Karen Broadnax et al.,
Appellants,
v.
Frederick A. Gonzalez, et al.,
Respondents.
Debra Ann Fahey et al.,
Appellants,
v.
Anthony C. Canino et al.,
Respondents.
2004 NY Int. 38
These two cases call upon us to revisit a question we
last addressed in Tebbutt v Virostek (, 65 NY2d 931 1985]):
whether, absent a showing of independent physical injury to her,
a mother may recover damages for emotional harm when medical
malpractice causes a miscarriage or stillbirth.
Broadnax While pregnant, plaintiff Karen Broadnax was under the
care of defendants Frederick Gonzalez, an obstetrician, and
Georgia Rose, a certified nurse-midwife. On September 24, 1994,
at 1:45 AM, Karen telephoned Rose to say that her water had
broken and that she had expelled a large amount of blood. Rose
advised Karen and her husband, Jeffrey, to meet her at defendant
Westchester Birth Center. When she arrived there, at
approximately 3:00 AM, Karen again experienced vaginal bleeding.
She and her husband asked Rose whether they should go across the
street to St. John's Riverside Hospital for immediate treatment.
Rose telephoned Dr. Gonzalez, who directed that Karen be
transported to the Columbia Presbyterian Allen Pavilion in
Manhattan. Accompanied by Rose, the Broadnaxes reached the Allen
Pavilion at about 3:45 AM. Dr. Gonzalez had not yet arrived. In
his absence, however, Rose did not contact the on-call doctor.
About 45 minutes later -- almost two hours after Karen arrived at
the Westchester Birth Center -- Dr. Gonzalez examined Karen and
detected fetal heart rate decelerations. Rather than performing
an emergency cesarean section, Dr. Gonzalez conducted a vaginal
and pelvic examination. He then performed a sonogram, but could
no longer detect a fetal heartbeat. Approximately half an hour
later, around 5:15 AM, Dr. Gonzalez undertook a cesarean section,
The Broadnaxes sued defendants, alleging that their
failure to recognize and properly treat Karen's placental
abruption supported a cause of action for medical malpractice and
related claims. At the close of plaintiffs' case, Supreme Court
granted defendants' motion pursuant to CPLR 4401 for judgment as
a matter of law. The Appellate Division affirmed, holding that
Tebbutt v Virostek barred Karen from recovering damages for
emotional or psychological harm stemming from the stillbirth
because she adduced no evidence of having suffered a legally
cognizable physical injury distinct from the fetus's. B. Fahey Plaintiff Debra Ann Fahey became an obstetrical patient
of Dr. Anthony C. Canino, of defendant OBYGYN Health Care
Associates, P.C. ("OBGYN"). In August 1999, Dr. Canino informed
her that she was carrying twins. On October 28, 1999, on a
follow-up visit with Dr. Canino's partner, defendant Dr. Patrick
E. Ruggiero, Debra complained of lower abdominal pains and
cramping. Based on an ultrasound, Dr. Ruggiero concluded that
one of the twins was pressing against Debra's sciatic nerve. Two
days later, during the eighteenth week of pregnancy, Debra called
Dr. Canino and complained of increasingly intense pain along with
Other doctors later diagnosed Debra as having an
"incompetent cervix." In a subsequent pregnancy, she underwent a
cerclage procedure to suture her cervix, and thereby prevent the
premature expulsion of the fetus. Debra delivered a six-week
premature daughter the following year. The Faheys brought this action for medical malpractice
asserting that defendants negligently failed to diagnose and
treat her cervical condition. Supreme Court granted defendants'
motion for summary judgment dismissing the complaint. With one
Justice dissenting, the Appellate Division, also citing Tebbutt,
affirmed on the ground that defendants' alleged malpractice did
not cause the mother an independent physical injury. We now reverse the Appellate Division orders in both
cases.[1]
In Tebbutt v ;(, 65 NY2d 931 [1985]), we 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 fetus and not a normal
incident of childbirth. Plaintiffs assert that Tebbutt is
arbitrary and unfair, and should be overturned. Tebbutt reflected our longstanding reluctance to
