New York's Highest Court Enlarges Malpractice Liability--Mother May Recover Emotional Damages When Medical Malpractice Causes Miscarriage Or Stillbirth
February, 2004
In a split decision, the New York Court of Appeals has held that, even absent a showing of independent physical injury to her, a mother may recover damages for emotional harm when medical malpractice causes miscarriage or stillbirth. In Broadnax v.Gonzalez, 2004 WL 635298 (April 1, 2004), the majority overturned the Court of Appeals’ opinion in Tebbutt v. Virostek, 65 N.Y.2d 931 (1985), which had held that emotional damages resulting from miscarriage or stillbirth could be recovered by a mother only where she herself suffered an independent physical injury as a result of the medical malpractice.
The Facts
Broadnax encompasses two cases – Broadnax v. Gonzalez, 759 N.Y.S.2d 499 (2d Dep’t April 28, 2003), and Fahey v. Canino, 758 N.Y.S.2d 708 (3d Dep’t April 24, 2003).
Broadnax v. Gonzalez
In Broadnax, plaintiff Karen Broadnax, while pregnant, was under the care of defendants Frederick Gonzalez, an obstetrician, and Georgia Rose, a certified nurse-midwife. On September 24, 1994, at 1:45 a.m., she called Rose to say that her water had broken and that she had expelled a large amount of blood. Rose advised plaintiff and her husband to meet her at defendant Westchester Birth Center. When plaintiff arrived there at 3:00 a.m., she was experiencing vaginal bleeding. Plaintiff and her husband asked Rose if they should go to the hospital across the street for immediate treatment; Rose telephoned defendant Dr. Gonzalez, who directed them to the Columbia Presbyterian Allen Pavilion in Manhattan. Plaintiffs and Rose arrived there at 3:45 a.m.; Dr. Gonzalez was not yet there and Rose did not advise the on-call doctor of plaintiff’s situation. When Dr. Gonzalez arrived 45 minutes later, he detected fetal heart rate decelerations and conducted a vaginal and pelvic examination. He then performed a sonogram but could no longer detect a fetal heartbeat. Approximately 30 minutes later, at 5:15 a.m., Dr. Gonzalez performed a cesarean section and delivered a full-term stillborn girl. Autopsy results showed that a placental abruption caused the infant to die before delivery.
Karen and her husband filed suit, alleging that defendants’ failure to recognize and properly treat the placental abruption constituted medical malpractice. The case went to trial and, at the close of plaintiffs’ case, the trial court granted defendants’ motion for judgment as a matter of law. Relying on Tebbutt v. Virostek, supra, the Appellate Division – Second Department affirmed, finding that plaintiff Karen could not recover damages for emotional or psychological harm stemming from the stillbirth because she herself did not suffer a legally cognizable physical injury distinct from the injury to the infant.
Fahey v. Canino
Plaintiff Debra Ann Fahey was an obstetrical patient of defendant Dr. Anthony Canino in 1999. In August, 1999, Dr. Canino informed plaintiff that she was pregnant with twins. On October 28, 1999, during a visit with defendant’s partner, defendant Dr. Patrick Ruggiero, Debra complained of lower abdominal pains and cramping. Based on an ultrasound, Dr. Ruggiero concluded that one of the twins was pressing on Debra’s sciatic nerve. Two days later, during the eighteenth week of pregnancy, Debra called Dr. Canino and complained of increasingly intense pain and nausea. Relying on Dr. Ruggiero’s examination, Dr. Canino advised her to lie down, and told her that the pain was likely related to her sciatic nerve and the nausea resulted from something she ate at lunch. Less then two hours later, while sitting on the toilet, Debra gave birth to one of the twins. Still linked to the fetus by the umbilical cord, Debra went by ambulance to the hospital where she delivered the second twin. Neither twin survived. Other doctors later diagnosed Debra as having an incompetent cervix. In a subsequent pregnancy, she underwent a procedure to suture her cervix and thus prevent the premature delivery of the fetus; she successfully delivered a daughter.
Debra and her husband sued defendants for medical malpractice, alleging that they negligently failed to diagnose and treat her cervical condition. The trial court granted defendants’ motion for summary judgment. With one judge dissenting, the Appellate Division - Third Department, relying on Tebbutt, affirmed on the ground that defendants’ alleged malpractice did not cause an independent physical injury to Debra.
Legal Analysis
The Court of Appeals majority reversed the Appellate Division orders in both cases and remanded the matters for trial. It did so because, the majority wrote, “we are no longer able to defend Tebbutt’s logic or reasoning.”
