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New York High Court Holds Expectant Mother May Recover Emotional Distress Damages For Loss Of Fetus


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 Tebbutt.

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 or stillbirth.

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).

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