Pivotal Cases on Stillborn Babies and Women's Rights to Recover Emotional Damages

Two med mal cases Fahey v. Canino and Broadnax v. Gonzalez mark the Court of Appeals’ decision in 2004 to overturn a twenty-year old ruling stating that a mother could not recover for emotional distress when her doctor’s medical malpractice caused her to miscarry or give birth to a stillborn child if she did not show any other physical injury sustained apart from childbirth.

Two med mal cases Fahey v. Canino and Broadnax v. Gonzalez mark the Court of Appeals' decision in 2004 to overturn a twenty-year old ruling stating that a mother could not recover for emotional distress when her doctor's medical malpractice caused her to miscarry or give birth to a stillborn child if she did not show any other physical injury sustained apart from childbirth.

In Fahey, an obstetrician's malpractice in deciding to order an ultrasound instead of an immediate cesarean section after his patient was in labor and bleeding for almost three hours caused the patient to birth a stillborn baby. The patient sued the doctor and a nurse-midwife for medical malpractice, negligence in failing to properly and timely diagnose her placental rupture, and negligence in failing to timely perform a cesarean section that could have saved her baby's life.

In Broadnax, a different malpractice suit arose where an obstetrician incorrectly diagnosed a patient's symptoms of first lower abdominal pain and cramping and later intense pelvic pain and nausea. Attributing the symptoms to what the doctor believed was one of the patient's twins pressing on her sciatic nerve and dismissing the nausea complaint stating it was likely caused by something she ate that day, the patient suffered unimaginable amounts of severe emotional trauma. One of the expectant mother's twins popped out of her when she went to sit on a toilet and the patient was immediately rushed to the hospital with the umbilical cord still attached. The mother lost both twins at eighteen weeks and a separate incorrect diagnosis of problems relating to her cervix led her to birth a stillborn baby girl just a year later. The traumatized woman sued the doctor for medical malpractice and for negligence in failing to correctly diagnose the condition of her cervix.

Ever since the Court of Appeals' decision in 2004, which is currently on appeal, a lot has been talked about regarding a mother's newfound ability to sue for emotional damages even in the absence of an independent physical injury. The Court decided the above two cases jointly and held that medical professionals owe a duty of care to both the developing fetus and the expectant mother. Thus, when a fetus is injured in the womb and dies as a result or is miscarried, there is a breach of the duty of care, and the mother is entitled to recover damages for emotional distress. In the case that a miscarried baby cannot sue, the Court of Appeals ruled that the mother can because the injury was done to her.

Thanks to this 2004 ruling, lawyers of these plaintiffs no longer need to prove a separate and direct physical injury to the mother in order to recover emotional damages for the death of her fetus. Hopefully this decision has set the stage to deter negligent obstetricians by promoting a broad scope of the duty of care so that expectant mothers will be able to deliver healthier babies.

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