New York's Highest Court Narrows Previous Ruling - Mother May Not Recover Emotional Damages When Medical Malpractice During Pregnancy Causes Child to be Born with Disabilities
April, 2005
As we reported in New York CM Report of Recent Decisions – Volume 2, 2004, the New York Court of Appeals in Broadnax v. Gonzalez, 777 N.Y.S.2d 416 (2004), 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 our "Learning Point" at the conclusion of that report, we discussed the opinion of the New York Appellate Division – Second Department in Sheppard-Mobley v. King, 778 N.Y.S.2d 98 (2d Dep't 2004), which was decided right after Broadnax was handed down. Sheppard-Mobley has now itself been reviewed by the Court of Appeals, and the Second Department's expansive interpretation of Broadnax has been rejected. (2005 WL 1106014; publication pages not yet available).
Facts
In Sheppard-Mobley, the 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 live but disabled infant. 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 that 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.” (778 N.Y.S.2d at 103).
Court of Appeals Analysis
In reversing the Second Department, the Court of Appeals reasoned that “[o]ur jurisprudence has long permitted infants who suffer a legally cognizable injury in the womb and survive the pregnancy to seek damages for their injuries. We also have long permitted a pregnant mother who suffered an independent injury as a result of medical malpractice to bring suit for her own personal injuries.” Prior to Broadnax, therefore, New York's “tort jurisprudence in this area created a peculiar result in that it exposed medical care givers 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.” Broadnax was thus intended to rectify the injustice of “categorically denying recovery to a narrow, but indisputably aggrieved, class of plaintiffs.” In Sheppard-Mobley, the Court of Appeals made plain that it intended Broadnax to be narrowly applied and limited strictly to its facts:
[O]ur holding in Broadnax/Fahey is a narrow one, intended to permit a cause of action where otherwise none would be available to redress the wrongdoing that resulted in a miscarriage or stillbirth.
In the case now before us, the Appellate Division improperly extended our decision in Broadnax/Fahey by reinstating [plaintiff]'s sixth cause of action seeking damages for emotional harm based on the birth of a live infant with physical injuries. The rule pronounced in Broadnax/Fahey does not apply here, where infant plaintiff was injured in utero, but carried to term and born alive. After all, as we stated in Woods v. Lancet, a child born alive may bring a medical malpractice action for physical injuries inflicted in the womb.
Learning Point:
As we discussed in our original report, the rule established in Broadnax and now reiterated in Sheppard-Mobley, while a monumental shift in New York law, 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 this rule is still more limited than that permitted by most other jurisdictions, in that it limits a mother's recovery only to damages for emotional distress in these circumstances and does not permit the recovery of damages for wrongful death. •
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