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Subject:
From:
Liz Baldwin <[log in to unmask]>
Reply To:
Lactation Information and Discussion <[log in to unmask]>
Date:
Thu, 24 Jul 1997 12:29:14 -0400
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Hello all - sorry for the delay in responding - sometimes I am overwhelmed
with digests (this and several others I subscribe to...) so don't hesitate
to copy a post to me that you think I might be interested in responding to
(anything legal!).

There have been a few lawsuits about this. One in the DC area where the
hospital sued for the bill to be paid, and the mother counterclaimed with
the fact that they gave bottles without consent. One theory is that it is a
battery. Another is that it violates the contract the mother has with the
hospital. I don't know the result - Rachael Hamlet (Lactivist) may know.

One hospital down in Florida was sued for giving bottles - but they also
circumsized the baby without permission, so they had a stronger case.
Again, I don't know the result. Most likely it was settled.

>... However, from a legal
>standpoint you have the "damages" problem.  There is no question, I think,
>that violations of your explicit instructions constitutes a medical procedure
>in violation of your informed consent release form.  However, for a
>malpractice action you need "damage."

Absolutely. And it is hard to sue someone these days for malpractice
anyway. Hard to get doctors to testify. Hard to get a lawyer to take the
case on a percentage if there aren't big bucks involved. And how do you
prove that the baby was damaged by getting a bottle or two? If the baby
developed nipple confusion, and the mother had to retain the services of an
LC to straighten it out, then she would have those costs as damages. If
breastfeeding failed totally, she may be able to recover the cost of
formula for a year (one case gave this as damages).  But you not only have
to prove damages, but causation. How do you prove that the illnesses the
baby had are the result of formula? How many doctors are going to go out on
a limb and testify to this?

Some day, however, there will be a case where because of breastfeeding
mismanagement (which is how I view giving a baby a bottle when not
authroized to do so) a baby becomes severly ill, or dies because of an
adverse reaction to formula. It will probably be only then that the medical
professional realizes that there is a risk of liability for their actions.

It is important that nurses do not give bottles without permission. They
risk not just liability, but more importantly sanctions for violating the
mother's rights. Mothers don't have to sue to seek relief. They can file
grievances and complaints that can put the person giving the bottle just as
much grief as anything else. They can file grievances against doctors with
the state or county medical boards. There are other ways to seek relief.

Liz Baldwin


_______________________
Elizabeth N. Baldwin,  Esq.        Baldwin & Friedman, P.A.
2020 N.E. 163rd St. # 300          N. Miami Beach, Fla. 33162-4970
Phone:  305-944-9100                Home office: 954-929-9090
Fax:  305-949-9029                    [log in to unmask]
http://www.parentsplace.com/shopping/esq/index.html
Breastfeeding and the Law:  http://www.lalecheleague.org/LawMain.html

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