recognize causes of action for negligent infliction of emotional
distress, especially in cases where the plaintiff suffered no
independent physical or economic injury. Its holding was in
keeping with our view that tort liability is not a panacea
capable of redressing every substantial wrong. Although these
concerns weigh heavily on us today, we are no longer able to
defend Tebbutt's logic or reasoning. As its dissenters recognized, the rule articulated in
Tebbutt fits uncomfortably into our tort jurisprudence. Infants
who are injured in the womb and survive the pregnancy may
maintain causes of action against tortfeasors responsible for
their injuries ( see Woods v Lancet, 303 NY 340 [1951]). 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
Injected into this common law framework, Tebbutt
engendered a peculiar result: it exposed medical caregivers to
malpractice liability for in utero injuries when the fetus
survived, but immunized them against any liability when their
malpractice caused a 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. The Endresz Court, for
example, justified its holding -- barring parents from suing in
wrongful death on behalf of an unborn child -- in part on the
assumption that parents would have some legal recourse for a
miscarriage or stillbirth resulting from negligent conduct ( id.
at 486).[2] On its own terms, Tebbutt may make formal sense, but it
created a logical gap in which the fetus is consigned to a state
of "juridical limbo" (65 2 at 933 [Jasen dissent]). It is
time to fill the gap. If the fetus cannot bring suit, "it must
follow in the eyes of the law that any injury here was done to
the mother" (65 2 at 940 [Kaye dissent]). Defendants maintain that Tebbutt states a sensible
We therefore hold 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
Our dissenting colleague has expressed concern over the
possible repercussions of what she concedes to be a "modest"
advance in our tort jurisprudence. Significantly, on this
appeal, no one from any quarter came forward to support any such
concerns. While we are well aware of the importance of
precedent, Tebbutt has failed to withstand the cold light of
Accordingly, the orders of the Appellate Division
should be reversed, with costs, and the cases remitted to Supreme
Court for further proceedings consistent with this Opinion. Nos. 30 & 31
READ, J. (DISSENTING): In 1985, we were asked whether a woman may recover
damages for emotional distress where medical malpractice causes
her to suffer a stillbirth. We concluded in Tebbutt v Virostek
(65 2 931 [1985]) that no recovery could be had in the absence
True, the new rule articulated by the majority expands
existing law sparingly. The new rule does not alter the legal
rights or status of a fetus; it does not create any new duties on
the part of a physician. Nonetheless, the majority's
justification for redefining the duty of care owed to a pregnant
woman by her medical caregivers is insufficient for me to vote to
overrule a 20-year old precedent. Stare decisis teaches that common-law decisions should
stand as precedents for guidance in cases arising in the future"
for substantial reasons of stability and legitimacy ( People v
Damiano, , 87 NY2d 477, 488 [1996] [Simons, J. concurring]). As
Judge Simons also observed, however, stare decisis is not
inflexible," and our holdings are always open to reexamination
if there is some evidence that the policy concerns underlying
them are outdated or if they have proved unworkable" ( id. at
489). Here, there is no suggestion that the Tebbutt rule is
unworkable. To the contrary, Tebbutt established a bright-line
rule, which is easily applied. The majority considers Tebbutt
outdated, however, because a narrow, but indisputably aggrieved,
class of plaintiffs" (majority opn at 6) is denied recovery,
creating a gap in the law. But this same gap was manifest in
Today's ruling exposes medical caregivers to additional
liability for the treatment they provide to pregnant women.
Juries will be asked to quantify the emotional distress that a
woman feels upon suffering a miscarriage or stillbirth.
