Women can recover for emotional distress in miscarriage cases.

Overturning 19 years of precedent, the New York Court of Appeals recently ruled that two women who claimed medical error led to the deaths of their unborn children could recover damages for their emotional distress. (Broadnax v. Gonzalez, No. 02426, 2004 WL 635298 (N.Y. Apr. 1, 2004).)

The decision not only brings New York in line with most states, which allow expectant parents to recover damages for a negligently caused miscarriage or stillbirth; it sets new precedent by permitting expectant mothers to recover for their own emotional distress related to the event. Expectant fathers can now bring a claim for loss of consortium.

Most states let parents bring wrongful death claims in these cases, said Margaret Jasper of South Salem, New York, who argued the case for the plaintiffs. "Some states have a cutoff at viability', and a minority allow claims [when a ferns is miscarried] before viability,. But in a wrongful death action, the damages are for pecuniary losses, which differ from emotional distress losses."

Writing for the 6-1 majority, Judge Albert Rosenblatt noted that in 1985 the court had 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 ferns and not a normal incident of childbirth." (Tebbutt v. Virostek, 483 N.E.2d 1142 (N.Y. 1985).)

That decision reflected fire court's reasoning at the time: that a defendant physician whose negligence leads to a fetal death violates no duty to the expectant mother because the alleged misconduct injures only the fetus. But, Rosenblatt wrote, it created a "logical gap in which the fetus is consigned to a state of 'juridical limbo'" when Tebbutt is considered along with earlier decisions by the court that defined the rights of plaintiffs to recover for pregnancy-related torts.

"Infants who are injured in the womb and survive the pregnancy may maintain causes of action against tortfeasors responsible for their injuries.... Further, a pregnant mother may sue for any injury she suffers independently. A parent, however, cannot bring a cause of action for wrongful death when a pregnancy terminates in 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," Rosenblatt wrote.

The court's decision addressed two cases that had been consolidated for appeal. In 1994, Karen Broadnax was pregnant when her water broke and she noticed a large amount of blood in the amniotic fluid. She called her nurse-midwife, who told her to go to a local birth center in Westchester County. There, the midwife confirmed the bleeding and called Broadnax's obstetrician, Frederick Gonzalez. He sent her to a hospital in Manhattan rather than to one right across the street.

Broadnax arrived at the hospital about 30 minutes latex: Although Gonzalez detected fetal heart decelerations, he spent another half hour conducting additional tests before performing an emergency cesarean section and delivering a full-term stillborn girl.

In 1999, Debra Ann Fahey, pregnant with twins, called her obstetrician, Anthony Canino, complaining of cramping and nausea. Based on an ultrasound examination, Canino concluded that one twin was pressing on Fahey's sciatic nerve and sent her home. Two days later, her pain and nausea intensified. Canino's partner, Patrick Ruggiero, confirmed the earlier diagnosis and again sent her home.

Two hours later, Fahey delivered one of the 18-week-old fetuses. With the umbilical cord still connecting it to her, Fahey was rushed to the hospital, where she delivered the second twin. Neither survived.

The Broadnaxes, represented by Jasper, and the Faheys, represented by Patricia Cummings of Binghamton, sued the women's medical caregivers, alleging that their negligence led to the miscarriages. In both cases, the trial courts granted summary judgment for the defendants, citing Tebbutt. Those rulings were affirmed on appeal. (Mother Denied Recovery in N.Y. Miscarriage Case, TRIAL, July 2003, at 89.)

Reversing, the state's high court rejected the defendants' argument that their alleged misconduct injured only the fetuses and that they therefore did not violate any duty of care to the expectant mothers.

"Defendants' reasoning is tortured," Rosenblatt wrote in the decision. "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."

Jasper noted that the court of appeals tailored the decision to limit recovery to expectant mothers. The opinion explicitly rejects emotional distress claims brought by expectant fathers and confirms earlier decisions barring wrongful death actions for women's miscarriages or stillbirths.

"The court was trying to be very careful," Jasper said. "There was some argument among the judges about allowing emotional distress claims by the father but they ultimately decided that the duty from the physician runs only to the mother."

However, now that the mother can recover for her emotional distress, Jasper said, the father has a basis on which to attach a loss-of-consortium claim. "When there was no recovery allowed, there could be no loss-of-consortium damages for the father," Jasper said.

The cases will now return to lower courts for trial, said Jasper. "It's been almost 10 years" since Broadnax was fled, she said. "Now that the law has changed, there will finally be a trial."