BETTER LATE THAN NEVER: NEW YORK FINALLY CLOSES THE "GAP" IN RECOVERY PERMITTED FOR NEGLIGENT...

INTRODUCTION

New York courts, as well as courts in other states, have often been reluctant to allow recovery for negligent infliction of emotional distress ("NIED"). This reluctance stems primarily from public policy concerns. Courts have voiced three main concerns about allowing recovery for

(1) the problem of permitting legal redress for harm that is often temporary and relatively trivial; (2) the danger that claims of mental harm will be falsified or imagined; and (3) the perceived unfairness of imposing heavy and disproportionate financial burdens upon a defendant, whose conduct was only negligent, for consequences which appear remote from the "wrongful" act.1

Despite these concerns, however, the ability of an injured party to "seek redress for every substantial wrong" has been fundamental to New York's common law system,2 as well as to tort law in general.3 For this reason, the courts have allowed recovery in certain situations, regardless of the opportunities for fraud and extra litigation.4 Though New York courts have taken this position in some situations, they have often denied recovery for NIED in situations where they have felt compelled to do so by public policy.5 Competing policy interests always underlie decisions in this area, as courts struggle to strike a just balance between compensating those injured through the fault of others, and keeping liability reasonably limited and the potential for fictitious suits at a minimum.6 Therefore, courts have struggled for years to determine under what circumstances recovery will be permitted, keeping in mind notions of fundamental fairness as well as the public policy interests of keeping liability and litigation within manageable bounds.7

One historically problematic area within NIED has been prenatal medical malpractice.8 Until recently, New York law in this area was fraught with inconsistencies concerning under what circumstances recovery would be permitted.9 Furthermore, the case law in New York left a "logical gap" in the recovery it permitted to mothers when prenatal medical malpractice injured their children.10

For decades, when medical malpractice resulted in the stillbirth or miscarriage of a child, the child's mother was only able to recover for her emotional injuries if she could demonstrate that she had also suffered an independent physical injury-one that was not considered to be a normal incident of childbirth.11 This rule was premised on the court's finding that the doctor in such a situation owed a duty of care to the fetus, but not to the mother.12 This was also the rule if a mother suffered emotional injuries due to her child being born alive but with severe birth defects due to her doctor's negligence.13 Demonstrating the existence of an independent physical injury was difficult, making recovery for NIED in this area rare.14 This rule proved to "fit[] uncomfortably into [New York's] tort jurisprudence."15

At the same time that this rule was in effect, a pregnant woman had a cause of action for NIED if her doctor erroneously advised her to undergo an abortion,16 or if her doctor negligently performed an abortion.17 Further, a child born alive, but with birth defects due to another's negligence, had his or her own cause of action against the tortfeasor.18 Finally, if an automobile operator, instead of a doctor, caused the stillbirth or miscarriage of a child, the child's mother had a cause of action for NIED.19 The state of law at this time, therefore, "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."20

This "gap" often resulted in unfair outcomes since it categorically denied recovery to certain deserving plaintiffs,21 even though allowing recovery would often be more aligned with fundamental notions of fairness. Finally, in April 2004, the New York Court of Appeals closed the "gap" that has plagued this area of the law for decades and permitted the interest in redressing substantial injury to outweigh the interests in limited liability and litigation.22 In Broadnax v. Gonzalez,23 the New York Court of Appeals held 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 emotional distress."24

This Note asserts that the Broadnax decision was long overdue for New York. The decision fits comfortably with the rest of New York's jurisprudence in the NIED area because it creates a workable, bright-line rule that is sufficiently limited in scope so as not to create a significant risk of extra litigation and unlimited liability for medical practitioners. In addition, it seeks to compensate a relatively small but deserving class of plaintiffs who suffer a substantial loss due to their doctors' malpractice.

Part I of this Note will trace the history and development of NIED in New York, as well as the underlying public policy considerations that have driven its progression along the way. New York's approach to NIED in prenatal medical malpractice cases will also be examined, including the gap New York's case law left in plaintiff recovery. Part II will discuss the Court of Appeals' recent decision in Broadnax, its holding, rationale, and dissenting opinion, as well as how this case finally filled the gap in recovery allowed for NIED in prenatal malpractice cases. Part III will explain why the Broadnax decision was long overdue for New York and conclude with a discussion of its possible implications.

