Law Updates

Live Birth Bars Mom’s Emotional Harm Claim, NY Judges Say
By: Ryan Perry

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A New York state appeals court affirmed a lower court's decision on Wednesday to reject a woman's emotional harm claim over the death of her daughter shortly after birth, saying precedent bars the mother's lawsuit even if her baby never gained consciousness.

Anneya Ward sued Dr. Chista Safajou and Vassar Brothers Hospital, among others, when her infant daughter Ahstarr Nugent died eight days after delivery in 2007. A judge in Putnam County ruled against Ward in 2014, saying that New York malpractice law doesn't allow a mother to claim emotional damages when she isn't physically harmed and her baby is born alive.

Ward's lawyer told the appeals division's Second Judicial Department that there was still room for her to win damages for emotional distress, even though New York's highest court only allowed women to recover on those grounds when their fetuses are stillborn in a 2004 decision. But the appellate court said Nugent's live birth meant the estate of Ward's daughter had the claim in this case, not Ward herself, as the Court of Appeals made clear in its Sheppard-Mobley decision in 2005.

"In Sheppard-Mobley v. King, the court declined to broaden that narrow class to cases where the fetus is born alive, noting that ‘a child born alive may bring a medical malpractice action for physical injuries inflicted in the womb,'" the court said. "The instant case falls squarely within Sheppard-Mobley."

According to the hospital's brief, Ward arrived at Vassar Brothers Hospital around 5 p.m. on Nov. 27, 2007, and her baby was delivered by C-section 20 minutes later after doctors noticed the fetal heartbeat was abnormally slow. Nugent's Apgar score — a quick assessment of infant health — was very low in the minutes after birth, however, and she was transferred to a neonatal intensive care unit. She died on Dec. 5.

Ward had argued at the trial court that the Second Department's 2009 decision in Amin v. Soliman, an emotional distress case where the child's live birth was called into question, cut in her favor. But Judge Lewis J. Lubell said there was "no indication" that the child's consciousness or lack thereof played any role in that case, noting that another case where the child was born alive was tossed on similar grounds.

Timothy S. Brennan, an attorney for the hospital, told Law360 that the case raised an interesting issue, but said he believes it was correctly decided. Attorneys for Ward and the doctors didn't respond to requests for comment late Wednesday.

Judges Ruth C. Balkin, Thomas A. Dickerson, Sylvia O. Hinds-Radix and Valerie Brathwaite Nelson issued the decision.

Ward is represented by John H. Fisher of John H. Fisher PC and Michael J. Hutter of Powers & Santola LLP.

Two doctors are represented by Mary Pat Burke and Jennifer Bennice of Westermann Sheehy Keenan Samaan & Aydelott LLP.

Vassar Brothers is represented by Timothy S. Brennan of Phelan Phelan & Danek LLP.

The case is Ward v. Safajou et al., index number 1386/10, in the Supreme Court of the State of New York, Appellate Division, Second Judicial Department.