A mom is given a newborn baby to nurse during middle of night in the hospital (one of Dr. Wes’ hospitals of all places, too). Only problem was that the mom was accidentally given another family’s infant. The mom then nursed another family’s baby. A nurse walked in the room and was surprised to see mom nursing the wrong child. After learning about the mistake, now mom and her personal injury attorney husband are suing the hospital for more than $30,000.
Hmmm. If they’re suing for the value of lost milk, a couple of ounces for $30,000 amounts to about a quarter million dollars a gallon.
Comparing breast milk to oil, according to the lawsuit, this mom’s milk would cost $10 million per barrel. OPEC is lucky if it makes $150 a barrel — those guys really need to hire her husband’s law firm.
If they’re suing for her lost time, then 10 minutes to nurse the kid amounts to $180,000 an hour for wetnursing. That’s not bad coin, either.
Although you do have to consider that her husband’s law firm stands to make about one-third of any judgment, so her potential take home is considerably less.
Just another example of why we need a loser pays tort system in this country.
UPDATE FEBRUARY 15, 2010
In the comments below, Max Kennerly made an interesting claim. The parents’ lawsuit against the hospital might be able to proceed on a theory of battery.
If it is a battery claim, then these poor injured plaintiffs should really be suing the newborn infant for negligent suckling. Why are they suing the hospital?
The hospital can’t batter anyone – unless one of its lights falls off the ceiling and konks someone on the noggin. And I’m sure the aide who handed the baby to the mom didn’t offensively touch the mother.
Oops. I almost forgot. Battery claims require intent – they’re intentional torts. So the lawsuit still has no business being filed.
Come to think of it, I think that the infant’s family should sue the mother. After all, Jennifer Spiegel intentionally shoved her boob in this poor infant’s face, probably scared the hell out of the kid, and could have nearly suffocated him. And she did all this without even checking to see whether or not it was her kid.
In fact, the hospital should probably call the Department of Child Protective Services on that lady.
Battery. Indecent exposure to a minor.
Jail time isn’t good enough for her. Bring back the stockades.
I like it when we use single examples to make the case for blanket rules! We should do that with sanctions on physicians as well.
For example, there are many physicians practicing with a history of drug abuse. We should make all physicians get drug tested every week at their own expense.
See how that works!
That being said, I hate it when people file personal injury lawsuits in cases with no damages.
It’s interesting that given the health reform debate we hear so little substantively on this site about it.
For those who are still interested in it, here’s a very good piece on the weakness of that medical bankruptcy study a few years back, which has been the basis for some of the push for universal coverage.
http://meganmcardle.theatlantic.com/archives/2010/02/a_little_more_about_medical_ba.php
Note the reference to the decline in bankruptcy filings after the enactment of the 2005 bankruptcy “reform”.
It could be they are suing for the potential exposure to pathogens, rather than lost milk or time…
Why should we assume that mere filthy lucre is behind the lawsuit?
(in case it isn’t obvious, some mild sarcasm did infuse the above).
Real tort reform would not limit the types of suits that are brought. What it needs to do is punish attorneys that file obviously frivolous suits.
In many cases, the legal system is the only way to hold some people accountable for their mistakes and is necessary to help real victims. Limitations on lawsuits will hurt legitimate victims and prevent us from holding bad doctors accountable.
One thought that comes to mind is making the attorney who files a claim based 100% on general damages liable for the attorneys fees of the other side if he/she loses.
Another thought is that whenever a jury gives a defense verdict, to send it back and ask it to determine if the case was frivolous. It would be kind of like the death penalty phase of a criminal trial. If the jury determines that the case is frivilious, then the plaintiff and/or plaintiff’s attorney would be liable for the other side’s attorneys fees. This will make it easier for insurance companies to take these cases to trial because right now, even in the breast milk case, they might get a settlement of about $5000 because of the cost to litigate the case
Agreed in many ways. Except making the attorney liable everytime they lose, which has the chilling effect of discouraging people from sorting out honest disputes (ie, who really did have the right of way when both believe they did).
Also, I would disagree with the part about getting $5,000 for patently frivolous cases from insurers. It’s just not that common. If a case truly has no merit, they won’t settle simply because they don’t want to encourage this sort of thing. The breast milk case is one they might throw a little money at, simply because while the negligence is clear (based on what we know), the damages are tough to figure. That is one where an insurer MIGHT go ahead and offer something, as they know there is exposure, it’s just difficult to tell how much.
