*Caution. Distressing Circumstances Discussed.*
She was expecting her first child, and she had already designed her future baby’s nursery for when she was to return home with her baby girl. It was an uneventful pregnancy, and she was admitted to the hospital for a c-section after a sonogram showed that her baby was now almost nine pounds. She was more than 39 weeks pregnant at the time.
The doctor she was seeing for her entire pregnancy was not on call that day, or the next, and no one really explained to her why she was not being taken in for surgery. But she didn’t complain. Instead, she waited patiently in her bed as the hours passed. She thought all was well. But the nurses on the Labor and Delivery floor were concerned.
The monitor on her belly when she first entered the hospital showed a Fetal Heart Rate of 140 beats per minute, which is considered perfect. But slowly and steadily, that number dropped. First only to 130 – also fine – but then more rapidly, down to 120, 110, and then to below 100. She remembers being given an oxygen mask, but was never really told why. The nurses would later testify that they asked her doctor’s partner to deliver the baby, but the doctor refused to step in, thinking additional delay would cause no harm. But he was very wrong.
Eighteen hours after first lying down in that hospital bed, a heartbeat could no longer be detected. The news was, predictably, traumatic. The fully developed baby she later delivered would not be brought home. It would take her months before she could enter into that room that had been so meticulously designed in pinks and purples.
Was there an “injury”?
The doctor committed malpractice. This we knew. But what injury did our client sustain? She certainly had no physical injury we could identify. Could she recover money for her mental anguish?
Recovering for “emotional distress” in New York
Before addressing the question regarding this particular client, it is useful to understand how New York law treats issues regarding mental pain, also known as “emotional distress.” Generally speaking, a person can recover for their own emotional injuries when they have been directly injured. Therefore, a person in a car accident who breaks his leg can recover both for the broken leg and for whatever emotional distress that injury has caused him. But only in very rare circumstances can a person recover for emotional distress because someone else was harmed. In other words, despite their terrible emotional anguish when their child gets severely injured, parents generally have no legal right to recover for emotional distress for their child’s injury. (The exception to this rule is known as the “Zone of Danger” theory. A mother, under this exception, can recover for her own emotional distress when she was physically present for her daughter’s injury – i.e., in the “Zone of Danger” – but only where she, too, could have been physically impacted.)
In our case, the law treats the mother’s not-yet-born baby as part of the mother. Therefore, she was permitted to recover for the severe emotional distress of delivering a child that was not alive. Indeed, we settled her case for substantially more than $300,000, a near record-setting amount for this type of injury. However, because of this unique legal framework, had this baby taken one breath after being delivered, she would have been denied all rights of recovery. Although one could argue that all family members should be entitled to recover for their emotional distress when a loved one is seriously injured – we certainly do – it is at least some solace that we were able to assist in making this terribly traumatic event even slightly less painful.
By Ari L. Taub, Esq.
Ari Taub is an attorney at Phillips & Paolicelli, LLP, a Manhattan firm specializing in personal injury and malpractice cases. Ari has dedicated his career to representing seriously injured clients, including many from the frum communities in Monsey and Brooklyn. He is a Columbia Law School graduate and is admitted to practice in New York and New Jersey. Call him directly at (646) 581-9228 for a free and strictly confidential consultation.