Better Late Than Never: New York Finally Closes the "Gap" in Recovery Permitted for Negligent Infliction of Emotional Distress in Prenatal Medical Malpractice Cases

Article excerpt


New York courts, as well as courts in other states, have often been reluctant to allow recovery for negligent infliction of emotional distress ("NIED"). This reluctance stems primarily from public policy concerns. Courts have voiced three main concerns about allowing recovery for NIED:

(1) the problem of permitting legal redress for harm that is often temporary and relatively trivial; (2) the danger that claims of mental harm will be falsified or imagined; and (3) the perceived unfairness of imposing heavy and disproportionate financial burdens upon a defendant, whose conduct was only negligent, for consequences which appear remote from the "wrongful" act.1

Despite these concerns, however, the ability of an injured party to "seek redress for every substantial wrong" has been fundamental to New York's common law system,2 as well as to tort law in general.3 For this reason, the courts have allowed recovery in certain situations, regardless of the opportunities for fraud and extra litigation.4 Though New York courts have taken this position in some situations, they have often denied recovery for NIED in situations where they have felt compelled to do so by public policy.5 Competing policy interests always underlie decisions in this area, as courts struggle to strike a just balance between compensating those injured through the fault of others, and keeping liability reasonably limited and the potential for fictitious suits at a minimum.6 Therefore, courts have struggled for years to determine under what circumstances recovery will be permitted, keeping in mind notions of fundamental fairness as well as the public policy interests of keeping liability and litigation within manageable bounds.7

One historically problematic area within NIED has been prenatal medical malpractice.8 Until recently, New York law in this area was fraught with inconsistencies concerning under what circumstances recovery would be permitted.9 Furthermore, the case law in New York left a "logical gap" in the recovery it permitted to mothers when prenatal medical malpractice injured their children.10

For decades, when medical malpractice resulted in the stillbirth or miscarriage of a child, the child's mother was only able to recover for her emotional injuries if she could demonstrate that she had also suffered an independent physical injury-one that was not considered to be a normal incident of childbirth.11 This rule was premised on the court's finding that the doctor in such a situation owed a duty of care to the fetus, but not to the mother.12 This was also the rule if a mother suffered emotional injuries due to her child being born alive but with severe birth defects due to her doctor's negligence.13 Demonstrating the existence of an independent physical injury was difficult, making recovery for NIED in this area rare.14 This rule proved to "fit[] uncomfortably into [New York's] tort jurisprudence."15

At the same time that this rule was in effect, a pregnant woman had a cause of action for NIED if her doctor erroneously advised her to undergo an abortion,16 or if her doctor negligently performed an abortion.17 Further, a child born alive, but with birth defects due to another's negligence, had his or her own cause of action against the tortfeasor.18 Finally, if an automobile operator, instead of a doctor, caused the stillbirth or miscarriage of a child, the child's mother had a cause of action for NIED.19 The state of law at this time, therefore, "engendered a peculiar result: it exposed medical caregivers to malpractice liability for in utero injuries when the fetus survived, but immunized them against any liability when their malpractice caused a miscarriage or stillbirth."20

This "gap" often resulted in unfair outcomes since it categorically denied recovery to certain deserving plaintiffs,21 even though allowing recovery would often be more aligned with fundamental notions of fairness. …