Mother Loses Appeal of Stillbirth Lawsuit

Robert Imrie
Pioneer Press

Wednesday, November 12, 2003

WAUSAU, Wis. — A mother failed Tuesday to convince a state appeals court to allow her to seek damages from a doctor and hospital related to her emotional distress in the stillbirth of her baby.

Bonnie Pierce sought damages for emotional distress as the parent of a patient who was the victim of medical malpractice.

The 3rd District Court of Appeals said Pierce could not recover those damages as a bystander because she did not observe the "extraordinary event" that led to the baby's injury — the umbilical cord wrapping around her neck.

Her claim failed to fulfill one criteria established by a 1994 state Supreme Court ruling, the three-judge panel said.

When she was nearly 35 weeks pregnant in November 1996, Pierce, who then lived in Nichols, went to an appointment with her obstetrician, who discovered labor had started, court records said. She was immediately hospitalized at Theda Clark Regional Medical Center.

Within hours, a nurse discovered the umbilical cord was wrapped around the baby's neck, and some steps were taken to alleviate the problem, court records said.

Later, Pierce, then 28 and the mother of two other children, was awakened to find a nurse searching for a fetal heartbeat, but Pierce's doctor later told her that her daughter would be stillborn, court records said.

The doctor and hospital agreed they were causally negligent in managing Pierce's labor, leading the Wisconsin Patients Compensation Fund to pay Pierce $150,000 for loss of society and companionship and $1,639 for the baby's funeral expenses in a wrongful death lawsuit, court records said.

Outagamie County Circuit Judge James Bayorgeon ruled Pierce could also recover for emotional distress related to her own physical injuries but could not recover for emotional distress arising from her baby's stillbirth.

The three-judge appeals court upheld that decision Tuesday, characterizing Pierce's latter claim as one as a "bystander" forced to observe the health care providers' conduct.

To extend the rights to sue as a bystander to an injury caused by improper diagnosis would go too far and conflict with the "historical foundations" of the law, the appeals court said.

Pierce claimed that experiencing the stillbirth of her daughter prevented her from working for a year, court records said.

Pierce's attorney, Avram Berk, said Tuesday he had not read the appellate court decision and could not comment until he did so.

 

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