In this case the Court of Appeals considered whether an expectant mother may recover damages for emotional harm where her baby was injured in utero injury and subsequently born alive.
When Plaintiff Karen Sheppard learned that she was pregnant, her obstetrician, Dr. King, also informed her that she had fibroids and that she was not likely to carry the fetus to term. Her doctor advised her to terminate the pregnancy. Her doctor also referred her to Dr. Spector for a second opinion concerning the performance of a surgical abortion. Dr. Spector advised against a surgical abortion and recommended a nonsurgical abortion using the drug methotrexate. Methotrexate breaks down fetal tissue.
During the plaintiff’s seventh week of pregnancy, Dr. King administered the methotrexate. Upon administering the second dose, Dr. King told the plaintiff that no there was no fetal heartbeat. The plaintiff then met with Dr. Sheila Kumari-Subaiya who performed a sonogram and advised Sheppard that there was no fetal heartbeat.
After experiencing weeks of abdominal discomfort, the Plaintiff learned that she was till pregnant because Dr. King had not administered the proper dosage of methotrexate. The plaintiff decided against getting a late stage abortion out-of-state. On March 3, 2000, infant plaintiff Jo’Ell Sheppard-Mobley was born with serious congenital impairments due to methotrexate.
The infant and his parents filed a personal injury lawsuit against Dr. King, Dr. Shelby, and Dr. Kumari-Subaiya. The complaint alleges that plaintiff infant suffered severe physical injuries caused by defendants’ failure to properly diagnose, care for and treat plaintiff Shepherd during the course of her pregnancy. For the infant, the complaint sought damages for his physical injuries, for the parents, their loss of the child’s services and medical expenses, and for the mother, for physical and emotional injuries.
The defendants responded by filing a motion for summary judgment on the plaintiff mother’s claim of emotional distress. The trial court granted the motion and the Appellate Division reversed. The defendants appealed.
Court of Appeals decision
The precedence for the court’s analysis is found in Broadnax v Gonzalez and Fahey v Canino, 2 N.Y.3d 148 (2004). In Broadnax/Fahey, the court ruled that where there is a miscarriage or stillbirth resulting from medical malpractice resulting, there would be a violation of the duty of care to the mother. As a result, she would be entitled to damages for emotional distress. While the Appellate Division determined that Broadnax/Fahey reasoning applied to this case, the Appeals Court disagreed.
Even though the baby was injured in utero, the baby was not stillborn and there was no miscarriage. The plaintiff mother carried her baby to term. While the baby was born with significant injuries, he was born alive.
The Court of Appeals sided with the defendants and dismissed the plaintiff mother’s cause of action seeking damages for emotional distress based on her miscarrying or stillbirth. However, the court also noted that the plaintiff mother could still recover damages for emotional distress based on injuries that she suffered. Specifically,
Plaintiff mother alleges that she the defendants told her that she would not be able to carry her baby to term and they improperly administered the drug for the chemical abortion. The allegations, if proven, may support a finding of injury to the plaintiff mother independent of the birth of an impaired child. However, since the plaintiff did not make these allegations, the plaintiff would have to amend her complaint to include them if she still wishes to seek recovery for emotional distress.
Mobley demonstrates how complicated a birth injury case can be. Depending on a number of factors including when the baby was injured, whether the baby was born alive, the types of injuries suffered by the baby, and the types of injuries suffered by the mother, there may be multiple causes of actions, multiple plaintiffs, and multiple types of damages sought.