I. THE HISTORY AND DEVELOPMENT OF NIED IN NEW YORK

A. The Beginnings of NIED: Direct Injury

One of the first decisions in which the New York Court of Appeals recognized the right of a plaintiff to recover for NIED was Ferrara v. Galluchio.25 In this action for medical malpractice, the plaintiff sued for the emotional injuries she suffered after being told by her dermatologist that burns on her shoulder caused by x-ray treatments administered by the defendant doctor may become cancerous.26 In Ferrara, the plaintiffs emotional injuries followed from severe physical injuries caused by the defendant doctor's malpractice.27 The Court declared, "Freedom from mental disturbance is now a protected interest in [New York]."28

When a physical injury accompanies the emotional distress, or more specifically, when the emotional distress flows from a physical injury caused by the defendant's negligent conduct, most courts will allow recovery for the emotional damages by characterizing them as "parasitic" damages flowing from the physical injury.29 Courts seem to be less concerned with the risk of feigned emotional injuries when the emotional injuries result from easily verifiable physical injuries.30

After Ferrara, emotional damages accompanying a physical injury were recoverable, but the longstanding rule remained that there was no recovery for emotional injuries absent a physical injury. That rule came from Mitchell v. Rochester Railway Co.,31 in which the Court of Appeals stated: "[N]o recovery can be had for injuries sustained by fright occasioned by the negligence of another, where there is no immediate personal injury."32

This rule changed after the Court of Appeals recognized the right to recover for purely emotional injuries in Battalia v. State.33 In Battalia, a state employee improperly and insecurely placed the infant plaintiff into a chair lift.34 As a result, the infant plaintiff became "frightened and hysterical," and suffered consequential injuries.35 This case demonstrated the Court's view that when a duty is owed to the plaintiff, the defendant is responsible for all damages proximately caused by his or her negligence, including those that are purely emotional in nature.36 In recognizing a cause of action for purely emotional injuries, the Court explained that "[a]!though fraud, extra litigation and a measure of speculation are, of course, possibilities, it is no reason for a court to eschew a measure of its jurisdiction."37 Even after Battalia, however, the Court remained reluctant to permit recovery for purely emotional injuries in many situations.38

When a plaintiff seeks to recover for purely emotional injuries suffered due to another's negligence, the preliminary issue for the courts is whether the alleged tortfeasor owed the injured plaintiff a duty of care.39 In deciding whether to permit recovery for NIED, the court's analysis has typically been couched in terms of duty.40 Even when the defendant is unquestionably negligent, and emotional distress is a foreseeable consequence of that negligence, courts will sometimes limit liability by finding that no duty was owed to the plaintiff.41 This type of situation often arises when the defendant's negligence results in a physical injury to one person and as a result of that physical injury, emotional distress is caused to another.42 Though rare, there have even been instances where the Court has refused to allow recovery for NIED, even after finding that a duty was owed directly to the person seeking damages for emotional harm.43

B. Emotional Distress Suffered by Third Persons

Most courts, including those in New York, are willing to recognize the right of a plaintiff to sue for emotional damages resulting from the breach of a duty owed to him or her by the defendant.44 However, when the plaintiff suffers emotional distress as a bystander to the death or serious injury of someone else, courts have approached this as an issue of limited duty and have permitted bystander recovery in very limited circumstances.46

This problem came before the Court of Appeals in Tobin v. Grossman.46 In Tobin, the plaintiffs two-year-old son was struck by an automobile driven by the defendant, causing the child severe injuries.47 Though the plaintiff did not actually witness the accident, she heard the defendant's brakes screech and immediately went outside to observe her severely injured son lying in the road.48 The Court held that "no cause of action lies for unintended harm sustained by one, solely as a result of injuries inflicted directly upon another, regardless of the relationship and whether the one was an eyewitness to the incident which resulted in the direct injuries."49 The decision seemed to be primarily based on the Court's concern that if it was to recognize a cause of action in this situation, there would be no way to limit the scope of the liability.60 Therefore, the Court found: "It [was] enough that the law establishe[d] liability in favor of those directly or intentionally harmed."51 Though the Court recognized the reality that the loss of or injury to loved ones, particularly children, gives rise to the risk of indirect emotional harm to others, it deemed it part of "[t]he risk of living and bearing children."52

