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A woman whose newborn son died when a nurse allegedly asphyxiated him accidentally has no cause of action for emotional distress, a Manhattan judge has ruled. Two 2004 decisions by the Court of Appeals enunciated an exception to the general rule against third parties recovering for emotional distress in medical malpractice by allowing mothers to recover for in utero injuries to fetuses. And Supreme Court Justice Eileen Bransten held in Santos v. St. Vincent’s Hospital and Medical Center of New York, 123543/01, that those rulings do not extend to post-birth injuries. “[I]njuries inflicted in utero are inflicted on a fetus directly through the mother. After birth, however, the child has its own separate existence and its injuries are independent,” she wrote. “In this case, defendants’ alleged medical malpractice was committed upon the child, and the mother, who was not a conduit for the injuries, should not be permitted to recover merely based on her relationship to the child,” Bransten concluded. Dea Alves-Santos gave birth to her son Daudi at Manhattan’s St. Vincent’s hospital on Dec. 16, 1999. Shortly after, a nurse using a vacuum extractor — a standard procedure for removing fluid from a newborn’s airway — allegedly asphyxiated the baby. In January 2002, on behalf of himself and his wife and as administrator of the baby’s estate, the baby’s father initiated a suit against the nurse, the hospital and the presiding doctor, among others. The suit alleged malpractice and sought unspecified damages. In December 2002, Alves-Santos voluntarily dropped her emotional distress claim, acknowledging that under New York law a mother cannot collect compensation for her pain and suffering for injuries to her child. (The parents continued their joint claim for nominal damages for loss of consortium, according to their attorney.) “Under common law, defendants have no duty to protect plaintiffs from emotional injuries sustained as the result of witnessing the allegedly negligent care provided to decedent by defendants,” Bransten wrote, quoting Shaw v. QC-Medi New York, 10 AD 3d 120. “To permit liability under these circumstances would create untold numbers of claims by third parties.” In 2004, however, New York’s highest court created an exception for injuries to fetuses. “[T]he 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 distress of miscarrying or having a stillbirth,” Bransten wrote, summarizing the holdings of Broadnax v. Gonzalez, 2 NY 3d 148, and Fahey v. Canino, 100 NY 2d 509. Subsequent decisions expanded the rule to allow mothers to recover in cases in which infants were born with severe disabilities stemming from negligence inflicted upon them in utero, the judge added. LINE DRAWN Alves-Santos therefore moved to rejoin the suit, arguing that Fahey and Broadnax provided her a new cause of action for emotional distress. Bransten denied the motion. “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 judge ruled. “Allowing mothers to recover for emotional distress based on their children’s injuries only when they are caused in utero is a sound rule,” she added. David Ratner, an attorney for the plaintiff, said that Alves-Santos intends to appeal. “It seems to me bizarre that a parent can recover for negligence that causes the death of a fetus and not for negligence in her presence that causes the death of a live-born child,” said Ratner, a partner at Benedict P. Morelli & Associates. “We think, based on what we’re seeing in the Court of Appeals, that the time may be ripe to expand parents’ rights here.” Joseph D. La Cava, an attorney for St. Vincent’s Hospital, said that the distinction between injuries to fetuses and injuries to newborns is a logical one. The parents of a newborn who dies may pursue a wrongful death claim, said La Cava of Garson, Gerspach, DeCorato & Cohen. But the parents of a fetus who suffers fatal injuries have no significant causes of action to pursue other than emotional distress, he added. Jury selection for the trial on the remaining claims begins Monday.

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