Day on Torts
The Wisconsin Supreme Court has ruled that the mother of a stillborn infant may seek damages for wrongful death and for negligent infliction of emotional distress.
The child died as a result of conceded medical malpractice. The misdiagnosis took place several hours before the child died in utero. The mother sued for wrongful death of the child and her own emotional distress. The hospital settled the wrongful death claim but argued that the mother did not have a cause of action for her own emotional distress.
The Wisconsin court disagreed and remanded the case for trial. The court held that the mother could recover damages for the wrongful death of the child as well as the her personal injuries, including those caused by negligent infliction of emotional distress.
The court explained that the “wrongful death claim does not and cannot compensate the mother for the pain and anguish she suffered associated with the stillbirth of her child….” Read the decision by clicking here.
I believe Tennessee courts would reach a similar conclusion. Tennessee’s wrongful death law is based on the notion that the claim is that that the decedent would have had but for the death. The claim of the mother for her personal injuries is seperate. Our Supreme Court has all but confirmed that emotional injury claims are entitled to the same status as personal injury claims. Therefore, if you have a case where the carelessness of a doctor or hospital caused the death of a viable fetus you should assert a wrongful death case and a neglilgent infliction of emotional distress case.
In the event that the fetus is not viable, Tennessee law does not permit a wrongful death claim but there would still be a negligent infliction of emotional distress claim.