Mom entitled to damages for emotional anguish from birth of stillborn baby

Until 2004, neither a mother nor a fetus had a cause of action if a doctor negligently caused a miscarriage or stillborn.  The Court of Appeals ended this anomaly with Broadnax v. Gonzalez, 2 N.Y.2d 148, 777 N.Y.S.2d 416
(2004).

Broadnax fundamentally changed the law in New York.  The Court of Appeals in Broadnax held that "medical malpractice resulting in a 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."  The holding in Broadnax provided a mother with redress for medical malpractice resulting in physical injury inflicted in the womb during pregnancy or labor and delivery.

However, in Sheppard-Mobley v. King, 4 N.Y.2d 627, 797 N.Y.S.2d 403 (2005), the Court of Appeals held that the mother has no claim for emotional distress when an infant is born alive and limited the prior holding in Broadnax to situations where a doctor negligently causes a miscarriage or stillborn.

In Mendez v. Bhattacharya, 15 Misc.3d 974, 838 N.Y.S.2d 378 (Supreme Court, Bronx County 2007), expanded Broadnax to the situation where a baby is born alive, but does not have any consciousness or signs of awareness before his/her death.  In Mendez, the baby showed minimal signs of life for a momentary period after birth, but was never viable and did not show any signs of consciousness.  The baby had a heartbeat, but "appeared flaccid, without respiration and blue."  The child was born alive as demonstrated by the presence of heartbeat, but died within minutes of birth as a result of malpractice prior to or during delivery. There was no other sign of life besides the heartbeat, nor was there any sign of consciousness of any kind. 

The court in Mendez held that the mother had a viable cause of action for emotional distress, absent any indication that the infant's estate possessed a cause of action for the infant's pain and suffering.  The court held that, "This Court finds that the considerations in this case are identical to those in Broadnax and the outcome should be the same."  The court in Mendez further held that, "Such situation [where the baby was born alive but had no signs of  consciousness] clearly comports wtih the rationale of Broadnax and Sheppard-Mobley."

The court in Mendez further explained that, "If it cannot be proven that the child had some level of awareness during his short life, there can be no claim for conscious pain and suffering. In that case, by the reasoning of Sheppard-Mobley, the mother should have a claim for her own emotional distress."  The court further held that, "this Court declares that the infant had no consciousness or awareness at any time, such that there is no cause of action for the deceased plaintiff infant, and thus, by the mandate of Broadnax, the mother has a viable cause of action for emotional distress."

The holding in Mendez is a lower court decision, but it was not appealed and there is no appellate authority holding to the contrary of this decision.  Thus, in cases where a baby is born alive, but has no signs of consciousness or awareness prior to his/her death, the mother has a cause of action for emotional distress if the physical injury to the baby was caused by a physician's medical malpractice.

A mother's claim for emotional anguish in these circumstances can be substantial. In Ferreira v. Wyckoff Heights Medical Center, 12 Misc.3d 1180, 824 N.Y.S.2d 762, a jury verdict of $1,000,000 for emotional distress for the damages of the mother of a stillborn baby was upheld on appeal.