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October 31, 2017

Appellate Division Finds That a Mother Cannot Sue for Her Pain and Suffering if Infant Is Injured in Utero but Born Alive, Unless She Sustained an Independent Injury

In Brashaw v. Cohen, 2017 NY Slip Op 7068 (4th Dep't 2017), the plaintiffs, parents of an infant who died shortly after birth, commenced a medical malpractice action seeking to recover damages for emotional injuries sustained as a result of the defendants' alleged malpractice in providing medical treatment during the pregnancy. The trial court granted the defendants' motion for summary judgment dismissing the complaint, and the Appellate Division affirmed.

The mother had a history of difficult pregnancies, and after approximately 20 weeks of pregnancy, was diagnosed with an urgent medical issue and admitted to the hospital. Three days later, she delivered the decedent infant. Plaintiffs' physicians had warned them that the infant would not survive because his lungs were not fully developed. The infant died an hour after delivery. During this one-hour period, the infant registered a slow heartbeat, was breathing, and could grab his father's finger. However, his skin remained pale blue, he did not cry, and he did not move his arms and legs. The mother did not sustain any injury independent of her child during her pregnancy or as a result of the delivery.

The plaintiffs did not appeal the dismissal of the father's claims, but argued that the mother could bring an action to recover damages for emotional injuries. The plaintiffs asserted that the limits on a recovery for a wrongful death claim based upon the infant-decedent's short life would not adequately address the wrongdoing insofar as damages in wrongful death claims are generally limited to economic expenses and conscious pain and suffering; these types of damages would have been difficult to establish in a wrongful death claim where the infant died only an hour after delivery.

On appeal, the Fourth Department rejected plaintiffs' argument that the facts of this case fell within a narrow exception created by the Court of Appeals' decision in Broadnax. In Broadnax v. Gonzalez, the Court of Appeals allowed a mother to bring a medical malpractice action to recover damages for emotional injuries where she did not sustain an independent injury and the alleged wrongdoing resulted in a miscarriage or stillbirth, as there was no other viable cause of action to address the alleged wrongdoing. 2 N.Y.3d 148 (2004). In Sheppard-Mobley v. King, however, the Court of Appeals declined to expand that doctrine to include those cases where the injured infant was born alive and thus capable of pursuing his or her own legal remedies. 4 N.Y.3d 627 (2005).

Plaintiffs argued that the premature delivery and brief lifespan of the infant-decedent in this case fell within the parameters of Broadnax in that a wrongful death action was not a viable cause of action to address the alleged wrongdoing. The Fourth Department, however, found that the limitations of a potential wrongful death cause of action in the infant decedent's name was an inherent aspect of wrongful death actions rather than a specific problem with prenatal medical malpractice actions. The Fourth Department reaffirmed the principal that a mother cannot bring an action based upon a claim that her infant is injured in utero as a result of medical malpractice but is born alive unless the mother sustained an injury independent of the child and as a result of the alleged malpractice. The Court acknowledged that the infant may commence an action seeking damages for his or her injuries, but held that the mother must have sustained an independent injury to recover damages for emotional injuries arising from medical malpractice that results in miscarriage or stillbirth.

The Fourth Department noted that the decision to allow a plaintiff to recover damages for emotional injuries under such circumstances was a matter to be addressed by the New York State Legislature.

This case is important because it shows that courts are not willing to expand the principles set forth in Broadnax in order to create a separate theory of liability. As the Court of Appeals appeared to recognize in Sheppard-Mobley, an expansion of liability in this area has the tendency to create a slippery slope that will lead to a proliferation in medical malpractice actions.

If you require further information regarding the content of this alert, please contact Thomas J. Drury, Chair of our Professional Liability Practice Area, at (716) 858-3845 or


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