Sheppard-Mobley ex rel. Mobley v. King
| Decision Date | 10 May 2005 |
| Citation | 4 N.Y.3d 627,830 N.E.2d 301 |
| Parties | Jo'Ell SHEPPARD-MOBLEY, by His Father and Natural Guardian, Lemuel MOBLEY, et al., Respondents, v. Leslie KING, M.D., et al., Appellants. |
| Court | New York Court of Appeals Court of Appeals |
Lawrence W. Mumm of counsel), for Leslie A. King, M.D. and another, appellants.
Marulli & Associates, P.C., New York City (John Tomaszewski and Pamela M. Gleit of counsel), for Ira J. Spector, M.D., appellant.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York City (Steven C. Mandell of counsel), for Sheila Kumari-Subaiya, M.D. and another, appellants.
Davidson & Cohen, P.C., Rockville Centre (Bruce E. Cohen of counsel), for respondents.
Law Offices of Michael A. Haskel, Mineola (Michael A. Haskel of counsel), for University Associates in Obstetrics and Gynecology, P.C., amicus curiae.
Mauro Goldberg & Lilling LLP, Great Neck (Kenneth Mauro and Richard J. Montes of counsel), for New York and Presbyterian Hospital and others, amici curiae.
Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success (Steven J. Ahmuty, Jr. of counsel), and Susan C. Waltman, New York City, for Beth Israel Medical Center and others, amici curiae.
Michael A. Cardozo, Corporation Counsel, New York City (Fay Leoussis, Laurel Hoffman, Kristin M. Helmers and Alan G. Krams of counsel), for New York City Health and Hospitals Corporation, amicus curiae.
Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains (Edward J. Guardaro, Jr. of counsel), for Combined Coordinating Counsel, Inc., amicus curiae.
Shoshana T. Bookson, New York City, Val Washington, Clifford S. Nelson and Glenn von Nostitz for New York State Trial Lawyers Association, Inc., amicus curiae.
LeBoeuf, Lamb, Greene & MacRae, L.L.P., New York City (Jay G. Safer and Brian K. Friedman of counsel), for Medical Society of the State of New York and another, amici curiae.
In Broadnax v. Gonzalez and Fahey v. Canino, 2 N.Y.3d 148, 777 N.Y.S.2d 416, 809 N.E.2d 645 [2004], this Court held that medical malpractice resulting in a miscarriage or stillbirth must be construed as a violation of the duty of care to the expectant mother, entitling her to damages for emotional distress. 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. We hold that, under Broadnax/Fahey, she may not.
In July 1999, plaintiff Karen Sheppard met with defendant Dr. Leslie A. King, of defendant Obstetrical & Gynecological Services of Rockville Centre (OGSRC), complaining of lower abdominal discomfort. After conducting various tests, Dr. King informed her both that she was pregnant and that she had large fibroids in her uterus. Dr. King told her that as a result of her fibroids, she was not likely to carry the fetus to term. Sheppard alleges that Dr. King advised her to terminate the pregnancy.
Dr. King subsequently referred Sheppard to Dr. Ira J. Spector for a second opinion concerning the performance of a surgical abortion. She asserts that Dr. Spector informed her that as a result of the fibroids, her pregnancy would not last beyond the fifth month, and that if the fibroids did not abort the pregnancy, "the baby would be terrible." However, Dr. Spector advised her that, given her condition, a surgical abortion would be difficult and dangerous. Thus, Dr. Spector suggested that a nonsurgical abortion be accomplished with the drug methotrexate, which breaks down fetal tissue.
In August 1999, while Sheppard was in her seventh week of pregnancy, Dr. King administered the methotrexate. According to Dr. King, he acted in consultation with Dr. Spector, who allegedly advised that the drug be administered in two separate 50-milligram doses, the second dose to be administered one week after the first. Upon administering the second dose, Dr. King allegedly advised Sheppard that she could detect no fetal heartbeat. Shortly thereafter, Sheppard met with defendant Dr. Sheila Kumari-Subaiya, a radiologist and owner of defendant Promedica Imaging, P.C., because although Sheppard believed the pregnancy to be terminated, she was concerned about the absence of fetal discharge. Dr. Kumari-Subaiya performed a sonogram and advised Sheppard that there was no fetal heartbeat.
Sheppard asserts that over the next few months, she experienced abdominal and pelvic discomfort and was concerned about the possibility of ovarian, cervical or uterine cancer. She consulted with a different radiology group, and after a sonogram was performed, learned that the abortion procedure had failed and that she was in her 28th week of pregnancy. Sheppard alleges that Dr. King had given her too small a dose of methotrexate to accomplish the abortion.
When Drs. King and Spector learned that Sheppard was still pregnant and that the fetus was at risk of birth defects due to exposure to methotrexate, they discussed with her the possibility of an out-of-state late-term abortion. Sheppard ultimately rejected that option and decided to carry the child to term. On March 3, 2000, infant plaintiff Jo'Ell Sheppard-Mobley was born, suffering from fetal methotrexate syndrome, manifested through serious congenital impairments. This action was commenced in Supreme Court on behalf of Sheppard, the infant and the infant's father, Lemuel Mobley, alleging malpractice by Drs. King, Spector and Kumari-Subaiya, as well as OGSRC and Promedica. In seven causes of action, the complaint alleges that infant plaintiff suffered severe physical injuries caused by defendants' failure to properly diagnose, care for and treat Sheppard during the course of her pregnancy. The complaint seeks to recover damages on behalf of the infant for his physical injuries and for the parents' loss of the child's services and medical expenses. On behalf of Sheppard, the complaint alleges physical and emotional injuries caused by defendants' alleged medical malpractice. Finally, as against Dr. King, OGSRC and Dr. Spector, the complaint alleges lack of informed consent in their treatment of Sheppard.
Defendants made motions for summary judgment dismissing various causes of action, the most pertinent of which was their motion to dismiss the sixth cause of action seeking damages for Sheppard's emotional distress. While the trial court granted defendants' motion, the Appellate Division overturned that decision. Noting that during the pendency of the appeal, this Court decided Broadnax/Fahey and thereby implicitly overruled Tebbutt v. Virostek, 65 N.Y.2d 931, 493 N.Y.S.2d 1010, 483 N.E.2d 1142 [1985], the Appellate Division concluded that even in the absence of physical injuries, Sheppard could recover damages for emotional distress caused by a violation of the duty of care owed to her while she was being treated during her pregnancy. The Court concluded that while Broadnax/Fahey involved the stillbirth or miscarriage due to alleged malpractice, this Court's analysis was also applicable to cases involving the live birth of a severely impaired child. Thus, the Court reinstated this cause of action, and granted defendants leave to appeal to this Court. We now modify the order of the Appellate Division by dismissing the sixth cause of action with leave to plaintiffs to replead that claim, and otherwise affirm.
Our decision in Broadnax/Fahey was intended to fill a gap created by our previous decision in Tebbutt which concerned the medical malpractice performed upon the body of an expectant mother resulting in a miscarriage or stillbirth. Our jurisprudence has long permitted infants who suffer a legally cognizable injury in the womb and survive the pregnancy to seek damages for their injuries (see Woods v. Lancet, 303 N.Y. 349, 102...
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