In late July, Iveth Yaneth Garcia-Menchaca took her two-month old baby, Issac, to Kosair Children’s Hospital after his father allegedly beat his head into the bathtub. Personnel did their best to save the child, but could not – he was declared brain dead and preparations were made to take him off his feeding tube. However, the mother filed suit against this, stating that only parents could make those medical decisions. A circuit court judge declined to sanction that idea, stating that no parental right survived. Ms. Garcia-Menchaca still did not recognize the ruling, saying she was ‘devastated.’ It brings up an interesting question – can a hospital be found liable for an injury they did not create?

Physical Injuries

In the case of physical trauma to a patient, a hospital cannot be liable for the actual injury, but it or its personnel can absolutely be found liable if they fail to adequately treat the injury, through recklessness or negligence. Such conduct would most likely amount to medical malpractice, which is when a health care professional, knowing the governing standard of care, violates it and causes an injury to a patient.

In this particular case, Kosair’s treatment of Issac was by all accounts exemplary; the fact that their personnel were unable to resuscitate him is not relevant to the question of any alleged negligence. So no liability for physical injury would apply.

Emotional and Mental Injuries

The tort of intentional infliction of emotional distress is a common one, observed in nearly all states. However, there is no indication in Ms. Garcia-Menchaca’s case that Kosair intended to cause her any distress, and instead wanted merely to minimize the time and expense spent on caring for a child who was past saving.

Kentucky does, however, recognize the tort of negligent infliction of emotional distress (NIED). The elements of NIED are fairly simple, and they encompass negligence per se – that is, to have NIED, one must have negligent conduct; a case of negligence must be proven. (Negligence as a matter of law turns on five points that all must be proven by the plaintiff – duty of care, breach of that duty, proximate cause, actual cause, and damages.) If a defendant has conducted themselves negligently, and it caused severe emotional distress to the plaintiff, the elements of NIED have been met.

The idea of emotional distress is much more relevant to this case. Here, the doctor, and by extension, the hospital, owed a duty of care toward Issac, their patient. However, no Kentucky case law supports the theory that a duty of care is owed toward the parents or other family of a patient – it does exist in other states, most notably New York, but as of right now there is no case on point in Kentucky. And if one cannot prove that the defendant had a duty of care toward the plaintiff, the entire case collapses. Ms. Garcia-Menchaca could not argue that Kosair breached any duty of care toward her as the patient’s parent, because as of this writing, no duty of that nature has been established in Kentucky law. If there is no duty of care, there is no negligence as a matter of law, and without negligence, any NIED claim would collapse as well.

Contact A Louisville Med Mal Attorney

If you or a loved one has suffered injury through the negligent or reckless acts of a medical professional, we may be able to help. Call the Louisville medical malpractice attorneys at Meinhart & Manning, PLLC today for a free consultation.