Almost twenty years after Tobin, the Court adopted a new approach to bystander liability in its landmark decision Bovsun ?. Sanperi.53 In Bovsun, the Court adopted a narrow zone-ofdanger rule that precisely circumscribed the limits of the duty owed to some bystanders who suffer emotional distress resulting from injury to another:

Where a defendant's conduct is negligent as creating an unreasonable risk of bodily harm to a plaintiff and such conduct is a substantial factor in bringing about injuries to the plaintiff in consequence of shock or fright resulting from his or her contemporaneous observation of serious physical injury or death inflicted by the defendant's conduct on a member of the plaintiffs immediate family in his or her presence, the plaintiff may recover damages for such injuries.54

The Court explained that its adoption of this rule was in no way creating a new duty; rather, it simply involved a "broadening of the duty concept" by allowing an immediate family member in the zone-of-danger, to whom a duty is already owed, to recover an element of damages not previously allowed.65 In adopting this narrow rule, the Court expressly rejected the use of foreseeability alone as the test of whether a duty is owed to a plaintiff.56 The Court's rationale for rejecting this approach was grounded in public policy-more specifically, the fear that such an approach could lead to unlimited liability.57 In order to recover for emotional distress, the Bovsun Court also required that the plaintiff show not only that his or her emotional injuries were proximately caused by the defendant's negligence, but also that such injuries are serious and verifiable.58 Other than this narrow zone-of-danger rule, New York courts have rarely recognized liability for emotional injuries based on injuries to loved ones.59

In sum, New York will allow recovery for emotional injuries flowing from physical injuries caused by the defendant's negligent conduct.60 Though New York is willing to allow recovery for purely emotional injuries, the number of circumstances in which such recovery will be permitted is certainly limited.61 In order for a plaintiff to recover for emotional injuries stemming from a physical injury negligently inflicted upon another, the plaintiff needs to fit within the narrow zone-of-danger rule.62 When the Court of Appeals denies recovery, it is most often because it finds that the defendant did not owe a duty to the plaintiff.63 The determination of whether or not a duty was owed to a particular plaintiff is almost entirely dependent on public policy considerations.64

C. New York's Approach to NIED in Prenatal Claims

It is difficult to imagine damages more foreseeable than the severe emotional distress, mental anguish, and disappointment suffered by a woman who has a miscarriage or stillbirth due to her doctor's malpractice. However, Bovsun made clear that foreseeability is not enough in New York.65 Instead, foreseeability has often given way to public policy concerns and the court's fear of opening the floodgates of litigation. These ideas seem to underlie most of the Court's decisions in this area and have led to unfair or even illogical outcomes.66

In deciding whether to permit recovery for NIED to parents and would-be parents for injuries to their children inflicted during pregnancy, the main issue for courts is whether a duty was owed to the parents to protect them from such injury.67 In Endresz v. Friedberg,68 while disallowing a wrongful death cause of action on behalf of stillborn fetuses, the Court of Appeals stated that "[the plaintiff mother] may recover for the injuries she sustained, both physical and mental, including the emotional upset attending the stillbirths."69

This seemingly broad dicta was severely limited by the Court of Appeals' decisions in Vaccaro v. Squibb Corp.70 and Tebbutt v. Virostek,71 in which the Court made clear that no recovery was permitted for a mother's emotional injuries resulting from the prenatal injuries to her child absent a showing of an independent physical injury to her.72 In Vaccaro, the plaintiff parents brought several causes of action, including one for NIED, against the defendant doctor and defendant pharmaceutical company after their child was born without arms or legs and with other serious birth defects.73 The child's injuries were caused by a progestational hormone manufactured by the pharmaceutical company and administered by the doctor to the mother during her pregnancy.74 In Tebbutt, the plaintiff sued the defendant doctor to recover damages for her "pain, severe disappointment, anxiety, despondency, bitterness and suffering," all of which resulted from the stillbirth of her child. The fetus' death was allegedly caused by the defendant doctor's negligently performed amniocentesis.75

