The Supreme Court of the State of New York Appellate Division, Fourth Judicial Department (“New York Appellate Court”) stated in its Memorandum and Decision dated October 6, 2017 that in a New York medical malpractice action brought by the mother where an infant is injured in utero as a result of medical malpractice and the infant is born alive, the mother cannot recover damages for emotional injuries without having sustained an independent injury as a result of the alleged malpractice.
In the case the New York Appellate Court was deciding, the plaintiffs were the parents of a baby who died shortly after birth. Their New York medical malpractice lawsuit sought to recover damages for the emotional injuries they sustained allegedly as a result of the medical malpractice defendant’s negligence in providing medical treatment while the mother was pregnant.
The Underlying Facts
In 2011, the mother, who had a pre-existing history of difficult pregnancies, became pregnant and was treated by the defendant physician. After approximately 20 weeks of pregnancy, the defendant physician diagnosed the mother as having an incompetent cervix and admitted the mother to the hospital. Three days later, the mother delivered her baby and was advised by physicians at the hospital that the baby would not survive because his lungs were not fully developed. About one hour after his delivery, the baby died.
Before the baby died, he was breathing but had a slow heartbeat. The baby could grab his father’s finger but his skin remained pale blue, he did not cry, and he did not move his arms and legs. The parties to the New York medical malpractice lawsuit agreed that the mother did not sustain an independent injury during the course of her pregnancy or during the delivery.
The defendant filed his motion for summary judgment, which the trial court granted (on appeal, the plaintiff did not dispute that summary judgment was properly granted to the defendant on the father’s medical malpractice claim). The mother appealed the granting of summary judgment to the New York medical malpractice defendant.
The New York Appellate Court stated that prior case law established that where an infant is injured in utero as a result of medical malpractice and is born alive, the mother cannot recover damages for emotional injuries without having sustained an independent injury as a result of the alleged malpractice, but the infant may commence an action seeking damages for his or her injuries. Prior New York appellate court decisions have held that absent an independent injury, the mother can recover damages for emotional injuries arising from medical malpractice that causes an in utero injury only if that malpractice results in miscarriage or stillbirth (the New York Court of Appeals allowed a mother to bring an action to recover damages for emotional injuries “where otherwise none would be available to redress the wrongdoing that resulted in a miscarriage or stillbirth,” but in a later New York Court of Appeals case, the Court of Appeals expressly declined to expand that doctrine to a situation where the injured infant was born alive and thus was capable of bringing his or her own medical malpractice action).
Hence, in the present case, the New York Appellate Court held that insofar as the plaintiffs contend that the mother should be able to recover damages for emotional injuries because a wrongful death cause of action would not have a viable accompanying cause of action for conscious pain and suffering, this is an inherent aspect of wrongful death actions rather than a specific problem with prenatal medical malpractice actions, and whether to allow a plaintiff to recover damages for emotional injuries under such circumstances is a matter for the New York Legislature.
Source Brashaw v. Cohen, 1121 CA 16-02339
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