Moms of Stillborns Fight for Right to Sue
City Woman Lost Twins in 1999

By Erika Rosenberg,
Albany Bureau
February 13, 2004

ALBANY -- Lawyers for a Binghamton woman and a Yonkers woman whose babies were stillborn told the state's highest court Thursday they should be able to sue for medical malpractice.


The lawyers asked the Court of Appeals to overturn its own ruling in a previous case that mothers can sue only for emotional damages in cases of stillbirths if the mother suffered some independent physical injury.

Otherwise, the lawyers said, women who aren't injured have no way of suing for malpractice. In contrast, a woman who receives a botched abortion is allowed to sue and recover emotional damages, one pointed out.

"She doesn't want to lose this child. Someone's negligence is causing her to lose this child and she can't recover (damages)? That just seems terribly unfair and inconsistent," said Patricia Cummings, a Binghamton lawyer. "The situation that we have right now is intolerable. It immunizes the defendant for the most egregious conduct imaginable."

Cummings represented Debra Ann Fahey, who lost two twins in 1999 after delivering one into her own hands. She had reported pain and cramping to her doctor, who told her she was not in labor at 18 weeks of pregnancy.

In the Yonkers case, Karen Broadnax delivered a full-term stillborn daughter in 1994 after several delays in having the baby. After reporting her water had broken, Broadnax was taken from a Yonkers birth center to a Manhattan hospital, instead of a closer facility. She then waited 45 minutes for her doctor.

Questioning the lawyer for the doctors, Judge Robert Smith homed in on the point that current law allows no recourse for women in these types of stillbirth cases.

"Under the present law that you're asking us to uphold," Smith asked, "is it true that you can have an act of malpractice, one that causes real harm and no one can recover?"

"Yes," replied lawyer Janet Callahan.

"Can you think of another situation where there's real malpractice, real harm and no potential plaintiff?" Smith asked.

"A medical malpractice situation? No," Callahan answered.

But Callahan said changing the law could allow a flood not only of stillbirth cases but other types in which one person is allowed to sue because someone else is hurt. She also said if the law is changed, it should be done by the Legislature, not the court.

Another judge asked whether allowing a mother to sue for emotional damages would open the door to damages for the father of a stillborn child as well.

"We're talking here about a tragedy and a grief factor. That's really what this is all about," Judge Albert Rosenblatt said. "Is it possible to logically, to rationally separate a cause of action for the mother ... and one for the father?"

Cummings, the lawyer for the Binghamton woman, said it was because legally the doctor owes a duty only to the woman. "The pregnancy is owned by the woman," she said. "The duty is established between the woman and her physician."

The court is expected to decide the case in four to six weeks.
 

Last Updated 07/20/2006     Design donated by Web-Writer