Published on:

Plaintiff Claims Emotional Distress from Medical Malpractice Issue, NY Appellate Court Denies Motion to Amend Complaint


On 16 December 1999, a woman gave birth to a baby boy at a hospital. The infant, a full-term baby, was born alive. A New York Injury Lawyer said that shortly after the delivery, a nurse allegedly negligently used a vacuum extractor on the infant, which deprived him of oxygen and caused his death.

On 14 January 2002, plaintiff, as administrator of the estate of the deceased infant, commenced the instant action claiming that defendants negligently caused the infant to asphyxiate and die. The mother was originally a party to the action and claimed pain and suffering due to defendants’ negligence.

On 19 December 2002, the court granted plaintiff leave to amend his complaint to include the herein plaintiff, as administrator of the infant’s estate. The mother also voluntarily discontinued her claims because she had no individual claims for pain and suffering.

Plaintiff moves that the court allow him to amend his complaint to add the mother as a plaintiff based on the Court of Appeals’ recent decision. A Nassau County Personal Injury Lawyer said he argues that he should be permitted to add the mother as a plaintiff even though the statute of limitations has expired because her claim relates back to the original filing date. Furthermore, he argues that the mother is not barred from bringing this action even though she previously discontinued her claims because waiver is the relinquishment of a known right and the mother did not have a right yet to bring the instant suit at the time she discontinued her claims.

Defendants oppose this motion, arguing that the Court of Appeals decision does not apply because the infant was born alive. Further, defendants urge that such decision and its progeny should not apply retroactively to cases filed before it was decided. Additionally, they argue that the mother waived any claims that she might have had in this action when she voluntarily discontinued them. A Manhattan Personal Injury Lawyer said finally, defendants contend that the mother’s claim is barred by the statute of limitations.

With regard to prenatal medical treatment, medical professionals owe a separate duty of care to the mother and the developing fetus. Thus, when a doctor negligently causes a fetus to suffer permanent injuries, the infant, if later born alive, has a cause of action against the doctor. Likewise, if a doctor commits medical malpractice against the mother’s person that causes her physical injury, she has a separate cause of action against the doctor.

Until 2004, however, neither a mother nor her fetus had a cause of action if a doctor negligently caused a miscarriage or stillbirth (by a birth injury or birth injury accident) unless the mother sustained actual physical injury.

In 2004, the Court of Appeals held for the first time that, even in the absence of independent physical injury, a mother can recover against a negligent doctor for the emotional of miscarrying or having a stillbirth. The Court reasoned that if “the fetus cannot bring suit, it must follow in the eyes of the law that any injury here was done to the mother.”

Cases following the Court of Appeals decision have slightly expanded this rule to authorize recovery for a mother’s emotional distress not only when fetuses die in utero, but also in cases in which an infant was born severely impaired because of negligence inflicted upon the fetus while in utero.

Plaintiff argues that he should be permitted to the mother as a plaintiff because now she has a cause of action under the aforesaid decision. But here, unlike the fetuses in the Court of Appeals decision, the infant was born healthy and alive. There was no miscarriage or stillbirth. Defendants allegedly injured the infant shortly after he was born, not when he was in utero. The alleged negligence was inflicted independent of the mother; it was inflicted upon the infant.

The case at bar is much more analogous to cases in which parents have witnessed harm or death to their children. The mother is seeking recovery because she allegedly watched defendants improperly suction her child, which caused him to asphyxiate. Although defendants previously treated the mother in pregnancy, it was their care of the infant after his birth that allegedly caused his death. Defendants are not accused of causing the infant’s death through their negligent treatment of the mother while he was in utero.

This distinction is an important one. New York case law establishes that in analyzing a mother’s ability to recover for emotional distress based on injuries to her child, courts must draw a line between injuries caused in utero and those inflicted after the child was born. Otherwise, courts will open the gates of recovery for mothers to recover anytime something happens to their children.

The court has previously ruled that in any case of medical malpractice, it is foreseeable that many individuals at various degrees of closeness to the directly injured party will suffer emotional distress. If such foreseeability is held to create or define a duty as a foundation of liability, it may well open our courts to an inundation of claims for emotional injuries extending far afield of the epicenter of the injury.

Allowing mothers to recover for emotional distress based on their children’s injuries only when they are caused in utero is a sound rule. After all, injuries inflicted in utero are inflicted on a fetus directly through its mother. After birth, however, the child has its own separate existence and its injuries are independent. They are not effected through its mother.

The mother should not be permitted to recover merely based on her relationship to her child. The Court of Appeals decision as mentioned held that the treating physician owes no duty of care to the expectant father and there is no basis to distinguish between a mother and a father.

The infant was injured after birth and not in utero. The mother has no cause of action and her request to be added as a plaintiff is denied.

Accordingly, the court denies the plaintiff’s motion to amend the complaint.

If you have inquiries on legal matters such as the above, contact Stephen Bilkis & Associates. We are experienced in the legal profession and we have highly trained lawyers who are proficient in the field of personal injury. We provide the best New York City Personal Injury Attorneys such as our New York City Medical Malpractice Attorneys or our New York City Birth Injury Accident Attorneys.

Contact Information