Even Miracles Can Lead to Court

Oh, Baby- Finding Life After Being Told of Death

A family in Argentina has been given the greatest gift a parent could imagine- the child that they were told had been stillborn is alive. Analia Bouter and Fabian Veron were given a death certificate for their daughter and were emotionally preparing themselves to bury their child. Bouter wanted a picture of the baby to display at the funeral, so the parents went to open the casket and found their daughter alive.

The little girl, Luz Milagros, or Miracle of Light, is currently doing well. She is in the hospital for monitoring, since she was born at 26 weeks gestation, but is healthy and growing. The medical staff who declared her stillborn are suspended, pending an investigation. Now what?

Bouter and Veron have retained an attorney and are investigating a malpractice suit. Laws are different in Argentina, but many people are curious how this would unfold in the United States.

Medical malpractice is the first claim that comes to most people’s mind. This situation is a medical one, and seems to center on an error made by medical professionals. However, medical malpractice requires- in general terms- that a medical professional had a duty to the patient; they failed to meet that duty; the failure to meet that duty was a result of more than a small mistake (i.e., it wasn’t something that “anyone could have made that mistake”); and it caused damage or death. While Luz Milagros’ misdiagnosis could have been tragic, it wasn’t. The medical professionals who wrongly declared her stillborn did not cause the stillbirth, they simply reported the wrong diagnosis.

A more likely cause of action would be Negligent Infliction of Emotional Distress, or NIED. NIED is almost never a valid, winnable action, but this case is more blatant than most. To successfully bring a claim for NIED, the situation must be more severe and clearly more damaging and distressful than an average mistake. Being told that your child was stillborn, only to discover her alive in the morgue, seems to fit those qualifications. Bouter and Veron will need to prove that they were damaged, this is usually demonstrated by bills from therapy or other treatments.

Whether a lawsuit will come of this remains to be seen. In the meantime, the only news that matters is that healthy, happy parents will be taking home a healthy, happy baby.

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