N.Y. Court of Appeals allows mothers to recover damages for lost fetuses

September 1, 2004

A recent ruling by the N.Y. Court of Appeals leaves obstetricians in the state vulnerable to liability claims brought by expectant mothers who experience stillbirth or miscarriage. The decision reverses a nearly 20-year-old precedent that had protected obstetricians from being sued by an expectant mother for emotional distress unless she could demonstrate a separate and distinct injury from the lost fetus.

In reviewing 2 cases—one in which a placental abruption caused a fetus to die before delivery and another that claimed an obstetrician's failure to diagnose and treat a cervical condition resulted in the premature expulsion of a fetus—the high court acknowledged that it could no longer stand by its own 1985 decision. It found that medical professionals owed a duty to both the developing fetus and the expectant mother. Based on this reasoning, the high court held that even without an independent injury, "an expectant mother may seek damages for emotional distress based on medical malpractice resulting in miscarriage or stillbirth," reported Health Law Digest (6/04).