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Liability Widens for Fetal Death Caused by Doctors

By John Caher
April 23, 2004

Overturning a 19-year-old precedent, the Court of Appeals of New York held on April 1 that a woman may recover damages for emotional distress for medical malpractice that causes a miscarriage or stillbirth, even if she personally suffers no physical injury. Broadnax v. Gonzalez (No. 30) and Fahey v. Canino (No. 31), 2004 NY LEXIS 603 (4/1/04). In a 6-1 opinion, the court abandoned the rule it adopted in Tebbutt v. Virostek, 65 NY2d 931 (1985), which set a precedent that a mother could recover for emotional injuries related to the stillbirth of her child only if she suffered an independent physical injury due to the negligence of the attending physician.

In an opinion by Judge Albert M. Rosenblatt, the Court of Appeals ruled 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 court said its decision has no impact on a 1969 ruling that bars wrongful death actions under similar circumstances. Endresz v. Friedberg, 24 NY2d 478

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