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$5 Million Award for Baby in Jeep Crush Accident

By Gerry Oginski

"NEW ORLEANS ? Chrysler LLC should pay more than $5
million to a couple whose unborn son was fatally
injured when their 1999 Jeep Grand Cherokee went into
reverse and pinned the mother to a brick carport
column, a suburban jury has found."

To read the full article, go to
http://www.chron.com/disp/story.mpl/ap/fn/5687558.html

The article describes a rushed and harried fact
pattern. The pregnant woman was on her way to the
hospital to deliver her baby in May 1999. Mom stepped
out of the car to retrieve her daughter's book, and at
the same time, Dad went to get something from the
trunk of the Jeep. At that moment the Jeep began to
roll backwards and pinned pregnant mom causing crush
injuries to her and her yet-unborn baby.

Well, baby delivered alive, but died 2 1/2 weeks later
from crush injuries suffered when the rolling Jeep
pinned mom against a brick wall. Amazingly, dad told
the police that he left the car in REVERSE as he
stepped out of the car to grab his cell phone in the
back of the Jeep. Despite this admission, a jury felt
that the gear system in the Jeep was not properly
designed and held Chrysler 99% at fault for this
horrible accident. Dad was held 1% at fault.

Comment:

When I first started to read the article, I thought it
was going to say that the baby was crushed in-utero
and was born dead. That was not the case with this New
Orleans couple. However, if that fact patter happened
here in New York, and the baby was not born alive, the
mother would be unable to bring a lawsuit on behalf of
her dead baby since the baby was never born "alive."
The New York courts are very specific in this
scenario. Unless the baby was born "alive" a parent
could not start a lawsuit in behalf of a dead baby.

However, if the mother was injured separate and apart
from the baby, she would still be able to bring a
lawsuit for her own injuries. Also, if she suffered
some independent injury during the course of labor and
delivery as a result of the car accident, she could
bring suit, again, for her own injuries.

Change the fact pattern now to the same situation as
this New Orleans mom & dad. If the baby is born alive,
but with devastating injuries, both mom and dad- in
New York- would be able to bring a wrongful death
lawsuit in behalf of their baby who died 2 1/2 weeks
after being born.

The additional tragedy is that even if mom and dad
were mega-earners and had great educations and
earnings, it is unlikely that a New York appellate
court would uphold a $5 Million Dollar award for this
baby's death. The reality is that no amount of
compensation could ever replace this baby who had
lived within this mother for nine months and then
lived in distress for 2 1/2 weeks before dying.
However, New York courts permit compensation to be
awarded for the damages done to the baby and for the
loss of services to the parents.

I only hope these parents have the strength to go on
and rebuild their lives.

Full post as published by New York Medical Malpractice Blog on April 09, 2008 (boomark / email).