The Legal Status of a Fetus:

BROADNAX v. GONZALEZ, et al. and  FAHEY v. CANINO, et al. ,

2 N.Y.3d 148; 809 N.E.2d 645; 777 N.Y.S.2d 416

Decided April 1, 2004

                  

            In 1994, Karen Broadnax was approximately eight and one half months pregnant. Early one morning she experienced pain and bleeding.  She telephoned her nurse midwife  who advised her to come to the birthing center.  The nurse midwife telephoned Dr. Gonzalez who told them to drive to a Manhattan hospital rather than go to the hospital that was directly across the street from the birthing center.  Three hours after her initial call to the nurse midwife, Dr. Gonzalez  met Ms. Broadnax at the hospital where he could no longer detect a fetal heartbeat.  Shortly thereafter,  Mrs. Broadnax delivered a full term, stillborn baby girl. Mrs. Broadnax sued Dr. Gonzalez, as well as the nurse midwife and birthing center for emotional injury brought about by medical malpractice.

           

            In 1999, Debra Fahey was approximately four and one half months pregnant with twins when she told her doctor that she was feeling pain and cramping in her lower abdomen.  The doctor attributed the discomfort to pressure on her sciatic nerve.  Over the next two days the pain worsened and she began vomiting. She called her physician and he advised her to lie down.  Two hours later, while sitting on the toilet, Mrs. Fahey delivered one of the twins into her own hands.  Still connected to the fetus by the umbilical cord, she was transported to the hospital where she delivered the second twin.  Both infants died.  Mrs. Fahey sued her physicians for emotional injury due to medical malpractice.

 

            Each of these cases involves a woman’s claim of emotional injury brought about by medical malpractice causing her fetus’s death before delivery.  Until this case was decided New York law recognized that a viable fetus (one who could survive outside the womb) would have a claim against a physician whose malpractice injured him/her while in utero so long as he/she were born alive.  But, if the fetus died before he/she were born, no claim could be made on behalf of the fetus nor the mother against the doctor whose malpractice may have caused its death.

 

            In a 6-1 decision, the New York State Court of Appeals decided that a mother who suffers the loss of a fetus may sue her physician for emotional injury due to malpractice, even if the fetus dies before birth and even if the mother does not suffer a physical injury.  A physician holds a duty of care to a fetus, as well as to the mother he or she is treating because “the health of the mother and fetus are linked.”  The Court did not change the legal rights or status of a fetus and specifically declined to permit a parent to sue for wrongful death of a fetus who dies before birth due to medical malpractice. 

 

            The dissenting judge, Judge Read, was concerned that the doctrine of stare decisis  is in danger when the Court abandons its precedents as it did in this case.  “Stare decisis teaches that common law decisions should stand as precedents for guidance in cases arising in the future for substantial reasons of stability and legitimacy.”  Judge Read also expressed a concern that this decision will expose physicians to greater liability in the care and treatment of pregnant women.

 

 

 

 

 

 

 

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                                            Learning Activities                                                                                                               

 

 

 

Terms to Know

 

•                     precedent

•                     stare decisis

•                     viability

 

 

Critical Thinking

 

Should the father of the fetus have a claim similar to the mother’s?  If so, what about if a mother chooses to have an abortion and the father disagrees?  Would he be able to make a claim for emotional distress against the mother or the medical professional performing the abortion? Should it matter how “old” the fetus is at the time of the abortion?

       

      In sequence…

 

•                     Students should look at the summary and the reason the court decided as it did, i.e. that the health of the fetus and mother are linked. 

•                     Students could persuasively argue that the emotional injury to the father in losing a fetus is equal to a mother’s.  In both Broadnax and Fahey the fathers joined in the lawsuits, however, the court found that the doctor treating the expectant mother has no “duty of care” to the father. 

•                     The Court cites to a case holding that when a viable fetus is injured in utero it could make a claim for its injuries once it is born.  The last question asks students to explore whether viability should make a difference. 

 

Analytical Thinking

 

There is a civil claim for wrongful death often brought by the families of people who die as a result of medical malpractice or are murdered. Broadnax and Fahey each permitted a prospective mother to make a claim against a doctor for her emotional distress when her fetus died allegedly as a result of the doctor’s malpractice.   Should they also be permitted to make a claim for wrongful death? In answering this question consider what Roe v. Wade (410 U.S. 113 (1973)) says about the legal status of the unborn. 

 

          Roe v. Wade says that the unborn are not legal persons under the United States Constitution.  Students should apply this precedent to wrongful death.  They could consider the idea that one has to live as a legal person before one can legally “die.”   Students can also decided that Roe v. Wade is about abortion and shouldn’t apply to instances like those in Broadnax. 

 

Debate Topic: What is more important in judicial decision making: the  principle of stare decisis or judicial discretion?

 

          Judicial discretion allows the court to look at each case and decide it on its own merits, maintaining a “living” body of law that is adaptable to the current times and circumstances.  Stare decisis promotes stability, legitimacy, and predictability.  It ensures that people know what the law is. The topic gives students the opportunity to consider the role of the courts in public policymaking.  Students can also consider the role of the courts vs. the legislature demonstrating an understanding of how each branch works.  For example, they can explain that if the court maintains strict adherence to stare decisis, the legislature can respond and change the law.