New York court expands liability in miscarriage and stillborn cases

A dissenting judge worries the narrow ruling could push even more doctors out of obstetrics.

By Tanya Albert amednews correspondent — Posted April 26, 2004

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New York doctors who deliver babies are worried that their already stifling liability insurance rates could come even closer to suffocating them after a recent decision by the state's highest court.

The New York Court of Appeals in April gave women the right to sue for emotional distress if a miscarriage or stillborn birth is the result of medical malpractice.

The court in its 6-1 opinion doesn't go as far as allowing women to sue for wrongful death, but it does overturn two decades of case law that prohibited expectant mothers in New York from collecting damages related to their emotional pain and suffering if an unborn child dies.

With more than 19,000 stillbirths and miscarriages reported in New York in 2000, physicians worry that they'll now end up in court when no medical negligence was involved and that sympathetic jurors will award pain and suffering damages simply because of the emotionally charged nature of these lawsuits.

"We are very concerned," said ob-gyn Richard N. Waldman, MD, vice chair of the American College of Obstetricians and Gynecologists New York. "If it were a fair fight, it would not be a problem. But the problem is that science doesn't protect us in court."

The ruling comes at a time when physicians nationwide are facing historically high medical liability insurance rates. Ob-gyns are among the hardest-hit specialists.

The American Medical Association says New York is one of 19 states facing a medical liability insurance crisis that has physicians retiring early, moving to states where insurance rates are lower and cutting back on high-risk procedures in an effort to lower insurance premiums.

"We're a specialty under siege," Dr. Waldman said.

Acknowledging expectant mothers

The Court of Appeals ruling puts New York in line with what the majority of other states allow expectant mothers to recover when medical malpractice results in a miscarriage or stillbirth.

The majority of the court and some lawyers say the new case law corrects an area of New York law that didn't make sense.

Previously, if a baby was born and lived one second, then died as a result of medical malpractice, the mother would have legal rights, while an expectant mother who delivered a stillborn child as a result of medical malpractice had no legal recourse.

"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," the court said. The previous case law "has failed to withstand the cold light of logic and experience."

The ruling gives expectant mothers the recognition that a baby is worth something in both situations, said Margaret C. Jasper, an attorney who represented one of the two patients who sued their physicians.

"I have a lot of respect for doctors," she said. "But there are clearly cases where there is medical negligence."

She said doctors who are worried about unjustified lawsuits being filed need to do a better job of policing their own.

"In New York, it's difficult to bring a malpractice case," Jasper said. "You have to have another doctor say there is reason to bring a lawsuit ... there's a statute of limitations, and you need an expert at trial."

The Court of Appeals considered two cases when making its decision. The first, Broadnax v. Gonzalez, involved a woman who said that if she had received a C-section sooner, her full-term baby girl might not have been stillborn. In the second, Fahey v. Canino, the expectant mother claimed she miscarried her twins because doctors failed to diagnose and treat her for an incompetent cervix.

One judge dissented in the ruling, saying she didn't agree with the majority's justification for redefining when expectant mothers can sue.

"Juries will be asked to quantify the emotional distress that a woman feels upon suffering a miscarriage or stillbirth," Judge Susan Phillips Read wrote in her dissent. "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."

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