This case is being heard in the Special Term of the Supreme Court of Queens County. NYC in the state of New York. The question before the court is whether the mother of a still born child who alleges that she was caused to endure excruciating pain and unnecessary injury and delay by reason of malpractice of the defendants is able to recover for the alleged emotional and psychic harm that resulted from the still born birth.
The question before the court is interesting as the defendants of the case have motions for summary judgment to dismiss the complaint against them for failure to state a cause of action that is cognizable under the laws of the state of New York.
The case at hand deals with a medical malpractice action that arises from the obstetrical care that was provided to the plaintiff by the defendant hospital on the second of June, 1981. This is the date that the plaintiff delivered a stillborn fetus.
The plaintiff alleges that while at the defendant hospital she had numerous physicians attending to her pregnancy and delivery. She states that the defendants are guilty of malpractice because they failed to properly anticipate a breach delivery and did not provide competent physicians to handle such an issue.
The defendants tried to deliver the breech baby vaginally. This delayed the delivery of the infant and was extremely painful for the plaintiff. The plaintiff alleges that this was negligent and caused her to suffer from severe and serious physical, emotional, and mental injuries. It is further alleged that this delay in delivery was the cause of the infant being still born.
The defendants are arguing that the plaintiff has not stated a cause of action in the case and is only seeking emotional damages as a result of having a still born baby. The defendants argue that they are not liable for the baby being still born. The defendants offer several cases as evidence to support their case for summary judgment to dismiss the complaint that has been made against them.
Recent legislation in the state of New York allows mothers of still born children who meet certain criteria known as Bovsun criteria, to have their claims recognized as cognizant even if there are no physical injuries in the case. The plaintiff in this matter has met these criteria.
For this reason, the court finds that there are triable issues of fact in this particular case. The plaintiff has met her burden to establish these facts. The court is ruling in favor of the plaintiff in this case. The motion for summary judgment to dismiss the complaint made against them by the defendants is denied.
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