Can I sue the hospital for negligence for giving my son to the wrong mother and him being breastfed by her?

I know that this is a sue happy time in America, so I am very torn over this incident. My son was give to the wrong mom and was nursed by her. Once the hospital realized their mistake, they did not notify us until several hours after the fact, and only after they ran testing on him due to exposure to the other mother's "untested" bodily fluids (I should add that these test were run without our consent). I am trying to use my head here, but I am so angry...they were careless with my son and now he will have to be test twice a year until he is two to be cleared from any possible exposure to several diseases including HIV/AIDS, Hep, and many more. I purposely did not take narcotic pain relief to avoid his exposure to it, and I am aware now that because of this very avoidable mix up, he was exposed via th other mother!! In a "sue happy" world, is this an instance where it is warranted??? I should add that for all our trouble, they offered us $40 worth of gift cards to a chain restaurant...

I should say that we have contacted a few lawyers and have been told that it is not malpractice unless our son has been "damaged" in any way...obviously we pray that this is not the case. I am not a lawyer, so I do not know if there is something different we should be suing for instead...the whole situation is very stressful...

Although you are furious (and should be), unfortunately you DO NOT have a viable claim for negligence; which in this case would be considered "medical malpractice".

There are 4 elements that MUST be present in order to prove the civil tort of negligence.

1) Duty of Care - you have to prove that the hospital owes you a duty of due care (Here there is NO QUESTION, you proved this just because it is a hospital treating patients)

2) Breach of that Duty - you have to prove that the hospital didn't give you care that equaled the standard of reasonable care. (Here there is NO QUESTION that you proved this element because the care was so grossly wrong)

3) Injury in Fact/Damages - you have to prove that your baby was injured and suffered damages that can compansable. Thankfully, your baby suffered no injury as a result of this horrific mistake. God forbid, your baby develops some kind of illness that is directly related to this other mother, then you could sue for negligence but right now there is no physical injury. (Here is where you fail to meet the burden of proof)

4) Causation - you would have to prove that the injury that your baby suffered is DIRECTLY caused by the hospital's error. (Clearly, if you don't have #3, then you can't possibly satisfy this component)

American Law does NOT provide for "what ifs", it only deals with "actual offenses". In order to successfully bring a case for negligence ALL FOUR of the above elements MUST BE present. Even if you are only missing 1 component, you CAN NOT bring a negligence suit.
As for the offer of the $40 gift cards, I would find that offensive too. (By the way another poster had said that the gift cards are evidence of guilt, that is 100% wrong. Settlement offers, whether accepted or not, are NEVER admissible in court as evidence or acknowledgement of guilt).

I hope this helps to explain why you don't have a viable lawsuit (yet).

My recommendation would be to file an official complaint with the hospital and your state's medical board. They will investigate the incident and most likely will discipline those involved. If you're really out to expose them and to make them suffer for their mistake (like I would be), go to the press. Call the local news station & tell them what happened.
Good Luck and I pray that your baby will be happy & healthy despite this disgusting mistake.

Yes, you can sue them. It's unlikely (VERY unlikely) that your kid could get HIV from breast milk... so you can calm yourself a bit about that. You have every right to be angry.

Sue their pants off. Duh. Oh, and don't sign ONE DANG THING until you talk to a lawyer. Call one immediately.

$40 gift cards? Please tell me you're joking!!! THEY GAVE YOUR CHILD TO THE WRONG WOMAN! What if she had left, what if something would've happened to him? You need to SUE... like yesterday. If not just for yourself, then for the next person that make such an egregious error with and kills them.