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A woman whose baby is born alive but with severe deformities cannot sustain a medical malpractice action for her own emotional injuries, New York state’s high court ruled Tuesday. The unanimous Court of Appeals specifically declined to expand on its landmark ruling last year giving women the right to seek emotional damages when they miscarry or deliver a stillborn baby because of medical negligence. It said the opinion that dealt with Broadnax v. Gonzalez and Fahey v. Canino, 2 NY3d 148 (2004), was intended only to provide an avenue of relief where previously none existed, and to fill a gap in tort law. Until Broadnax, there was no way to hold a physician civilly liable for causing a fetus’s death unless the mother suffered an independent injury. The 2004 ruling permitted recovery by the mother for her emotional injuries. But the court said Tuesday that when the child is born alive and can bring a malpractice action for injuries that occurred in the womb, post-birth damages are available only to the infant. “This case calls upon us to determine whether an expectant mother may recover damages for emotional harm where the alleged medical malpractice causes in utero injury to the fetus, subsequently born alive,” Judge George Bundy Smith wrote for the court in Sheppard-Mobley v. King, 49. “We hold that … she may not.” However, the court also made plain that emotional damages are available to the mother in this case “to the extent that she seeks damages for emotional harm that she suffered as a result of an independent injury.” Here, the plaintiff, who suffered through a botched abortion only to deliver a physically and mentally disabled child, alleges a spectrum of independent, pre-birth injuries resulting in mental anguish. Sheppard-Mobley arises out of the 2nd Department. Court records show that in July 1999, Karen Sheppard was told by her obstetrician, Dr. Leslie A. King, that she was pregnant but that because of fibroid tumors in her uterus she probably would not be able to carry the fetus to term. Sheppard contends that King recommended an abortion. Another physician, Dr. Ira J. Spector, agreed with the diagnosis and recommended chemical rather than surgical abortion, according to the complaint. Sheppard was injected by King with two doses of methotrexate, an antimetabolite that blocks an enzyme necessary for proper cell development. Dr. Sheila Kumari-Subaiya, who performed a sonogram, advised Sheppard that the fetus was dead. Four months later, Sheppard learned that the chemical abortion had failed and that she was carrying a 28-week-old fetus. She rejected a suggestion by King and Spector to seek an out-of-state, late-term abortion and carried the child to term. On March 3, 2000, Jo’Ell Sheppard-Mobley was born with fetal methotrexate syndrome, which results in severe physical and mental impairments. Sheppard’s claim for emotional distress was dismissed by the trial court, but reinstated by the Appellate Division, 2nd Department, in an opinion by Justice Stephen G. Crane. Justice Crane found no reason to limit Broadnax to cases other than those resulting in live birth. “The duty owed to the mother remains the same whether the fetus is stillborn or is born in an impaired state,” he wrote. “The duty is not vitiated by virtue of the live birth of a child in a severely impaired state.” Justice Crane’s decision led at least two trial judges — Suffolk Supreme Court Justice Paul J. Baisley Jr., in Martins-Diaz v. Pardanani, No. 22928-2000, and Queens Justice Orin R. Kitzes, in Stuart v. New York City Health & Hospitals Corp., No. 009767-2003 — to apply Broadnax broadly. Following the lead of the 2nd Department, they held that Broadnax is applicable to live birth cases as well as those stemming from miscarriages or stillbirths. Tuesday, the Court of Appeals said the 2nd Department “improperly extended” Broadnax, which it said established only a “narrow” rule. “The rule pronounced in Broadnax/Fahey does not apply here, where infant plaintiff was injured in utero, but carried to term and born alive,” Judge Smith wrote. “After all … a child born alive may bring a medical malpractice action for physical injuries inflicted in the womb.” REACTION TO APPELLATE RULING Justice Crane’s decision expanding Broadnax alarmed doctors and insurance carriers, prompting several hospitals and the Medical Society of the State of New York to appear as amicus curiae in urging the Court of Appeals to reverse. Only the New York State Trial Lawyers Association filed an amicus brief in support of the 2nd Department holding. Defense counsel Timothy J. O’Shaughnessy of McAloon & Friedman in Manhattan, which represented Dr. King, said a contrary ruling would have impacted the already astronomical malpractice premiums paid by obstetricians and gynecologists. He said the ruling clearly limits Broadnax to cases of miscarriage and stillbirth. “We are obviously very pleased that we prevailed,” said O’Shaughnessy, who handled the case along with insurance defense partner Lawrence W. Mumm. “The alternative was that malpractice insurance premiums were going to go up substantially, and we are glad that is not going to happen.” Sheppard’s attorney, Bruce E. Cohen of Davidson & Cohen in Rockville Center, N.Y., said he is neither surprised nor disappointed with Tuesday’s ruling. He said the decision permits his client to recover damages for emotional injuries up to the time of birth. Those alleged injuries include the fact that Sheppard was wrongly told she probably could not carry a fetus to term, that she underwent a chemical abortion on the advice of her physicians, that she was informed the procedure was successful when it was not and that she had to decide whether to seek a late-term abortion in Kansas, as allegedly suggested by her doctors. “What this woman had to endure was just incredible and she is an incredible person,” Cohen said. “This is the mother of the year.” Also appearing on the appeal were John G. Tomaszewski of Marulli Pewarski & Heubel in Manhattan for Dr. Spector and Steven C. Mandell of Aaronson, Rappaport, Feinstein & Deutsch in Manhattan for Dr. Kumari-Subaiya.

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