Loser pays hasn’t stopped the legal system in the UK, has it?
Loser pays doesn’t really work like you think it does in the UK. It’s not a blanket rule.
But hey, if you want to offer us UK style healthcare, where people don’t have to worry about bills if you screw up, then let’s talk about implementing their legal system!
You seem to want one without the other.
hey WC ..You don’t get it. the colostrum in breast milk the first few days is liquid gold and should be for her child only.
Actually ..I am teasing here. but I would be concerned if anything could be transmitted either way. If that’s not a concern ..then forget about it!
I would be more concerned if I were the mother of the child who drank another mother’s milk and would want her tested for everything. I bet the other mother doesn’t even know.
Wow – wet nurses of the past were highly undervalued!
Tarl Nuestadter,
Exposure to potential pathogens is not damages. You either get exposed to pathogens or you don’t. Potential is irrelevent. You potentially get exposed to pathogens (tuberculosis, etc) every time you are in the same room with a doctor or walk into the hospital.
Why should we assume that mere filthy lucre is behind the lawsuit? Because unless she tested positive to a disease (which the article makes no mention of), then the only thing she has lost is time and milk. Sure it could be upsetting to nurse the wrong baby but its hardly something to sue about.
I’m with SeaSpray. I would be very alarmed if I were the mother of the child that was nursed by someone else, and would probably demand pathogen testing for the woman as well as some followup testing for my child.
Other than that, there is no loss here and should be no lawsuit.:roll:
Too bad they weren’t paying during the years I was nursing my babies and donating to the local milk bank!
I don’t see how this case can procede. No damage occurred to either baby or mother – unless the mother has full blown aids or hepatitis and infected the infant! Wait, maybe the baby nibbled a little too hard on her nipple. I say if a lawyer takes a totally frivilous case like this and loses, they should be put in the stocks and pelted with dirty diapers.
I think the responses bracketing yours indicate that not everyone agrees that it is frivolous. Which is why we have a system to resolve these disputes.
Even some random ER nurse like me knows that you don’t have a claim against a hospital or nurse or whatever if there was an error and no harm resulted from that error.
If I give Zofran to someone and Reglan was ordered, oops, it was an error, but the patient’s nausea is relieved nonetheless and they weren’t HARMED.
What a waste of resources and how damaging to the healthcare system to sue over something as silly as this.
I am aghast that this mistake was made, and think that surely there should be some heavy penalty. I care not for the mother’s loss of milk, but I AM appalled that this story is a sign that in this modern day it is still so easy to MIX UP BABIES. Why on earth can they still not figure out a system to ensure that the wrong baby doesn’t go home with the wrong family? This late-night milk episode is a sure sign that there is still no decent system in place.
This happened twenty years in Texas, on my shift but not to me, personally. A tired nurse doing a double shift took out two newborn blond girls to their Mommies, with similar names and in ajoining rooms. The huge concern then was blood borne pathogens, although some freely applied compensation kept this out of the news and out of courtroom. In fact, the whole incident would have been gone unnoticed if Mama “A” hadn’t been looking for a little nevus that Baby “B” didn’t posess. Mama “B” had already fed and burped the infant she was brought and sent her back the newborn nursery
(oh yea…and it was really Idaho twelve years ago and the bablies were boys…or Mid-Eastern, or maybe they were blond girls from the Sudan so this happened in Florida in 1999 during Y2K problems….at rate, this did NOT happen to you…)
Loser pays here would just up the ante for the hospital, which is obviously at fault. There’s no excuse whatsoever for giving a mother the wrong infant — both are supposed to have nametags to prevent anything like that from happening.
Is this the worst thing to ever happened to a patient? Of course not. But it rightly sends chills through people’s spines when they read it – if the morons at the hospital can give the wrong baby for nursing, then they can certainly let a family walk off with the wrong baby. The morons rightly deserve to get hit with painful judgment; hopefully it’s enough to get them to adopt basic protocols to keep from mixing up the babies.
You’re forgetting the fact that, for the most part (except in cases where damages are presumed) one has to prove damages and causation in order for the lawsuit to be successful. Simple negligence isn’t enough.
It’s like saying that someone who negligently runs a red light and narrowly misses hitting a car in the intersection automatically owes someone money. Maybe the person in the other vehicle was scared. Does being scared warrant monetary compensation? Even if damages are minimal – maybe the other driver was scared so bad he crapped his pants – should the other party be responsible for court costs because he wants a new pair of Jockey shorts?
