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Armstrong v. A.I duPont Hospital for Children, C.A. No. N11C-06-146 (Del. Super. Jan. 31, 2012) Herlihy, J.

In this medical malpractice action, the question before the Court was whether a claim for negligent infliction of emotional distress is a viable cause of action where the negligence is continuing and occurs in the third person's presence. In this case, plaintiffs' son was taken to the hospital for a surgical procedure. He was released from the hospital still under the influence of medications rendering him unresponsive. The plaintiffs' were present and witnessed their son being loaded into a wagon and wheeled to their car. Plaintiffs' son died a few hours later. On these facts, the Court concluded the plaintiffs had pled a cause of action for negligent infliction of emotional distress. In so holding, the Court distinguished the factual situation presented in Snavely v. Wilmington Medical Center, 1985 WL 552277 (Del. Super.), where the court found no negligent infliction of emotional distress to a father who witnessed his badly bruised baby after a c-section. Specifically, the Court noted that in Snavely, there appeared to have been a particular, moment-in-time act of negligence during the delivery of the baby. In contrast, in this case Plaintiffs witnessed negligence as it continued to happen, beginning with the negligent act of discharging their son in his condition, and the resulting death which could not be isolated from the preceding acts.

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