Milk, Milk, Lemonade, Round the Corner is…Oh, Sorry, Wrong Room

Jennifer Spiegel, a Chicago woman (and probably not the Paul Weiss counsel of the same name, who works in New York) is suing Evanston Hospital after a mix up with her new born baby.  Around 4:00am, a baby was brought to Mrs. Spiegel to be breast fed.  Unfortunately, it wasn’t her baby.  Whoops.

Though everyone involved is healthy, and the babies don’t seem to be too mixed up about the whole thing, Mrs. Spiegel is still suing the hospital for negligence and seeking $30,000 in damages, because this is America, and that’s how we roll.

While I think bringing the wrong baby to be breast fed pretty much meets the definition of res ipsa loquitur, damages seem pretty hard to prove.  No one was harmed, so the mom is basically just suing because she was grossed out.

Under tort law you can recover damages for non-harmful acts under theories of either trespass or battery.  Trespass on real property allows recovery even if the trespasser did not damage your property, merely crossed the line.  However, courts will only award nominal damages in those cases, and unless Mrs. Spiegel is unusually fat, she won’t count as real property anyways.

Under battery you can recover for an offensive, but non-harmful contact, such as an unwanted kiss or spit-in-the face.  This type of contact is pretty analogous to the wrong baby being given to Mrs. Spiegel, but battery requires intent, not merely negligence.

At best, I think Mrs. Spiegel can get compensated for the costs of any medical exams, and perhaps the value of the lost milk.  But, with breast milk going for only about $1.75 an ounce, I wouldn’t expect much of a recovery.

delicious | digg | reddit | facebook | technorati | stumbleupon | savetheurl Tags: , ,

8 Responses to “Milk, Milk, Lemonade, Round the Corner is…Oh, Sorry, Wrong Room”

  1. j'lynn Says:

    Um, hello…didn’t she realize before she put the kid in position that it was the wrong baby?!? Seriously?!? She is guilty of stupidity and is equally negligent (and gross) in my book. What an idiot!

  2. Resabed Says:

    This is what happens when you go to Evenston Hospital. She should have gone to Evanston Hospital.

  3. bl1y Says:

    J’Lynn: She was woken up at 4:00am, and could have easily been disoriented and had the lights dimmed. Also, babies tend to all look the same.

    Resabed: I always appreciate being notified of typos and other minor errors.

  4. Sammy Gompers Says:

    Pretty sure you’ve got the ‘negligence vs. intent’ thing wrong.

  5. bl1y Says:

    That’s entirely possible, Sammy. I haven’t had torts in 3 years, and only got a B in the class. But, I’m still pretty sure that you can’t recover from a harmless accident.

  6. j'lynn Says:

    bl1y…maybe I look at things different as I’m coming from the mom perspective, but the excuses you offered don’t fly with this mommy. Sorry, still stupid, still equally negligent & still gross in my book…

  7. bl1y Says:

    I never said it wasn’t stupid or negligent. But, you can’t sue people for being merely stupid or negligent, there also has to be a harm.

  8. El Says:

    I would recognize a tit when I saw it.

Leave a Reply