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The New York Court of Appeals has apparently decided to speak on an issue that has hopelessly divided the lower courts: whether or to what extent a mother who suffers no clear injury independent of childbirth can recover for malpractice that allegedly destroyed her fetus. On Tuesday, the court granted leave in Fahey v. Canino, where a panel in Albany split 4-1 in upholding summary dismissal. In that case, the court held that the plaintiff could not establish an independent physical injury, and observed that New York does not permit recovery for a woman’s emotional damages when a child is injured or killed either postpartum or in utero. A dissenting judge compared the case to a botched abortion, for which recovery would be available. Similar issues have repeatedly divided New York courts, including the Court of Appeals, over the past quarter century. The Court of Appeals addressed the question in Vaccaro v. Squibb Corp., 52 NY2d 809, a 1980 case. That case, which came to Albany after it divided the Appellate Division, 1st Department, involved a plaintiff who claimed anti-miscarriage drugs caused her child to be born without limbs. The majority reversed and dismissed the case in a terse memorandum, concluding that the mother failed to establish a cause of action for independent physical injuries. But in dissent, Judge Jacob Fuchsberg said that in addition to subjective emotional injuries, the plaintiff also alleged objective physical injuries such as “acute depression” and damage to her “nervous system.” Five years later, the issue re-emerged in Tebbutt v. Virostek, 65 NY2d 931 [1985]. In that 3rd Department case, a negligently performed amniocentesis caused a stillbirth. The Court of Appeals affirmed the 3rd Department, which had granted summary judgment to the defendant. But the case fractured the court and resulted in three judges agreeing with the lower court, one concurring and two writing separate dissents. One of those dissents was authored by now-Chief Judge Judith S. Kaye. “Where the law declares that the stillborn child is not a person who can bring suit, then it must follow in the eyes of the law that any injury here was done to the mother,” Kaye wrote in 1985. The case accepted yesterday involves a plaintiff named Debra Ann Fahey, who was two months pregnant when an ultrasound revealed the absence of a fetal heartbeat. A dilation and curettage procedure by Dr. Anthony C. Canino removed the fetus. A few months later, Fahey became pregnant with twins. When Fahey complained of cramping and abdominal pain, an ultrasound was performed by Dr. Patrick F. Ruggiero, Canino’s partner. That procedure showed that one of the fetuses was pressing on the mother’s sciatic nerve. The symptoms worsened and Canino instructed Fahey to lie down. Later, Fahey spontaneously delivered the fetuses, both of which perished. Fahey became pregnant a year later. With the aid of a cervical cerclage — suturing to buttress an incompetent cervix — Fahey successfully delivered a six-week premature girl. Her suit against Canino and Ruggiero and their medical group seeks recovery for the loss of the twins. The 3rd Department, in an opinion by Presiding Justice Anthony V. Cardona, found that Fahey cannot recover. The Court of Appeals is likely to hear the case next year.

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