In both of these cases, the Court rejected the plaintiff mothers' contention that the defendant doctor owed them a duty of care that would support a cause of action for NIED.76 This position in particular was strongly opposed by the dissenters in both cases,77 who asserted that the defendants' actions constituted a breach of a duty owed directly to the mothers.78 Judge Kaye, who authored one of the dissenting opinions in Tebbutt stated: "Where the law declares that the stillborn child is not a person who can bring suit, then it must follow in the eyes of the law that any injury here was done to the mother."79 Similarly, another dissent in Tebbutt expressed concern that the majority left unborn children in a "juridical limbo, where negligent acts, with fatal effect, performed upon the child are neither compensated nor deterred."80

Regardless of the strongly worded dissents in both of these cases, the majority opinions represented binding authority in New York and were faithfully followed for nearly twenty years.81 After Tebbutt, New York courts strictly adhered to the following rule: "[A] mother [can] not recover for emotional injuries when medical malpractice cause [s] 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."82 This physical injury threshold was extremely difficult to meet, making recovery for NIED in these types of cases rare.83

Some mothers, taking a slightly different approach, have attempted to recover under the zone-of-danger rule. After finding it clear from Tebbutt that mothers must assert an independent physical injury in order to recover for NIED, the departments of the Appellate Division have generally found the zone-of-danger rule inapplicable to fetal injuries.84 Courts have also rejected the claim of a father for NIED resulting from his child's in utero injuries under the zone-of-danger rule.85

The Court of Appeals, however, has allowed recovery for NIED stemming from medical malpractice in the abortion context. Martinez v. Long Island Jewish Hillside Medical Center86 represents one such case where the Court allowed the plaintiff to recover for NIED. In Martinez, the plaintiff underwent an abortion after the defendant doctors erroneously advised her that her child would be born with severe birth defects.87 Because the Court found that defendants owed a duty directly to the plaintiff, she was permitted to recover any damages, including those emotional in nature, that were caused by the breach of that duty.88

Similarly, in Ferrara v. Bernstein,69 the Court allowed the plaintiff to recover for NIED after she miscarried following an unsuccessful abortion.90 The Court likewise reasoned that recovery was permitted because the defendant doctor owed a duty directly to the plaintiff.91

The inconsistencies in this area of the law are apparent:

There may be recovery for emotional distress for stillbirths caused by automobile accidents but not for those caused by malpractice; however, there may be such recovery for abortions undertaken as a result of malpractice. There is no recovery for the emotional distress of parents whose child is born with severe injuries as a result of either negligence or malpractice.92

To this point, the state of the law was that automobile operators, but not doctors, owed pregnant women a duty not to cause them emotional distress by negligently causing the stillbirth of their children.93 A child born alive, but with birth defects caused by a doctor, could maintain a cause of action for NIED,94 but when presumably more egregious negligence actually resulted in the death of the child, the doctor was insulated from liability.95 Finally, a doctor had a duty not to expose a womanto emotional injuries when advising her whether to undergo an abortion,96 and when performing an abortion.97 Despite these inconsistencies, it took the Court of Appeals nearly twenty years to fill this gap left by Tebbutt and its progeny.

II. BROADNAXV. GONZALEZ AND FAHEY V. CANINO: THE GAP is FILLED

A. Facts, Holding, and Rationale

On April 1, 2004, the Court of Appeals overruled a nineteen-year-old precedent when it answered in the affirmative the question of "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."98 Two separate cases came together before the Court of Appeals so this issue could be settled."

One of the plaintiffs, Karen Broadnax, was under the care of the defendants Frederick Gonzalez, an obstetrician, and Georgia Rose, a certified nurse-midwife, during her 1994 pregnancy.100 On September 25, 1994, a series of traumatic events unfolded, tragically ending with Karen Broadnax's delivery of a full-term stillborn girl.101 As a result of these events, Karen Broadnax and her husband filed suit against the 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."102

In 1999, the other plaintiff, Debra Ann Fahey, while pregnant with twins, was under the care of defendant Dr. Anthony C. Canino and defendant OBGYN Health Care Associates, P.C.103 Debra Ann Fahey and her husband brought an action against the defendants after their alleged failure to diagnose a cervical condition led to the miscarriage and stillbirth of both twins.104

