A Surprising New York Holding Says a Doctor Has No Duty to a Mother Not to Injure Her Fetus

By ANTHONY J. SEBOK


anthony.sebok@brooklaw.edu
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Monday, May. 16, 2005

Does a doctor owe a duty to an expectant mother not to injure her fetus? One would think that the answer is obviously yes. But last week, the New York Court of Appeals - the state's highest court - said no.

The case was Jo'Ell Sheppard-Mobley v. Leslie King, et. al.. In this column, I will both explain its logic, and discuss its shortcomings.

The Facts of the Sheppard Case

The relevant events began when Karen Sheppard suffered lower abdominal discomfort. She sought treatment from Dr. Leslie King, who was employed at Obstetrical & Gynecological Services of Rockville Centre.

King informed Sheppard that she was pregnant, and that she had large fibroids (benign tumors) in her uterus. Because the fibroids made the pregnancy risky, Sheppard - on the advice of King and another doctor, Ira Spector - elected to abort the fetus by means of a drug, methotrexate.

The methotrexate was administered in two stages, one at week seven and the other at week eight of Sheppard's pregnancy. After she received the methotrexate, Sheppard's sonogram - performed by Dr. Sheila Kumari-Subaiya - indicated that there was no fetal heartbeat.

Nevertheless, in her twenty-eighth week of pregnancy, Sheppard learned that she was still carrying a fetus after all: The methotrexate had not worked and the sonogram had not been accurate. Moreover, the fetus had been almost certainly deformed by the methotrexate.

Sheppard considered obtaining a late-term abortion but elected to have the child instead. Her daughter, Jo'Ell, was born with severe congenital impairments.

Sheppard's Suit, and the New York Courts' Decisions

Sheppard sued Drs. King, Spector, and Kumari-Subaiya -- as well as their partnerships -- on behalf of herself, Jo'Ell, and Jo'Ell's father.

Some of the claims were withdrawn by stipulation of the parties; the trial court dismissed the rest. However, the Appellate Division reinstated almost all of the dismissed claims.

Among these, was Sheppard's claim for negligent infliction of emotional distress (NEID). She contends that as a result of the defendants' negligence, she suffered emotional distress when she discovered that Jo'Ell was deformed. The defendants argued, before the Court of Appeals, that this claim ought to be dismissed.

To evaluate the defendants' argument, it's necessary to explain how New York NIED law changed last year.

New York Law on Negligent Infliction of Emotional Distress

In New York, a person who is herself injured by the defendant's negligence can, of course, sue for emotional distress. But here, Sheppard wasn't injured by the alleged negligence; Jo'Ell was.

Under New York law, as it stood until 2004, Sheppard's own lack of injury would have meant that to sue for NIED, she would have had to prove three things:

First, she would have had to show that she was a close relative; she was.

Second, she would have had to show that she witnessed the injury when it happened; but she didn't, for Jo'Ell was injured while still in the womb. (Interestingly, however, a correct sonogram might have allowed Sheppard to fulfill this requirement - depending on how the courts define "witness" when the injury is in utero.)

Third, she would have had to show and that she was in the "zone of danger" next to the person who was physically injured - Jo'Ell. But here, she was not, apparently, in danger.

Two Crucial Court of Appeals Decisions that Changed New York NIED Law

In 2004, however, the Court of Appeals expanded New York's rules on NIED in two cases decided on the same day, Broadnax v. Gonzalez and Fahey v. Canino. Broadnax/Fahey involved once-pregnant women who brought NIED claims, alleging their physicians' negligence caused them to miscarry.

The women themselves had suffered no physical injury so - under the law as it then stood - their suits would have failed. They did not witness the harm that occurred in their wombs, nor were they in the zone of danger. (Nor could they have brought wrongful death actions: New York does not recognize wrongful death in cases of miscarriage or stillbirth.)

The New York Court of Appeals found this result intolerable. Plainly, a pregnant woman who miscarries a baby she is hoping to carry to term, will suffer emotional distress. Plainly, if the miscarriage is the result of medical negligence, the emotional distress will be, too.

