As a mother, you may feel an instant bond with your newborn baby as soon as they are placed into your arms. With that, if they incurred any injuries during the birth delivery, you may feel sympathy towards them, which eventually develops into palpable emotional distress. Even though you may not have been injured yourself, and you cannot physically feel the effects of their injury, you may feel it in your heart and mind. All that said, please follow along to find out whether a mother can claim emotional distress over their baby’s injuries and how a proficient New York City birth injury attorney at Mark L. Bodner, P.C. can help make your argument virtually foolproof.
In New York State, what is the bystander/zone of danger rule?
Simply put, New York State’s bystander/zone of danger rule may allow individuals to sue for negligent infliction of emotional distress prompted by witnessing a third party’s serious injury or death. Without further ado, you may introduce the zone of danger argument in your birth injury claim if the following elements are proven true:
- You must prove that the medical professional’s negligent conduct threatened you with an unreasonable risk of bodily injury or death because you were in the zone of danger (i.e., in active labor in the delivery room) at the time of your newborn’s accident.
- You must prove that you suffered an emotional injury after witnessing in real time or retroactively observing your newborn’s serious injury or death at the hands of the negligent medical professional.
- You must prove that you are the immediate family member of the newborn who was made the victim of the medical professional’s negligence (i.e., with a copy of your newborn’s birth certificate).
As a mother, can I claim emotional distress caused by my baby’s birth injuries?
For example, say that you had to undergo an emergency C-section. Here, the attending medical professional may have made a careless incision or dissection of tissues. This may injure your newborn’s skin and cause them to have a permanent scar or disfigurement on a certain body part or facial feature. Of note, a large lesion may require skin grafting, bone grafting, or other cosmetic repairs when your child grows older. At the same time, you may have been at close risk of getting your bladder, bowel, or other internal organs punctured. This would have required you to undergo another major surgery immediately after childbirth.
So, you may feel emotional distress over the shame and embarrassment your child may feel about their permanent scar or disfigurement. You may also have anxiety over them needing to submit to a serious cosmetic surgery, and the economic and non-economic damages that come along with that. In the end, as the mother of this wrongfully injured child, you may file a medical malpractice claim, cite your emotional distress, and use the bystander/zone of danger argument to support it.
If you still have lingering questions at this point in time, please do not hesitate to reach out to a talented New York City medical malpractice attorney. The team at Mark L. Bodner, P.C. will certainly be the perfect fit for you.