The Broadnaxes and Faheys petitioned the Court of Appeals after adverse lower court rulings, both of which relied on Tebbutt in dismissing the plaintiffs' claims for NIED.106 Due to its inability to "defend Tebbutt's logic or reasoning," 106 the Court of Appeals reversed the lower courts' decisions in Broadnax and Fahey and overruled its own prior decision in Tebbutt.101 The Court of Appeals' majority opinion pointed to the "logical gap" Tebbutt left in the law: "[I]t 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."108 Finally, after several decades, the Court decided: "It [was] time to fill the gap."109 Since the fetus is unable to bring suit in a situation that causes its stillbirth or miscarriage, " 'it must follow in the eyes of the law that any injury here was done to the mother.' "uo The Court noted that its decision was in accordance with the majority of other jurisdictions in the country.111

In holding that a mother may recover for emotional distress when medical malpractice results in a stillbirth or miscarriage, the Court finally recognized that the treating physician owes a duty not only to the fetus, but also to the mother:

Although, in treating a pregnancy, medical professionals owe a duty of care to the developing fetus . . . , they surely owe a duty of reasonable care to the expectant mother, who is, after all, the patient. Because the health of the mother and fetus are linked, we will not force them into legalistic pigeonholes.

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 emotional distress.112

The majority understood that its holding was a departure from precedent, but found stare decisis alone insufficient to support the continuation of a rule that it found to be both unfair and illogical.113 The Tebbutt rule represented the Court of Appeals' effort to limit liability by means of a bright-line circumscription of duty. "To be sure, line drawing is often an inevitable element of the common-law process, but the imperative to define the scope of a duty-the need to draw difficult distinctions-does not justify . . . clinging to a line that has proved indefensible."114

B. Judge Read's Dissent

Judge Read dissented from the majority opinion in Broadnax for several reasons-one being respect for the doctrine of stare decisis.116 Judge Read did not think the majority's reasons for redefining a physician's duty of care to a pregnant woman justified overruling Tebbutt.116 In her view, nothing in the previous twenty years had made the Tebbutt rule outdated or unworkable. In other words, because the gap referred to by the majority117 existed in 1985 when Tebbutt was decided, Judge Read considered the majority's decision to fill it now, in contravention of precedent, to be unjustified.118

While Judge Read's concerns about the doctrine of stare decisis are generally well-founded, stare decisis is not enough by itself to justify adherence to a rule that has consistently produced unfair and illogical results. Further, the fact that the gap existed when Tebbutt was decided does not necessarily mean that the Court should not fill it now. In fact, the Court of Appeals itself said: "Negligence law is common law, and the common law has been molded and changed and brought up-to-date in many another case. Our court said, long ago, that it had not only the right, but the duty to re-examine a question where justice demands it."119 Judge Read also thought that the rule from Tebbutt was easy to apply and proved to be workable over the previous twenty years.120 Though this is an arguably accurate observation, it does not appear that courts will have any more difficulty applying the rule from Broadnax than they did applying the rule from Tebbutt. In fact, now that the physical injury threshold121 from Tebbutt no longer needs to be surmounted, the rule from Broadnax is arguably easier to apply and more workable than that from Tebbutt. Under Tebbutt, the lower courts needed to determine whether a plaintiff suffered an independent physical injury or whether the plaintiffs injury was a normal incident to childbirth-a task that historically has not been easy to undertake.122 Now, under Broadnax, no such determination is necessary.123

Though, according to Judge Read, the majority's rule "expand [ed] existing law sparingly," she expressed concern over the effect that this expansion of medical caregivers' liability will have on the cost and availability of gynecological and obstetrical services.124 Judge Read was also apparently uncomfortable with asking juries to quantify the emotional distress suffered by a mother who has experienced a stillbirth or miscarriage.125

Emotional damages flowing from a stillbirth caused by medical malpractice seem no more speculative than in any other case where recovery for emotional distress is permitted, such as when a pregnant woman loses her child due to the negligence of an automobile operator.126 These damages certainly are no more speculative because they resulted from the negligence of a doctor rather than an automobile operator. Further, if the level of damages awarded to these mothers becomes truly overburdensome to the medical industry and public policy so dictates, a cap on the amount of recovery can always be imposed by New York's legislature.127

III. THE AFTERMATH OF A DECISION LONG OVERDUE FOR NEW YORK

A. Some Initial (Mixed) Reactions

Almost immediately after the Court of Appeals decided Broadnax, there was much speculation as to the likely implications of the decision.128 Some expressed concern over what effect this increased exposure to liability would have on the medical community, particularly on the specialty of obstetrics.129 Others felt the decision was fair and posed no real threat to the medical community.130

There was also speculation as to the amount of damages that juries could be expected to award for NIED in prenatal medical malpractice cases.131 Some predicted that a flood of litigation would follow the decision: "[T]he floodgates have clearly been opened. The only question is how far."132 Though Broadnax's full impact remains to be seen, it did not take long for some of its implications to surface.