If I get scared because of an unsubstantiated comment that Matt posts, would a loser pays rule make him liable to me for post traumatic stress and psychological counseling?
“Maybe the person in the other vehicle was scared. Does being scared warrant monetary compensation?”
Aren’t you physicians always caterwauling about the pain and anguish of being served with lawsuits, and having to give depositions? I’ve even seen some of you ask for compensation for your “pain”.
However, most states I’m aware of require physical harm before you can claim emotional damages, except in extreme circumstances. For example, if you saw a drunk driver run your child down and kill him/her, there are states where you would have an actionable claim. Again, valuing it is the tough part.
“If I get scared because of an unsubstantiated comment that Matt post”
If that ever happened, you just might! Fortunately for you, though, unless I just tell you it’s my opinion, I usually post the links so you can verify. Or if I don’t, as always, I invite you to ask me to verify and I’ll be glad to. So no need for you to be frightened!
Historically, the concept of medical malpractice was rooted in the tort of battery, loosely defined as “an unwanted touching which would be highly offensive to a reasonable person.” Back in the days of yore, surgeons were sued upon the theory that the patient only consented to an operation within the standard of care, and did not consent to being touched and injured in a negligence manner.
For obvious reasons, every state has moved beyond the “battery” theory and has created a specific “medical malpractice” tort (often under the more general rubric of “negligence”), but the battery concept remains theoretically useful, and from time to time you will see courts considering it when evaluating cases — like the one were talking about — that don’t fit the standard mold of medical malpractice.
Here, if the nurse had brought the wrong baby out and the parents or the nurse had noticed and freaked out, you would probably be right. However, at least as you described it, the mother actually started nursing the child. Would you consider it “an unwanted touching which would be highly offensive to a reasonable person” for a mother to nurse the wrong child? More to the point, do you believe that no reasonable person could consider such to be highly offensive?
If so, then, yes, you are correct that there is no viable tort. I’m willing to bet that the court let it go to a jury to decide if it was “highly offensive to a reasonable person.” If they say no, then so be it — that is precisely why we have a jury system, to answer factual questions about what hypothetical “reasonable persons” believe.
Here’s a thought – do away with the nursery and just keep your baby “rooming in” with you. Then no one’s going to mix up your baby!
This is a frivolous lawsuit… like most are these days.
Most lawsuits these days are businesses suing businesses.
Yeah, well when those businesses are the ones providing my health care (or the health insurance my family can no longer afford to keep), all these stupid lawsuits are doing is driving up costs.
I’ve breastfed two children. Pathogens aside (which are pretty hard to pass along through breastfeeding unless the mom has bloody nipples from poor latch), this baby actually got a great deal out of this mix-up – exposure to another mom’s immune system, possibly even protecting him from diseases that his mom had never been exposed to. No one’s dead, and (again, pathogens aside) no one’s injured… this is just a stupid lawsuit.
There’s this amazing thing that happens in day to day life that, if more people would go back to it, we could do with a LOT fewer lawsuits. It goes something like this:
“Mrs. Spiegel, I’m really sorry for the mix-up. It was a mistake, and I do take responsibility for bringing the wrong child to your room. It never should have happened, and there’s no excuse for this error. We will happily provide blood tests for you and for the baby to make sure everyone remains healthy.”
“Nurse, I’m tired, you’re short staffed like every hospital in this country because stupid lawsuits keep taking money away that could be used for staffing instead of someone complaining their c-section scar has a 5* incline on the left compared to the right and has ruined her perfect bikini body. I’ll happily accept the blood test, and please be sure to double check the ankle bracelets before handing off a baby. Then again, I can’t believe I thought it was a good idea to let my brand new baby that I’ve been anticipating for the last 9 months out of my sight within hours of his birth – so the responsibility it partly mine.”
WOAH! Everyone accepting responsibility for a mistake! Personal accountability! Shocking concepts in today’s day and age!
Call it want you want Matty, the end result of all these suits will be the costs passed on to the honest consumers.
“all these stupid lawsuits are doing is driving up costs.”
Actually, CMS effectively sets the cost of medical services, and thus your health insurance. And, since most lawsuits are transfers of funds, it’s not really taking as much out of the system as you think. For example, if you’re injured today as a result of someone’s negligence, and you file a lawsuit and recover, your health insurer has the right to be paid back out of the recovery. Which actually benefits them and all their premium payers as opposed to if the responsible party wasn’t held liable. It’s called a subrogation right, if you want to google it and verify. The lawsuits against your physicians insurers have little to do with the cost of your care.
