Plaintiff’s Trial Attorney: Schreier & Wachsman, LLP Plaintiff’s Appellate Attorney: Hasapidis Law Offices On May 23, 2024 the Appellate Division, First Department, changed the law for women in New York. Previously, the law did not recognize a claim for emotional distress for women who delivered babies that were born alive, but died due to medical malpractice. A claim for emotional distress was not a cognizable claim if the mother did not deliver a stillborn or herself suffered an independent physical injury. The Appellate Division ruled that a mother can recover for emotional injuries in pursuing a lack of informed consent claim, even without an independent injury. Defendants moved for leave to appeal to the Court of Appeals and those motions were granted. Facts of the Case Plaintiff Veronica SanMiguel was 32 years old at the time the alleged malpractice occurred by Defendants St. Barnabas Hospital, Julie Crocco, C.N.M., and Meryl Grimaldi, M.D. Plaintiff was in labor for over 42 (forty-two) hours prior to the emergency cesarean section which resulted in the delivery of the Infant Plaintiff following a prolonged second stage of labor which lasted approximately five (5) hours. The emergency C-Section did not occur until after there was an attempt, not once, but twice by Defendants to effect delivery by the use of a vacuum extractor. According to Plaintiff’s Expert Physician, the vacuum extractor was not only not indicated, it was contraindicated given Plaintiff’s presentation at that time. Moreover, Plaintiff testified at her examination before trial that she repeatedly asked that a C-Section be performed prior to the time the vacuum extractor was first attempted. During the course of the labor and delivery, the fetal monitor strips demonstrated repeated documented decelerations which were not reported to Dr. Grimaldi, and were ignored by Defendants St. Barnabas and Nurse Crocco. As a result of the failure to timely perform a C-Section, the Infant Plaintiff suffered perinatal asphyxia, cephalohematoma, subdural hemorrhage and died eight (8) days later. Motions for summary judgment were made, and the lower Court denied the motions because it found issues of material fact as to whether the Plaintiff gave an informed consent to the use of the two vacuum extractions on the deceased Infant Plaintiff. The lack of informed consent gave rise to Plaintiff’s emotional distress damages. Indeed, the Plaintiff was hospitalized and underwent extensive psychiatric treatment. Defendant Dr. Grimaldi appealed the Court’s order denying summary judgment. While Defendant Dr. Grimaldi did not dispute the Plaintiff mother’s claim of emotional harm arising from the failure to secure an informed consent, she disputed it, arguing that such damages were not recoverable by a mother in a medical malpractice action arising from an in utero injury. Plaintiff argued that there is a distinct and material difference between a medical malpractice and lack of informed consent cause of action. In the former, the mother plays no role in the in utero injuries. In the latter, the mother, however unwittingly, is obligated to consent on behalf of the unborn child to the procedure that ultimately causes the harm to the child. Plaintiff argued that a mother should be permitted to recover for the emotional trauma of knowing that she gave permission, in effect and however uninformed, to perform procedures or render treatment that resulted in her child’s death.
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