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Loss of a one-week pregnancy is considered a “serious injury” under New York insurance law – McKendry v. Thornberry, 872 N.Y.S.2d 658 (N.Y. Sup. Ct., 2009)


The issue in this car accident case is whether, under New York’s insurance law, the plaintiff suffered a “serious injury” when she lost her 1-week old pregnancy as result of the car accident. Under New York Insurance Law § 5104, in order to recover for pain and suffering in a personal injury lawsuit, the plaintiff must have suffered a serious personal injury. Examples of injuries that are deemed serious include an injury that results in death, dismemberment, disfigurement, loss of the use of a body organ, or loss of a fetus.

In December 2002, the plaintiff and the defendant were involved in a car accident in Troy, New York. As a result, the plaintiff filed a personal injury claim against the defendant, stating the serious injury she suffered was the loss of her unborn child. In response, the defendant filed a motion for summary judgement dismissal based on 2 issues: 1). The loss of a 1-week pregnancy is not a serious injury; or 2). The plaintiff’s miscarriage was not caused by the car accident.

Defendant’s argument that the plaintiff’s miscarriage was not caused by the car accident is based on the plaintiff’s own deposition testimony that she was told by a physician’s assistant that her miscarriage was not caused by the car accident. In addition, the defendant submitted a report from a doctor who asserted that his medical opinion was that the car accident did not lead to the plaintiff’s miscarriage. Despite what she stated in her deposition, the plaintiff also submitted an affidavit of her treating doctor who maintains that the plaintiff’s miscarriage was indeed caused by the car accident. Thus, the plaintiff argues, there is a triable question of fact.

Next, the defendant submits evidence from a doctor that a 1-week pregnancy is an embryo and not a fetus. The defendant’s doctor’s definition of a fetus is from a medical dictionary. The defendant also presents evidence of the definition of a fetus from Webster’s dictionary and a publication called the, “Expectant Mother’s Guide.” The plaintiff responds by arguing that the appropriate definition of fetus is the one used in the insurance statute, and that according to New York’s insurance law, a pregnancy of any duration is a “fetus.” Further, the plaintiff argues that instead of considering dictionary definitions, the court must consider the intent of the legislature.

Because the defendant filed the motion for summary judgement dismissing the case, the defendant has the burden of making a prima facie showing that she is entitled to judgement as a matter of law. In other words, the defendant must show the absence of any material issues of fact. If the defendant is able to make a prima facie showing that she is entitled to judgement, the burden shifts to the plaintiff to establish that there are genuine issues of material fact. The court will view evidence presented in the light most favorable to the opposing party- in this case, the plaintiff.

As for the issue as to whether the car accident caused plaintiff’s miscarriage, the court found that the defendant did establish prima facie entitlement to judgement. She presented evidence from an expert witness who is a doctor and from the physician’s assistant who treated the plaintiff that the accident was not the reason that the plaintiff miscarried. However, the plaintiff submitted an affidavit from her doctor that stated that the car accident did cause her miscarriage. Thus, she disputed defendant’s evidence. Consequently, there is a triable issue of fact.
The court also notes that there is a question as to statutory construction of the term “fetus.” While the court may take the medical definition into account, the court is required to determine legislative intent. The court concluded that the legislative intent was that for the purposes of the insurance law, a fetus refers to a pregnancy of any length.

The defendant’s motion for summary judgement was denied.

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