B. Is Vaccaro Still Valid After Broadnax?

Shortly after Broadnax, several members of the legal community predicted that a likely result of the decision was the implicit overruling of Vaccaro.133 In fact, it was urged that reading Broadnax otherwise would lead to an unfair and illogical result:

Infants that survive but are injured as a result of malpractice possess their own causes of action, such that there is no gap or immunity in providing a remedy for wrongful conduct. However, that does not change the fact that the mother of an injured child-to whom a duty is owed-may sustain her own serious emotional injury from the injury to her child. . . . Denying that mother the right to recover for her emotional harm would leave a logical gap both in the degree and the nature of the recovery.

It would likewise be illogical to permit recovery by the mother whose child is stillborn, but to deny it where the baby dies as a result of the injuries caused by the same type of malpractice within minutes, hours, days, or weeks after delivery.134

It has been asserted that the only logical rule to be derived from Broadnax's recognition of a duty owed to the mother is that the mother is permitted to recover for emotional injuries resulting from any injury to her child sustained prior to and during birth.135 "[N]othing in the opinion expressly limit [ed] the mother's recovery for emotional injury to miscarriages or stillbirths."136

This was precisely the position taken by the second Department in Sheppard-Mobley v. King.131 In that case, the plaintiff mother gave birth to a child with severe defects due to the alleged negligence of the defendant doctors.138 As a result, the plaintiff brought multiple claims against the defendants, including one for the emotional distress she suffered as a result of her child being born in an impaired state.139 The court found Broadnax controlling:

[W]e discern no reasonable basis to limit the Broadnax holding to cases of stillbirth and miscarriage. The duty owed to the mother remains the same whether the fetus is stillborn or is born in an impaired state. The duty is not vitiated by virtue of the live birth of a child in a severely impaired state. In addition, the cases prior to Broadnax drew no distinction between miscarriage and stillbirth on the one hand, and the live birth of a fetus in an impaired state on the other hand, when they prohibited a mother's recovery for damages for emotional distress in the absence of independent physical injury to the mother.140

At first, it seemed that the second Department's holding would be a good indicator of how the rest of the courts would decide this issue. Its decision not only made logical sense in light of Broadnax's holding, but it also seemed to be in accord with the fair and equitable outcome that the Broadnax Court clearly sought.

Because the Court of Appeals explicitly recognized that a doctor owes an expectant mother a duty of care, there was no reason to suppose that this duty would only be recognized for certain results of negligence but not for others. It seemed logical to say that this duty exists regardless of whether the subsequent breach of that duty results in the stillbirth of a child or in birth defects to a child. On the other hand, it would seem quite illogical to say that the nature of the duty depends on the results of its subsequent breach. Unfortunately, the Court of Appeals disagreed.

In May 2005, the Sheppard-Mobley case reached the Court of Appeals, which unanimously reversed the second Department.141 The Court explained: "Our decision in [Broadnax] was intended to fill a gap created by our previous decision in Tebbutt which concerned the medical malpractice performed upon the body of an expectant mother resulting in a miscarriage or stillbirth. ... [O] ur holding in [Broadnax] [wa]s a narrow one . . . ."142 Since a child born with birth defects due to medical malpractice has his or her own cause of action against the doctor, the Court saw no reason to also allow the child's mother to collect for her emotional injuries unless she suffered an independent injury. Instead, Broadnax was "intended to permit a cause of action where otherwise none would be available to redress the wrongdoing that resulted in a miscarriage or stillbirth."143

Regardless of whether one agrees with the Court's decision in Sheppard-Mobley from a policy standpoint, it can hardly be argued that it is entirely inconsistent with New York's jurisprudence in this area. Since New York has a history of expanding the law in the NIED area sparingly and limiting liability whenever possible, it is not at all surprising that this rigid formulation of the Broadnax holding was adopted, and the second Department's more expansive reading was rejected.

