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.