New York Courts Grapple With Proper Compensation When Mothers Sue Over Stillbirth Trauma

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Posted on 5th September 2011 by gjohnson in Uncategorized

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Being a lawyer at times can be a disconcerting job, to non-attorneys anyway. 

Lawyers know that when someone loses a limb it is usually worth one monetary amount, and if  you lose your hearing, it will be worth another. But how do you put a price tag on a mother’s emotional pain when her infant is stillborn?

That’s the question that judges and lawyers are struggling with in New York, where the Empire State’s highest court says that moms can sue for emotional suffering if they claim that medical mistakes resulted in a stillborn birth.

The New York Times did a story on the topic, using several cases studies as examples of the impact of the 2004 change in the law.  

 http://www.nytimes.com/2011/08/24/nyregion/in-stillbirth-malpractice-cases-courts-try-to-put-price-on-mothers-anguish.html?scp=1&sq=stillbirth&st=cse

In one instance, a woman sued and won a $1 million malpractice judgment, which was upheld by an appellate court. Lucia Ferreira had been eight months pregnant, and went to Wyckoff Heights Medical Center in Brooklyn complaining of abdominal pain. The hospital gave her a prescription for a pain killer and sent her home. She went into labor at home, and her baby died when its head got stuck in the birth canal, according to The Times.

In another case study, a Bronx woman, Vivian Acevedo, was offered a $500,000 settlement. She had a stillborn child at Lincoln Medical and Mental Health Center, and has charged that medical staff had not observed the “fetal distress” taking place during the delivery and waited too long to perform a Caesarean on her.

The attorney representing the woman who filed suit against Lincoln is arguing that the $1 million verdict in that Brooklyn Cases should apply to the case in the Bronx, The Times reported.

Needless to say, New York City’s Health and Hospitals Corp. contend that $1 million is too high, and that it would spark many others to seek the same amount.

Ferreira won her $1 million verdict in 2005, and Wyckoff has been appealing it ever since. But it came down to the last appeal in February, “and the award stood,” according to The Times. This is the first stillborn case to go to an appeals court since the New York law was changed.    

Some attorneys are arguing that the $1 million verdict is much too high and should not be used as a standard in stillborn lawsuits. I think these tragedies should be considered on a case-by-case basis, and that a mother’s emotional pain over losing a child should be given as much weight as any physical injuries. 

 


Attorney Gordon Johnson
Past Chair Traumatic Brain Injury Litigation Group, American Association of Justice
g@gordonjohnson.com :: 800-992-9447 :: Attorney Gordon S. Johnson, Jr.