By: Alicia A. Ellis
New York courts will only allow recovery for negligent
infliction of emotional distress (“NIED”) in special
circumstances. The concern is that such recovery promotes
fraud and extra litigation. Additionally, the damages appear
remote and many times trivial and temporary. Nevertheless,
NIED has existed for the purpose of redressing substantial injuries
suffered as a result of another’s negligence.
Until recently, the New York case law that attempted to spell
out the special circumstances required for an NIED recovery was
fraught with inconsistencies, especially in the area of prenatal
medical malpractice. In essence, the law seemed to allow NIED
recovery if medical caregivers inflicted in utero injuries when the
fetus survived, but not when the injuries caused a miscarriage or
stillbirth. For years, this distinction served as a
categorical roadblock to countless deserving plaintiffs.
In Broadnax v. Gonzalez, the New York Court of Appeals
finally addressed the unfairness of the NIED case law by
specifically holding that any medical malpractice resulting in
miscarriage or stillbirth violates the duty of care owed to the
expectant mother, entitling her to damages for emotional
distress. This holding created a workable, bright-line rule,
with little or no risk of unnecessary litigation. While this
type of rule has been long overdue in New York, the specific
implications of Broadnax, for both expectant mothers and
medical caregivers, will remain uncertain for some time.
Regardless, it is certain now that New York is finally willing to
recognize a mother’s valid expectation concerning the quality of
care to be provided by medical caregivers to both herself and her
unborn
child.