As the Court recognized, women in this situation ought to be able to sue for NIED. If they could not, their doctors' negligence would go unaddressed, and the doctors would never be held accountable for their wrongs to the pregnant women - for the baby, who did not exist, would not be able to sue. (No suit may be brought on behalf of a fetus's estate.)

Does the Broadnax/Fahey Logic Help Sheppard, Too? Why the Court Said No.

Arguably, the same logic helps Sheppard: If a mother can sue (despite lack of physical injury) for emotional distress due to a miscarriage, one might argue, surely a mother should be able to sue (despite lack of physical injury) when her child is born with deformities. For many women, having a child with preventable deformities may be more traumatic and distressing than miscarrying.

But the New York Court of Appeals thought the two cases were different. When a miscarriage occurs, it reasoned, the mother suffers emotional distress as a consequence of the death of her fetus. But while a baby is deformed, it said, the mother suffers emotional distress as a consequence of the fetus being deformed, but living.

Why does this distinction make a difference? The only reason the Court of Appeals gave was that a medical malpractice suit may be brought on behalf of the baby with deformities (that is why, here, Jo'Ell had her own claim), but not on behalf of the miscarried fetus.

The trial judge had wrongly understood Jo'Ell's suit against the defendants to have been for "wrongful life," a cause of action that is rejected by New York. But, argued the Court of Appeals, Jo'Ell could have sued based on simple negligence.

Put another way, Jo'Ell didn't have to argue "If not for your negligence, I would never have been born" (though that might have been true). She could argue, instead, simply that the allegedly negligent methotrexate treatment caused her to have deformities she would not otherwise have had.

The Court of Appeals also claimed that Sheppard could have sued for emotional distress caused directly to her as a result of the botched methotrexate treatment and the botched sonogram. Each of the doctors who provided these treatments, if they acted negligently, breached a duty to her as a patient which directly caused her an injury.

She did not have to bring a more tenuous "bystander" claim, in other words, because she had a different, more direct status: that of a patient. The baby's father, for instance, could not bring such a suit, but she could.

In the end, the New York Court of Appeals kept the door open to Sheppard and her daughter to rewrite their complaints and sue again. The amended complaint will doubtless include a malpractice claim by Sheppard that seeks compensation for emotional damages, and a malpractice claim by Jo'Ell that seeks to compensate her for having to live with her deformities.

Why Didn't the Court Expand NIED to Cover Cases Such as Sheppard's?

Why did the court insist on limiting the reach of Broadnax/Fahey?

After all, if it had opted to broaden its ruling, it would have been in good company: Other states, such as New Jersey, allow parents to sue for NIED in a broad range of cases involving "bystander" injuries. A pregnant woman who suffers emotional distress when her fetus is harmed is the most foreseeable sort of "bystander"--her emotional distress seems like an obvious complement to the fetus's physical injury.

Moreover, the most honest characterization of what happened to Sheppard - if the defendants were negligent - is that they negligently caused her emotional distress. It seems to me that at least part of her emotional distress arose from the shock she felt as discovering that the steps she took--under the guidance of her physicians--caused her own child harm. This emotional distress seems both very real to me and very much not about Sheppard's own injury, but, rather, about the injury caused to her child.

So why can't she bring a NIED claim?

One answer to why the Court clung to its NIED limits, could be simply that the court really meant what it said in Broadnax/Fahey: It could not tolerate medical malpractice towards pregnant women for which there was no remedy. And when the result of malpractice was miscarriage, that was the situation.

But that situation was largely of the Court's own making. It could have allowed wrongful death claims on behalf of parents in cases of negligently caused miscarriage or stillbirths - as many other states do. It could have adopted broader NIED rules in the first place.

It seems that the Court's real intent was to try to have its cake and eat it too: To keep NIED narrow, but also avoid dramatic injustice. It did so, but at the cost of intellectual honesty: The truth seems to be that, if there was indeed negligence towards Jo'Ell, then it caused Sheppard emotional distress, regardless of whether Sheppard was physically harmed. The law ought to say so.


Anthony J. Sebok, a FindLaw columnist, is a Professor at Brooklyn Law School. His other columns on tort issues may be found in the archive of his columns on this site.