A New York Injury Lawyer said that on 30 November 1982, the primary plaintiff began to have contractions. The next day, she visited her obstetrician (the “doctor”) who told her to go home and wait. At approximately 5:30 to 5:45 a.m. on 2 December 1982, she ruptured her membranes and her doctor was called. He then advised her to go to a hospital where he would meet her. She was admitted at 8:00 a.m., but the doctor never arrived. A hospital doctor advised the plaintiff that the baby was dead in utero but that nothing could be done until her doctor arrived because she was a private patient. Hours later, after 12:30 p.m., word came that another doctor, the doctor’s partner, would be performing a caesarean. Thereafter, the stillborn child was in fact taken by caesarean.
The plaintiff and her husband commenced a medical malpracticeaction against the obstetrician and his company, the obstetrician’s partner and the Hospital where the caesarian was performed; for the personal injuries or birth injuries suffered.
The complaint contains three (3) causes of action: First, on behalf of the primary plaintiff and alleges malpractice in that the plaintiff gave birth to a dead baby, had to have a caesarean, was rendered emotionally sick and disabled and was caused to suffer both emotional and physical pain and injury; Second and Third causes of action are on behalf of the derivative plaintiff and seeks recovery by the second cause of action for the plaintiff husband’s loss of consortium and by the third cause of action for the emotional upset he suffered.
The primary plaintiff avers that during pregnancy, her physician failed to diagnose her pre-eclamptic condition; that during the period of delay, from her arrival at the hospital to the caesarian operation, specifically past 8:00 a.m., plaintiff suffered from great physical pain.
Defendants now move for an order dismissing plaintiffs’ complaint and granting them summary judgment. Defendants, citing various cases, contend that since there is no dispute that the infant was stillborn and absent independent physical injuries to the mother, she cannot recover damages for emotional and psychological harm which results from the stillbirth. Hence, a Bronx Personal Injury Lawyer said the primary plaintiff’s action and the derivative actions based thereon should be dismissed.
The issue is whether or not the plaintiffs have presented any physical injuries unrelated to the stillbirth which are actionable.
It has been repeatedly held that, even if the death of the fetus in utero was caused by a defendant’s wrongful acts, absent an independent physical injury to the mother she may not recover for emotional and psychic harm as a result of a stillborn birth. With respect to the independent physical injury, the injuries must be other than the things attendant to childbirth and must be a cause of the stillbirth in order to be actionable.
An examination of plaintiffs’ complaint reveals that while alleging physical injury, it is essentially seeking recovery for emotional injuries caused by a stillbirth. Moreover, nowhere do plaintiffs allege a physical injury to the mother having a causal connection to the stillbirth. To the extent that any other injuries are alleged, the matters are so intertwined as to be indivisible from the stillbirth itself. Hence, the court concludes that the complaint in its present form must be dismissed.
The plaintiffs’ allegation that because of the doctor’s tardiness in arriving at the hospital, she was kept in needless pain for several hours awaiting the caesarean delivery of a fetus, already known to be dead, is a separate distinct physical injury actionable along with any suffering claimed to have been sustained as a result of negligent pre-natal care.
Here, there can be no question that the caesarean itself was another aspect of the childbirth procedure and thus cannot serve as the basis for recovery. Hours of delay, because of a doctor’s tardiness, cannot, however, be viewed as merely another aspect of the childbirth procedure. A Brooklyn Personal Injury Lawyer said this claim of physical injury with obvious concomitant pain and suffering distinguishes these allegations of the plaintiff mother from the other court rulings.
As far as the other claims not relating to the stillbirth are concerned, a physician is not absolved from malpractice liability merely because the law does not permit an action for every injury, i.e., the stillbirth. It is obvious that the law does not forbid a woman who has a stillborn child, through malpractice, to suffer emotional injuries. It merely holds that it will not permit recovery unless that psychic harm is coupled with an independent physical injury.
On the other hand, the law does not state that merely because there is a stillbirth that recovery for other physical injuries is prohibited. Therefore, and for example, if this plaintiff can establish that her condition of pre-eclampsia was mis-diagnosed and it resulted in damage to her, then she may very well be entitled to a recovery even if her child had been born well and healthy.
Accordingly, the defendants’ motion should be granted to the extent of striking plaintiffs’ complaint in its present form; plaintiffs are granted leave to serve an amended complaint limited to alleging independent physical injuries since, by their affidavit in opposition to the motion coupled with the allegation of physical injury in their complaint, have set forth an actionable wrong.
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