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An article in the New York Times published online on August 23rd – After Stillbirth, Courts Try to Put a Price on a Mother’s Anguish – reports on two cases involving recovery by an expectant mother for mental suffering following a miscarriage or stillbirth caused by medical malpractice. In Ferreira v. Wyckoff Heights Medical Center, the court held in February that the million-dollar verdict, first reached in 2005, was “reasonable compensation” for the mother’s anguish. The other case mentioned in the article has not yet gone to trial. The plaintiff in this latter case has so far rejected an offer of $500,000 from the hospital to settle the suit.
These cases are only the latest chapters in New York’s long history dealing with recovery of damages for emotional suffering due to a miscarriage or stillbirth caused by a doctor’s negligence. The general rule is that a person cannot recover damages for suffering unless accompanied by an actual physical injury. In the case where a child is killed in the parent’s presence, the parent can recover damages even if the parent was not injured, if the parent was in the “zone of danger” at the time the accident occurred.
In 1985, the court held in Tebbutt v. Virostek that an uninjured mother was also not in the “zone of danger” in the case of a miscarriage or stillbirth and could not recover damages. This precedent was finally overturned in 2004 in the combined cases of Broadnax v. Gonzalez and Fahey v. Canino, when the court decided that it didn’t make sense to allow damages when infants are injured in the womb yet survive the pregnancy, but to deny any recovery in the case of a miscarriage or stillbirth. As New York law now stands, medical malpractice that causes a miscarriage or stillbirth is a violation of the duty of care owed to the pregnant woman, entitling her to recover damages for emotional distress.
If you or a loved one has been the victim of medical malpractice caused by the negligence, incompetence, or misconduct of a doctor, hospital, or other New York City health care professional, contact the law offices of Leandros A. Vrionedes, P.C. to speak with a qualified and experienced medical malpractice lawyer.