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EMOTIONAL DISTRESS FOR LOSS OF FETUS IN NEW YORK? THE COURT
CHANGES THE RULES.
Lauren Mazarra, Esquire & Henry Achiron, Esquire
In New York, there have been many recent changes in the case law concerning the ability of a plaintiff to recover for emotional distress due to the loss of a fetus in a general negligence or medical malpractice action. The law in this regard will typically turn on whether the plaintiff has suffered an independent personal injury in addition to the loss of the fetus. The case law mentioned below will not apply where a plaintiff loses a fetus in an automobile accident, since New York's Insurance Law specifically delineates the loss of a fetus as a "serious injury" under its threshold law (See Insurance Law § 5102 (5), Doyle v.Van Pelt).
In a recent matter, a plaintiff claimed that she was walking in a supermarket near a self serve coffee display, when she slipped and fell on coffee beans, landing on her stomach. The plaintiff was two months pregnant at the time and claims that as a result of the incident, she suffered a traumatically induced miscarriage. Plaintiff did not sustain any other personal injuries as a result of the incident. Plaintiff brought suit against the supermarket, alleging only emotional distress due to the loss of the fetus. She did not claim any physical injury in her complaint and bill of particulars. Following the completion of discovery, we moved for summary judgment on behalf of the supermarket.
At the time the action was filed, recovery for such psychological trauma was governed by Tebutt v. Virostek, which held that a mother could not recover for emotional and psychic harm as the result of the death of a fetus absent independent physical injuries distinct from the injury to the fetus. For almost 20 years, this remained the prevailing case law in New York.
However, in 2004, the Court of Appeals was called upon to re-examine its prior rulings concerning a mother's ability to recover for purely psychological injuries where the sole physical injury was suffered by the fetus and not the mother. In Broadnax v. Gonzalez and Fahey v. Canino, the Court reversed its course and 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's ruling was further clarified in early 2005 by Santos v. St. Vincent's Hospital and Medical Center of New York. The Santos Court noted that the "purpose of Broadnax was to extend the duty of care medical professionals owe to the expectant mother, as a patient, whose health is linked to the fetus." In the case law which has followed Broadnax, the Courts have appeared to focus on the fiduciary relationship between the expectant mother and the doctor, rather than the fact that the mother did not suffer a separate physical injury. At this time, a plaintiff who alleges a miscarriage due to a slip and fall at a premises, still must claim physical injuries, separate from the loss of the fetus, to maintain an action based on emotional distress.
In the action against the supermarket mentioned above, the Court ultimately granted summary judgment based on the above mentioned case law, as well as due to the absence of valid medical testimony concerning whether the miscarriage was actually caused by the slip and fall accident. It is likely that the Court of Appeals will continue to examine this issue in the coming months and years. When faced with such a case, it is important to press the plaintiff for admissible expert opinion concerning the cause of the miscarriage.
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