C. The Limits of Broadnax

Another case that came before the Appellate Division after the Broadnax decision was Shaw v. QC-Medi New York, Inc.144 In Shaw, the plaintiff mother sued the defendant medical providers for NIED after witnessing her daughter nearly suffocate due to a blockage in her ventilator tube.145

The court distinguished the case from the situation in Broadnax and denied recovery to the mother.146 The court found controlling the fact that the plaintiff mother in Broadnax was actually the patient of the doctor, making the duty owed to her a logical result of the doctor-patient relationship.147 The court saw the plaintiff mother in Shaw more analogous to the father in Broadnax, where, because the father was not the doctor's patient, the court expressly refused to recognize a duty flowing from the doctor to the father.148 Likewise, since the mother in Shaw was not the patient of the defendants, the court held they did not owe her a duty of care.149 In so holding, the court made a familiar public policy argument, expressing its fears of unlimited liability and opening the floodgates of litigation:

To permit liability under these circumstances would create untold numbers of claims by third parties. Familial concerns are present in most instances involving relationships between health care providers and patients. Quite commonly, close family members are concerned with a patient's care and treatment. Were we to permit such liability as is sought by plaintiffs herein, medical providers would necessarily be concerned with matters unrelated to their treatment of patients.150

According to the court in Shaw, the holding in Broadnax is limited to pregnant mothers, and does not extend to other family members who may suffer emotional distress as a result of a family member receiving negligent medical care. Though only the Fourth Department has spoken on the issue thus far, it is likely that the rest of the Appellate Division will take the same position. The Fourth Department's reading of Broadnax seems accurate, particularly in light of New York's longstanding tradition of making only minor expansions at a time in recovery allowed for NIED.151

D. Better Late Than Never-A Change Long Overdue

The Broadnax case itself, coupled with the few cases that have already followed and interpreted it, make clear that a new bright-line rule has been created-one that is sufficiently limited in scope as to remain consistent with the theme of limited liability underlying New York's common law in NIED. The new bright-line rule seems to allow a mother recovery for emotional distress resulting from a negligently inflicted injury to her child before or during birth, but only where the negligence results in a miscarriage or stillbirth.

The Broadnax decision was long overdue in New York. It is clear, however, that the Broadnax decision, albeit important, really does "expand [the] law sparingly."152 The Broadnax decision seems to rest largely, if not entirely, on the inseparable and completely intertwined relationship between the mother and the fetus. There seems to be no familial relationship sufficiently comparable to this unique relationship that would justify genuine concerns of unlimited liability for medical practitioners and opening the floodgates of litigation. It seems unlikely that Broadnax will be expanded to situations outside of the prenatal context, or that it will be interpreted as allowing recovery to anyone other than a pregnant woman.153

Unfortunately, this change in the law does not have the power to eliminate all prenatal injuries suffered at the hands of medical professionals, but it nonetheless accomplishes something important. When an expectant mother goes to an obstetrician or other medical practitioner for prenatal care, she expects, whether or not consciously, that she is owed a duty from this professional to protect her and her child from harm. The law is now willing to validate that expectation and allow for compensation when that expectation, which the mother is undeniably justified in holding, goes unsatisfied and results in emotional distress.

CONCLUSION

In April 2004, the New York Court of Appeals filled a gap in recovery permitted for NIED in the prenatal malpractice area. Now, a mother is permitted to recover for emotional distress when medical malpractice results in the stillbirth of her child, regardless of whether the mother suffers an independent physical injury. Because the mother is actually the patient when she undergoes prenatal care from a medical professional, it makes logical sense to recognize that a duty is owed to the mother, as well as to the fetus. The unique relationship between a pregnant woman and her fetus ensures that this rule will not open the floodgates to endless litigation, and also will not result in unlimited liability for medical professionals. Since this rule is sufficiently limited in scope and possible application, these typical public policy concerns do not justify denying recovery. Though this rule will undoubtedly expose medical professionals to increased liability for their negligence, it is consistent with New York's interest in allowing an injured party to seek redress for a substantial injury. When the Court of Appeals decided to permit recovery for emotional distress to mothers who lose their children due to prenatal medical malpractice, it created a new, workable bright-line rule that has been long overdue for New York.