What will affect your care are the multiple class actions filed by physicians against health insurers, that have cost the health insurers billions. If you want to limit those, you are welcome to try.
That said, I agree with you that this shouldn’t have been filed. No real damages.
Wait – did Matt just admit that this was a *frivolous* lawsuit?
Nope. It’s not “frivolous” at all. There’s a clearly actionable claim, it’s just that damages are difficult to ascertain. It’s not one I’d take for that reason. I’ve never taken a defamation claim on contingency for a similar reason – they’re too hard to value since you don’t have any out of pocket expenses.
You, like most people, think of the term “frivolous lawsuit” as “any lawsuit I disagree with, no matter how little I know about it”. I think of it in terms of whether the claim has an actual basis. This one undoubtedly does.
“Damages are difficult to ascertain” is different from “no real damages”. I think you agree with your latter statement but are trying to weasel out of getting busted.
By the way, you’ve had more than two weeks to come up with your manifesto on how to act correctly – on any subject in the universe – and you still haven’t done so.
Still waiting ….
[crickets]
I actually already answered your question, I think. The paragraph you linked to contains a number of them – so which one are you talking about? I’ll be glad to answer it, again if necessary.
However I do know that I asked you four very simple, very short questions, clearly delineated. And you’ve yet to respond. I think even the crickets know you won’t and they’ve given up.
” I dare you to come up with an algorithm on how to practice any aspect of law at all in a non-negligent manner”
By the way, if this is the question, I answered it already:
” see the problem though. The above quote. You think one CHOOSES to be negligent. It’s because you don’t understand the meaning of the word. It’s not an intentional act, per se. It’s not like a battery, where you make the conscious intentional choice to strike someone.
Negligence is effectively an accident. You’re negligent when you think the light is green when it’s red. You’re negligent when you accidentally operate on the wrong leg. You didn’t CHOOSE to make the mistake, it happened. Doesn’t mean you should be insulated from the consequences though.
There is no algorithm for humans to achieve perfection. That doesn’t exist. It’s in our nature to make mistakes. That’s why we buy insurance – not because we plan on running our neighbor’s kid down in our car, but because we understand there’s a cost if we accidentally do. The purpose of a lawsuit, though, is to determine 1, if indeed you did make a mistake, and two, what the cost to another person was of your mistake. Sometimes there’s a dispute about whether you did, sometimes there’s a dispute just about the value of the mistake.
I think you’ve been the one who’s been outed. For using and discussing terms that you don’t understand. Hopefully the above helps clear them up for you.”
The fact that you don’t understand or like the answer isn’t my fault. It’s probably because you’re yammering on about subjects you lack the base of knowledge to understand. That’s why I don’t talk about how you should practice medicine better. Only you can improve that system!
I was focused on pathogens ..but others are right and protocols broken or not good enough and there should be better enforcement and also disciplinary measures.
That being said ..even though it was an egregious error ..I am also big on mercy and who among us hasn’t made mistakes from time to time ..albeit ..this one was major? I think the nurse that made the mistake must’ve felt awful and would never make that mistake again.
Departmental meeting definitely in order to see if was their weak protocols and/or human error ..address accordingly.
Sure, this would be upsetting (Personally I didn’t let my first child out of my sight at the hospital), but it warrants an apology and revised procedures rather than a payday.
Amen to the loser pays system. With all the talk of health reform, I rarely hear this side of how lawsuits are draining our system, from the extraordinary costs of malpractice insurance to the huge payouts. Of course, there are circumstances where a lawsuit is justified, but if we could only eliminate the frivolous ones…I’m of the thinking that no harm came to the baby here, and an official apology would be enough.
Loser pays would not change anything, as the poor still wouldn’t be able to afford it. And, as Max pointed out, in this case it would just cost the hospital more, because they are going to lose. The only question is damages.
My girlfriend is a home birth midwife. She NEVER mixes up babies.
Now lets get CPMs legal in every state for everybody so that we can see more of these no-mix-up births!
(Mine were born in a hospital simply because I lived in SD where assisted homebirth was/is illegal for the midwife. Otherwise I’d have been all over one! Thank your girlfriend for me!)
And no one is asking how *MOM* didn’t notice it was the wrong child. Both my children roomed with me most of the time (though they did occasionally go to the nursery), but I did actually look at them pretty closely when nursing, even at night!
