HLD, v. 32, n. 6 (June 2004)
New York High Court Holds Expectant Mother May Recover Emotional
Distress Damages For Loss Of Fetus
An expectant mother may recover emotional distress damages for
medical malpractice that causes her to miscarry or have a stillborn fetus, the
New York Court of Appeals held April 1. The high court reversed its earlier
position that such claims were barred unless the expectant mother showed she
suffered an injury separate and distinct from the fetus.
Karen Broadnax and her husband sued obstetrician Frederick Gonzalez
and certified nurse-midwife Georgia Rose for medical malpractice and related
claims after Karen delivered a full-term stillborn baby girl. The Broadnaxes
had gone to a birthing center when Karen started bleeding. Several hours later,
Gonzalez performed a cesarean section. Autopsy reports indicated that the fetus
died before delivery because of a placental abruption.
The trial court granted the defense's motion for judgment as a
matter of law. The appeals court affirmed, holding Karen was barred from recovering
damages for emotional or psychological harm stemming from the stillbirth because
she failed to show she suffered a distinct physical injury apart from the fetus
as required under Tebbutt v. Virostek, 65 N.Y.2d 931 (1985).
In a second case involving the same issue, Debra Ann Fahey and
her husband sued obstetrician Dr. Anthony C. Canino and his medical practice
after Debra prematurely delivered twins, neither of whom survived. The Faheys
alleged that Canino negligently failed to diagnose and treat a cervical condition
that promoted premature expulsion of the fetus. The trial court granted the
defense's motion for summary judgment. The appeals court affirmed again citing
In a consolidated ruling, the New York Court of Appeals reversed
both cases and overturned the Tebbutt decision. Acknowledging its long-standing
reluctance to recognize causes of action for negligent infliction of emotional
distress, particularly where an independent physical injury is lacking, the
high court nonetheless said it could no longer defend Tebbutt's logic
and reasoning. "Tebbutt engendered a peculiar result: it exposed medical
caregivers to malpractice liability for in utero injuries when the fetus survived,
but immunized them against any liability when their malpractice caused a miscarriage
or stillbirth," the high court wrote.
The high court was not persuaded by the defense's argument that
the physicians did not violate any duty to the expectant mother. Medical professionals
not only owe a duty to the developing fetus, but also to the expectant mother
who is the patient, said the high court. Thus, the high court held that, even
in the absence of an independent injury, an expectant mother may seek damages
for emotional distress based on medical malpractice resulting in miscarriage
A dissenting opinion found the majority's reasoning for overruling
Tebbutt insufficient. In the dissent's view, Tebbutt established
a workable bright-line rule "to limit the scope of duty in obstetrical malpractice."
Broadnax v. Gonzalez, Nos. 30 and 31 (N.Y. April 1, 2004).