New mom given wrong baby to nurse, wants settlement from hospital

by Walter Olson on February 17, 2010

Some commenters find the damages to be elusive, though [Evanston, Ill.; Chicago Sun-Times via White Coat, Jake Aryeh Marcus/BlogHer via Carton/Legal Blog Watch]

{ 13 comments }

1 Jason Barney 02.17.10 at 12:31 pm

” … The patient-care technician offered a tearful apology, which they accepted, Scott Spiegel said.

‘But it’s not enough,’ he added. … ”

So, IT IS about the money!

2 Ron Miller 02.17.10 at 1:07 pm

I agree she has very insignificant damages but I don’t agree with Jason that it follows that this case is about the money. She is bringing a small claim and she may ask for a dollar to send a message. Who knows?

3 BG 02.17.10 at 1:11 pm

ID tags on infants go both ways. When our children were brought to us we had to put our tag next to the baby’s and compare the number to make sure–parents and hospital staff both checked. Parents are just as responsible to identify the child as the hospital staff. We have 4 children and I breastfed them all. While disconcerting, this should be chalked up as a benign mistake and everyone moves on. This family should just get on with their lives and getting to know their new family member. Some things just aren’t worth it and this seems to be one of those things that will just be a big distraction for mom which could end up being detrimental to baby.

In my opinion, if anyone has a case it’s the mother of the baby that was nursed by the wrong mom. Both the other parents and the hospital failed to protect her child from being given to the wrong parent. If the baby had been at risk for some severe allergy where mom is modifying her diet then there could have been consequences for nursing from the wrong mother. (had a friend who is a nurse whose baby was given ONE bottle of formula against her wishes and the baby ended up with ulcers all through his digestive tract due to allergy, don’t think she ever sued but was VERY clear with the hospital that they needed to follow parents’ wishes regarding infant feeding and the baby screamed through most of his first year) While disease transmission is very rare, the risk generally lies in the baby contracting something from the mother rather than the other way around but AIDS research indicates that babies don’t generally get AIDS from mom’s milk. (Like the CPSIA it’s a bioavailability issue: babies don’t contract mom’s cold via breastfeeding and can safely nurse, actually encouraged to, if mom has a breast infection, etc.)

I agree, seems to be about money rather than policy change or real risk to mom.

4 Dirk D 02.17.10 at 1:14 pm

Ron,
She is asking for at least $30,000. That’s expensive milk!

5 Ron Miller 02.17.10 at 1:18 pm

Dirk, that is just her ad damnum clause which means nothing as to what he Plaintiff think of her case.

6 Jason Barney 02.17.10 at 3:24 pm

The story doesn’t indicate the parents are asking for injunctive relief, only “at least” $30,000 in damages, so I’m not sure what else to make of it. I can sympathize to a large extent if the parents sought nominal damages and a review of the hospital identification/security procedures ensuring the likelihood of this recurring was minimal. But the linked story doesn’t explicitly state such.

Editorial note: Shouldn’t the title read, “New mom given wrong baby FROM nurse … ” ?

7 kimsch 02.17.10 at 3:28 pm

Wrong baby TO nurse is correct. Nurse is used here as a synonym of breastfeed, not the title of a health care professional.

8 Jason Barney 02.17.10 at 3:32 pm

Ah, got it.

9 MF 02.17.10 at 8:28 pm

‘Nurse’ can be a noun or a verb. In this case, it was a verb, as part of an infinitive (to nurse). There, aren’t you impressed? ;-)

Of course, this is not the same as taking a word that is a noun and making a verb out of it (like has been done recently to ‘text’). (Did we verb that noun?)

10 kimsch 02.17.10 at 8:32 pm

These babies, hers and the baby she fed, are both 2 years old now. Is it getting close to the end of the statute of limitations ?

11 MB 02.18.10 at 1:21 am

There are no damages. There is no loss. There is no basis for a lawsuit.

What a waste of time to drag this into the courts.

12 VMS 02.18.10 at 8:41 am

The only possible cause of action is negligent infliction of emotional distress. The elements of this cause of action is extreme outrageous behavior on the part of the defendant causing emotional distress with some kind of physical injury. Most courts will do away with the physical injury component in cases where the type of extreme outrageous behavior would tend to show that the person’s emotional distress is indeed bona fide. This exception has been limited to such occasions as a hospital or funeral home losing decedent’s body for a protracted period of time, a telegraph company incorrectly sending a notice that the recipients’ child died, the medical examiner telling the parents that the remains found were that of their child when in fact it was a cat, etc. More recently, a court has held this exception satisfied when a hospital negligently mixed up the results of an AIDS test and told the patient that he had AIDS when in fact he did not, but did not correct this misinformation for many months afterwards.

In this particular case, there was no extreme were courageous behavior on the part of the hospital. Also, there was no protracted length of time involved; the error was quickly rectified. Under these facts, there is probably no cause of action. If the court however decides that there is a cause of action, and I were sitting on the jury, I would award the woman nominal damages of six cents or one dollar.

If the woman were truly interested in making sure that this event did not happen to others the courts of the wrong vehicle. Reporting this incident to both the state health department and the Joint Commission, the accrediting agency for most hospitals and healthcare facilities in the United States. See http://www.jointcommission.org/AboutUs/Fact_Sheets/oqm.htm

The Joint Commission is very eager to investigate incidents such as this. Wrong patient, wrong surgical site, wrong procedure, are three areas in which the Joint Commission is striving to eliminate malpractice. I have no doubt that if this wrong patient incident were properly reported to the Joint Commission, the hospital would be held accountable and the situation fixed so that an incident of this particular type would be far less likely to happen again in both his hospital and another facilities.

13 VMS 02.18.10 at 8:46 am

Sorry about the phonetic errors in the preceding post. That’s what happens when one is “training” his new voice recognition software, and does not proofread the text before posting.

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