Oh no I got put in the wrong hospital bed and had to breathe the wrong hospital air….gimme $100,000 NOW!
WC, Please keep us abreast of this situation.
He’ll be here all week. Be sure to tip your waitresses!
Ooooh. You’re good.
I’m pretty stinking funny, if you’ll just pay attention!
You’ve had a couple of funny quotes in the past – but this comment was directed at Doc99, not you.
I know. My response was a general observation for your benefit.
Funny Doc99!
You want to believe WC’s update is tongue in cheek, but his grasp of these legal issues he so often opines on is so tenuous, you can’t be sure.
What say you WC?
So you’re saying that, given the information provided in the newspaper article for this case, there *could* be a cause of action for battery against the hospital?
Or you’re saying that, given the information provided in the newspaper article for this case, the child’s parents couldn’t have a cause of action against the negligently nursing mother?
Jail time – that was tongue in cheek. I think.
The mother lacked intent to make a battery case. As you surprisingly correctly pointed out, battery is an intentional tort.
As to the hospital, the child is merely the instrument. Much like if I were to hit you in the head with a snowball, that’s a battery, and the snowball is the instrument. Neither the child or the snowball can formulate the requisite intent to strike you.
Again, as Max pointed out, it’s a theoretical underpinning for the claim. The claim remains medical malpractice I’d bet. And incidentally, the hospital itself is only liable through the theory of respondeat superior.
Hopefully that helps you understand.
So you’re saying that the mother really didn’t intend to shove her breast in the kid’s face and therefore shouldn’t be liable?
Or are you saying that the mother didn’t intend to touch the child in a tortious manner and therefore shouldn’t be liable?
If the former, you’re full of breast milk.
If the latter, then you need to go back and read your law books, there, counselor. That’s like saying that a surgeon didn’t intend to amputate the wrong limb and therefore shouldn’t be liable for medical battery.
Where’s the intent to cause tortious contact on the part of the hospital? The aide didn’t swing the kid around by the feet like some makeshift bola and konk the negligently nursing mom in the head. Nor did the aide rip off the negligently nursing mom’s shirt, expose said mother’s nipple without her consent and ram the kid’s face in her breast.
The aide handed the child to the mother. The negligently nursing mom accepted the child from the aide. You can’t even call what occurred “unwanted contact.” The mother held out her arms and took the baby.
Don’t make me start linking to first year law books to teach you your own profession.
“So you’re saying that the mother really didn’t intend to shove her breast in the kid’s face and therefore shouldn’t be liable?”
Elements of civil battery (in my state at least):
1. Acted with intent to cause some harmful or offensive contact with a person;
2. That the contact resulted.
Then you have to prove damages. That illustrates why simple battery doesn’t work for these types of claims, and why it’s more of a negligence claim. As to whether this woman committed a battery on the child, that’s for the jury. It’s why we have them. I trust you, and other voters, to make that call.
“That’s like saying that a surgeon didn’t intend to amputate the wrong limb and therefore shouldn’t be liable for medical battery.”
There is no such claim as “medical battery”. You’re arguing against a tort that doesn’t exist. And again, as Max pointed out to you, battery is the THEORETICAL UNDERPINNING of the malpractice claim. It’s not the claim today.
“Then you have to prove damages.”
Wrong, counselor. “However, the plaintiff need not prove damages in order to hold a defendant liable for a battery.”
“There is no such claim as “medical battery”. You’re arguing against a tort that doesn’t exist.”
Wrong again, counselor. Read some case law once in a while.
I’m actually enjoying participating in your education as an attorney.
Once you start forwarding me a stipend, I’ll develop a lesson plan for you.
“Wrong, counselor. “However, the plaintiff need not prove damages in order to hold a defendant liable for a battery.””
Read your link – that’s for CRIMINAL law. For a civil claim you’ll need damages. There is an action for battery in both. One is a criminal offense, one is a tortious act. Counselor.
“Wrong again, counselor. Read some case law once in a while.”
Your case law all references medical malpractice cases, WC, Esquire.
I’ll pay, but you’re going to need to provide some correct information first.
[...] commenters find the damages to be elusive, though [Evanston, Ill.; Chicago Sun-Times via White Coat, Jake Aryeh Marcus/BlogHer via Carton/Legal Blog [...]
Gee, I have nursed about …8 infants on different occasions and only 2 of them were mine. I don’t know whether to hand myself in to the cops for assault now or send the parents a bill.