Is a physical injury required to file a birth injury lawsuit-or any medical malpractice lawsuit? While physical injuries to patients (mothers or children) are by far the most common harm suffered in these cases, they are not necessarily required. That is because the courts in many jurisdictions recognize that severe injury can be caused emotionally when mistakes are made, even if that does not include immediate physical injury.
This principal is probably best understood by considering an individual case where this is at issue. Medical Daily News reported last week on a new appellate decision that allows a birth injury case to move forward upon claims on emotional distress suffered by a mother after the birth of her child. The plaintiff in this case was a new mother. While pregnant she had visited the defendant-doctor to have an ultrasound performed. The doctor examined the results and explained that he did not notice any problems and the baby was developing normally.
With this news, the mother went in to have the baby not long afterwards. However, what she didn’t know was that the doctor had made an egregious mistake when examining the ultrasound. In fact, the baby was not developing normally and instead had a wide range of deformities. As a result of the ultrasound error the doctor did not prepare the mother at all for what her son would look like when he was born. Instead, she was completely shocked and thrown into severe distress as she saw her child for the first time immediately after the exhaustion of the birthing process. The boy suffered serious physical formation issues. He had no legs below the knees and no arms beyond the elbows. He had an accessory tongue, an umbilical hernia, delayed growth of the jaw, and a ventral curvature of the penis.
As would be expected to occur to any mother in this situation, without any preparation for this reality, she was sent into dangerous emotional and mental state. The birth injury lawsuit filed later explained that the mother was thrown into “grief, rage, nausea, hysteria, nervousness, sleeplessness, nightmares and anxiety.” This particular suit includes claims of both regular negligence as well as noneconomic damages for emotional distress.
The defendant doctor challenges the emotional distress claim suggesting that the doctor did not owe the mother a duty in that context nor could he have foreseen that the inability to prepare her for the deformities her child faced would led to such distress. The court rejected this argument. They referred to opinions filed in other states where courts noted that the doctor-patient relationship was such that these sorts of issues should clearly have been foreseen by doctors and accounted for. As the medical malpractice lawyer noted, the patient suffers significant consequences as a result of the quality and accuracy of the information that the doctors share with that patient. As a result, these sorts of cases present clear situations where a legal duty has been breached causing harm to the patient. The court determined that the suit could therefore continue, with attorneys collecting more evidence before potentially going to try to allow a jury to decide liability.
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