In Tebbutt, the Court of Appeals held that a mother could not recover for emotional injuries when medical malpractice caused a stillbirth or miscarriage, absent a showing that she suffered a physical injury that was both distinct from that suffered by the fetus and not a normal incident of childbirth. Looking to the dissent in Tebbutt, the majority in Broadnax found that “the rule articulated in Tebbutt fits uncomfortably into our tort jurisprudence.” The majority recognized that, in New York, it is established that (1) infants who are injured in utero and survive the pregnancy have a cause of action, (2) a pregnant woman who is independently injured has a cause of action, and (3) that a parent cannot bring a wrongful death action when a pregnancy ends in miscarriage or stillbirth. From this, the majority concluded that Tebbutt “engendered a peculiar result:”
[Tebbutt] 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. In categorically denying recovery to a narrow, but indisputably aggrieved class of plaintiffs, Tebbutt is at odds with the spirit and direction of our decisional law in this area.
The Broadnax majority thus determined that this “peculiar result” could no longer stand and adopted the Tebbutt dissent:
On its own terms, Tebbutt may make formal sense, but it created a logical gap in which the fetus is consigned to a state of “juridical limbo.” (Tebbutt, 65 N.Y.2d at 933 [Jasen dissent]). It is time to fill the gap. If the fetus cannot bring suit, “it must follow in the eyes of the law that any injury here was done to the mother.” (Tebbutt, 65 N.Y.2d at 940 [Kaye dissent]).
The majority categorically rejected defendants’ argument that Tebbutt “states a sensible rule, one worth preserving, because the defendant physician in that case did not violate a duty to the expectant mother:”
Defendants’ reasoning is tortured. Although, in treating a pregnancy, medical professionals owe a duty of care to the developing fetus …, they surely owe a duty of reasonable care to the expectant mother, who is, after all, the patient. Because the health of the mother and fetus are linked, we will not force them into legalistic pigeonholes. We therefore hold that, even in the absence of an independent injury, medical malpractice resulting in miscarriage or stillbirth should be construed as a violation of a duty of care to the expectant mother, entitling her to damages for emotional distress.
The Broadnax dissent opined that Tebbutt should be allowed to stand because “Tebbutt established a bright-line rule, which is easily applied.” By contrast, the dissent wrote,
[t]oday’s ruling exposes medical caregivers to additional liability for the treatment they provide to pregnant women. Juries will be asked to quantify the emotional distress that a woman feels upon suffering a miscarriage or stillbirth. Importantly, there is no way for us to predict or assess the potential expansions of liability, however modest it may appear, on the cost and availability of gynecological and obstetrical services in New York State. No one disputes the heartache experienced by a woman who miscarries or delivers a stillborn fetus. Nonetheless, Tebbutt established a rational and workable rule to limit the scope of duty in obstetrical malpractice.
Learning Point:
The rule established by the majority in Broadnax, while a monumental shift in New York, is in accord with the majority of jurisdictions across the country, which permit some form of recovery for negligently caused stillbirth or miscarriage. The Broadnax majority noted, however, that the recovery permitted under its rule is still more limited than that permitted by most other jurisdictions: “Unlike most of these jurisdictions, …, we limit a mother’s recovery only to damages for the emotional distress attending a stillbirth or miscarriage caused by medical malpractice. We do not depart from our holding in Endresz v. Friedberg (24 N.Y.2d 478 [1969]), barring wrongful death actions under these circumstances.”
At least one Department of the Appellate Division does not view Broadnax narrowly, however. In Sheppard-Mobley v. King, 2004 N.Y. Slip Op. 04696, 2003 WL 23531418 (June 7, 2004), an appeal pending at the time Broadnax was handed down, the Appellate Division - Second Department found that Broadnax did not permit recovery only for emotional injuries suffered by the mother as the result of stillbirth or miscarriage, but also for such injuries suffered as the result of the birth of a disabled infant. There, the plaintiff mother was advised by the defendant physicians to undergo a pharmaceutically-induced abortion because the presence of fibroid tumors in her uterus compromised her ability to carry the pregnancy to term. The plaintiff consented to the procedure, which was unsuccessful because one of the defendants did not administer the drug in the correct dosage. Defendants then recommended that plaintiff undergo a late-term surgical abortion outside New York state. Plaintiff rejected this option, ultimately carried the pregnancy to term, and gave birth to an infant who was severely disabled as a result of his exposure to the drug in question. In finding that the mother could recover for emotional injuries suffered as a result of her son’s birth in a disabled state, the Second Department determined that Broadnax could not be narrowly applied:
[W]e discern no reasonable basis to limit the Broadnax holding to cases of stillbirth and miscarriage. The duty owed to the mother remains the same whether the fetus is stillborn or is born in an impaired state. The duty is not vitiated by virtue of the live birth of a child in a severely impaired state. (2003 WL 23521418 at *5)
We will continue to monitor this changing area of the law and update our readers as new developments occur. •
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