Mother May Not Recover Emotional Damages for Medical Malpractice During Pregnancy, Where Infant is Born Alive But Dies Shortly Thereafter
December, 2005
A New York Supreme Court recently held in Warnock v. Duello, 803 N.Y.S.2d 422, 2005 N.Y. Slip Op. 25476 (Sup.Ct. St. Lawrence Cty. 2005), that a mother may not recover in medical malpractice against a physician and hospital for emotional distress the mother suffered as a result of injury to her fetus, since the infant was born alive and lived for two hours before dying. The Warnock court concluded that application of the narrow rule announced by the Court of Appeals decision in Broadnax v. Gonzalez, 2 N.Y.3d 148, 809 N.E.2d 645, 777 N.Y.S.2d 416 (2004), and reiterated in Sheppard-Mobley v. King, 4 N.Y.3d 627, 830 N.E.2d 301, 797 N.Y.S.2d 403 (2005), precluded it from making an exception to find a legally cognizable cause of action for emotional harm of a mother caused by an injury to her fetus when the infant is born alive, regardless of the brevity of duration of the infant’s life. However, in its dicta, the Warnock court echoed recent debates in this area by hinting at its support for a more expansive interpretation of the rule.
The Warnock court’s dicta highlights the recent arguments being advanced by the plaintiffs’ bar - i.e., that the rationale in Sheppard-Mobley should be interpreted to lead to the conclusion that a mother should have a claim for her own emotional distress where a fetus is injured in utero, is born alive, but dies shortly after birth. 803 N.Y.S.2d at 423; see Moore and Gaier, “Medical Malpractice,” (N.Y.L.J., June 7, 2005, page 3, col.1). The basis of this argument is the concept that, in circumstances where it cannot be proven that an infant experienced some level of awareness during its short life, there can be no claim for conscious pain and suffering by the infant, therefore, in these particular circumstances, Broadnax/Sheppard-Mobley should be extended to permit a cause of action on behalf of the mother for her own emotional distress.
The issue of whether, and under what circumstances, a mother may recover for emotional distress for injuries caused to her fetus in utero has generated some confusion and controversy in light of the Court of Appeals decision in Broadnax, 2 N.Y.3d 148, 809 N.E.2d 645, 777 N.Y.S.2d 416. The long-standing general rule in New York with regard to prenatal medical treatment recognized that medical professionals owe a separate duty of care to the mother and the developing fetus. Woods v. Lancet, 303 N.Y.349, 357; 102 N.E.2d 69 (1951). However, prior to Broadnax, a mother was prohibited from recovering for emotional injuries where medical malpractice during her pregnancy resulted in a miscarriage or stillbirth if the mother could not adduce that she suffered a physical injury that was both distinct from that suffered by the fetus, and not a normal incident of childbirth. Tebbutt v. Virostek, 65 N.Y.2d 931, 493 N.Y.S.2d 1010, 483 N.E.2d 1142 (1985).
In abrogating the 20-year-old precedent, Broadnax held that medical malpractice resulting in miscarriage or stillbirth of a fetus violates the duty of care to the expectant mother, entitling her to damages for emotional distress, even in the absence of an independent, legally cognizable physical injury to the mother distinct from the fetus. 2 N.Y.3d at 155, 809 N.E.2d 645, 777 N.Y.S.2d 416. The Court of Appeals concluded that Tebbutt engendered a “peculiar result” in that 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.” 2 N.Y.3d at 154, 809 N.E.2d 645, 777 N.Y.S.2d 416, 809 N.E.2d 645. Broadnax intended to rectify a “logical gap” created by Tebbutt since, in the circumstances of either miscarriage or stillbirth, both the fetus and the mother were prohibited from seeking to recover for emotional injuries. The Court of Appeals reasoned that if “the fetus cannot bring suit, it must follow in the eyes of the law that any injury here was done to the mother.” Id. at 156, 777 N.Y.S.2d 416, 809 N.E.2d 645.
Confusion in the application of Broadnax followed, stemming from the fact that Broadnax made no mention of a live birth, utilizing only the phrase “miscarriage or stillbirth” in its holding. Id. at 151, 155, 777 N.Y.S.2d 416, 809 N.E.2d 645. Some cases concluded that the court’s holding in Broadnax was limited to circumstances involving miscarriages or stillbirths, based on the court’s explicit language. See, eg,. Kotler v. Swersky, 10 A.D.3d 350, 351, 352, 781 N.Y.S.2d 56 (2d Dep't 2004) (applying Broadnax to case involving stillbirth). By contrast, in Stuart v. New York City Health and Hospitals Corp., 7 Misc.3d 225, 792 N.Y.S.2d 794 (Sup.Ct. Queens Cty. 2005), plaintiffs alleged that the defendant physicians negligently provided medical care to the mother during her pregnancy and, as a result, her child was born with brain damage and cerebral palsy. Permitting plaintiffs to amend their complaint to add a cause of action on behalf of the mother, the court interpreted Broadnax as an extension of “the duty of care medical professionals owe to the expectant mother, as a patient, whose health is linked to the fetus.” Id. at 228, 792 N.Y.S.2d at 797.
Similarly, until its recent reversal by the Court of Appeals, in Sheppard-Mobley v. King, 4 N.Y.3d 627, 830 N.E.2d 301, 797 N.Y.S.2d 403 (2005), the Second Department expanded upon the rule articulated in Broadnax to authorize recovery for a mother’s emotional distress not only when a fetus dies in utero, but also in cases where an infant is born severely impaired as a result of medical malpractice inflicted upon the fetus in utero, reasoning that “[t]he duty is not vitiated by virtue of the live birth of a child in a severely impaired state.”
In reversing the Second Department, the Court of Appeals in Sheppard-Mobley made clear that the Second Department improperly extended the holding in Broadnax, reinforcing that Broadnax was to be narrowly construed to only permit a cause of action for emotional distress on behalf of mothers where malpractice results in stillbirth or miscarriage. Id. at 637, 830 N.E.2d 301, 797 N.Y.S.2d 403. In so doing, the Sheppard-Mobley court reinforced the long-standing holding in Woods v. Lancet, that a fetus born alive still has a medical malpractice cause of action for physical injuries inflicted in utero. Id. at 636, 830 N.E.2d 301, 797 N.Y.S.2d 403.
The Warnock court concluded that, under Broadnax/Sheppard-Mobley, it had “no choice” but to hold that the mother failed to state a legally cognizable cause of action for emotional harm caused by an injury to her fetus, resulting in a live birth. However, the Warnock court expressed concern regarding what it characterized as a “further peculiar result” and “troublesome” anomaly from strict application of Broadnax to its particular facts .
Learning Point:
The Warnock court’s dicta suggests the court’s support for arguments being advanced by the plaintiffs’ bar as of late -- that in circumstances where it cannot be proven that an infant experienced some level of awareness during its short life, there can be no claim for conscious pain and suffering, and, therefore, Sheppard-Mobley should be extended to permit a cause of action on behalf of the mother for her own emotional distress where a fetus is injured in utero, is born alive, but dies shortly after birth. The defense bar should anticipate challenges to the rule enunciated by Broadnax/Sheppard-Mobley from the plaintiffs’ bar with the aim of establishing more expansive interpretations to carve out exceptions to the narrow rule. •
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