due to malpractice. Consequently, the mother moved to revise her complaint and bills of particulars to clarify her alternative theories.
The court grants the mother’s motion to revise her complaint and bill of particulars as specified. Further, the court also denies the medical practitioner’s current motion for a decision without trial, without prejudice, as they seek dismissal of her claim for emotional distress.
Regarding the claims that remain unaffected by mother’s proposed revisions, the court denies the medical practitioner’s current motions, with prejudice, as they seek dismissal of the mother’s claims for lost support, services, or protection that are of financial value or other financial loss from the child’s wrongful death. However, the court grants the medical practitioners’ current motions 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 death.
Even if the mother’s excuse for waiting so long to serve her motion to revise her pleadings is lacking, prejudice is the overarching test for denying the modification in the pleadings. Based on records, allowing the modification will take the litigation a step back, but any prejudice to medical practitioners demonstrated or not, will be mitigated by doing so. A Queens Personal Injury Lawyer said confronted with the evidence supporting the mother’s alternative theory of recovery, which denying the modification would preclude, and balanced all the factors discussed. The court grants the mother’s motion to revise her complaint and bills of particulars. The court considers them served and filed when the motion was served and then filed. The medical practitioners answered the modified complaint within 30 days after service of the order.
The note of issue will leave behind to provide the medical practitioner’s opportunity to conduct disclosure and move again for a decision without trial on the mother’s claim for emotional distress only. However, the court denies the medical practitioners’ current motions for decision without trial seeking to dismiss that claim, without prejudice.
Consequently, a Staten Island Personal Injury Lawyer said the court grants the medical practitioner’s current motions in seeking for the 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 death.
It is excruciating for any mother to see her child die immediately after birth. If you believe that you suffered from a medical malpractice, call the NY Medical Malpractice Attorneys so they can assess your legal actions. If your child experienced medical conditions resulting from her delivery, don’t hesitate to ask help from the New York Birth Injury Lawyers or NY Injury Attorneys at Stephen Bilkis and Associates.