A birth injury can change the first moments of parenthood. Instead of celebrating a healthy delivery, you may watch your newborn suffer a serious injury and need urgent care. This can cause deep emotional pain. In Oregon, however, emotional distress alone does not always lead to compensation.
When emotional distress may support a claim
Oregon allows some claims for emotional distress when a person sees a close family member suffer a serious injury because of negligence. In Philibert v. Kluser, the Oregon Supreme Court recognized a claim for a person who saw a close family member suffer a serious injury or death caused by negligence.
Oregon law sets four key requirements for this type of claim. You must:
- Witness the event that causes the injury as it happens
- Have a close family relationship with the injured person
- See a sudden and serious injury caused by negligence
- Suffer serious emotional distress because of what you witnessed
These rules may apply in some birth injury cases. For example, seeing negligent care during delivery that causes your newborn to suffer a sudden and serious injury is different from learning about the injury hours or days later.
Other legally protected interests may matter
Oregon law also allows emotional distress damages in some cases where negligence harms a right that the law protects. The Oregon Supreme Court has allowed this type of claim when a person’s actions violate a specific legal right.
This type of claim depends on the facts of each case. It does not remove the rules for a bystander claim. Instead, the facts must show that the negligence harmed a separate right protected by law.
Several facts may affect whether you have a claim, including:
- Whether you saw the injury happen
- Whether medical negligence caused the injury
- How sudden and serious the injury was
- Whether you suffered serious emotional distress
- Whether another legal right applies
Medical records and details about the delivery can help show what happened and when. Legal assistance can also help determine whether the facts support a claim for emotional distress under Oregon law.
The details can matter
Oregon law does not treat every emotional reaction to a child’s injury as a loss that can lead to damages. The events during the birth, the child’s injury and what you personally saw may all affect your claim.
If a birth injury raises questions about emotional distress, looking closely at these facts can help show which legal claims may apply.