Importantly, there is no way for us to predict or assess the
potential effect of this expansion of liability, however modest
it may appear, on the cost and availability of gynecological and
obstetrical services in New York State. No one disputes the heartache experienced by a woman
who miscarries or delivers a stillborn fetus. Nonetheless,
Tebbutt established a rational and workable rule to limit the
scope of duty in obstetrical malpractice. I see insufficient
reason to overrule Tebbutt and create a different rule.
Accordingly, I would affirm the orders of the Appellate Division. 1 We take no position on the ultimate merits of either case.
We note only that, on the records before us, the cases were
sufficient to withstand respectively a motion for a trial order
of dismissal and a motion for summary judgment. 2 In Endresz, an automobile accident both caused injuries to
the mother and resulted in her miscarrying. The Court reasoned
that no cause of action should lie in wrongful death because the
damages recoverable by the mother for her independent physical
injuries would "afford ample redress for the wrong done" ( id. at
486). 3 The treating physician owes no duty of care to the
expectant father. It of course remains true that, where the
mother has a cause of action, her husband may recover for loss of
services and consortium if the facts support such a claim. 4 In rejecting Tebbutt, we recognize that a majority of
jurisdictions permit some form of recovery for negligently caused
stillbirths or miscarriages ( see e.g. Eich v Gulf Shores, 293 Ala
95 [1974]; Summerfield v Superior Court, 144 Ariz 467 1985];
Gorke v LeClerc, 23 Conn Supp 256 [Sup Ct, Hartford County 1962];
Worgan v Greggo & Ferrara, Inc, 50 Del 258 [Sup Ct, New Castle
County 1956]; Simmons v Howard University, 323 F Supp 529 [DDC
1971]; Shirley v Bacon, 154 Ga App 203 [1980]; Seef v Sutkus, 205
Ill App 3d 312 [1st Dist 1990]; Bolin v Wingert, 764 NE2d 201
[Ind 2002]; Male v Manion, 189 Kan 143 [1962]; Mitchell v Couch,
285 SW2d 901 [Ky 1955]; State, Use of Odham v Sherman, 234 Md 179
[1964]; Wascom v American Indem Corp, 383 So2d 1037 [La App, 1
Cir 1980]; Mone v Greyhound Lines, Inc, 368 Mass 354 1975];
O'Neill v Morse, 385 Mich 130 [1971]; Verkennes v Corniea, 229
Minn 365 [1949]; Rainey v Horn, 221 Miss 269 [1954]; Strzelczyk v
Jett, 264 Mont 153 [Mo 1994]; White v Yup, 85 Nev 527 1969];
Polinquin v MacDonald, 101 NH 104 [1957]; Giardina v Bennett, 111
NJ 412 [1988]; Salazar v St Vincent Hospital, 95 NM 150 [NM App
1980]; Hopkins v McBane, 427 NW2d 85 [ND 1988]; Werling v Sandy,
17 Ohio St 3d 45 [1985]; Evans v Olson, 1976 OK 64 [1976]; Libbee
v Permanente Clinic, 268 Or 258 [1974]; Amadio v Levin, 509 Pa
199 [1985]; Presley v Newport Hospital, 117 RI 177 [1976]; Fowler
v Woodward, 244 SC 608 [1964]; Parvin v Dean, 7 SW3d 264 [Tex Ct
App 1999]; Vaillancourt v Medical Center Hospital of Vermont,
Inc, 139 Vt 138 [1980]; Moen v Hanson, 85 Wash 2d 597 [1975];
Baldwin v Butcher, 155 W Va 431 [1971]; Kwaterski v State Farm
Mut Auto Ins Co, 34 Wis 2d 14 [1967]). Unlike most of these
jurisdictions, however, we limit a mother's recovery only to
damages for the emotional distress attending a stillbirth or
miscarriage caused by medical malpractice. We do not depart from
our holding in Endresz v Friedberg (, 24 NY2d 478 [1969]) barring
wrongful death actions under these circumstances. II.
Footnotes