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  • 11 - Commentary on Broadnax v. Gonzalez

  • from Part IV - Negligence and Vicarious Liability
  • Edited by Martha Chamallas, Ohio State University, Lucinda M. Finley, University at Buffalo, State University of New York
  • Book:
    Feminist Judgments: Rewritten Tort Opinions
    Published online:
    28 November 2020
    Print publication:
    10 December 2020, pp 237-260

  • Summary

    In Broadnax v. Gonzalez the court overruled precedent that denied pregnant women tort recovery when negligent prenatal care caused miscarriage or stillbirth. The decision held that doctors owe a direct duty of care to the pregnant patient that permits her to recover for the emotional harm from pregnancy loss. The rewritten feminist opinion comes to the same conclusion, but more thoroughly critiques the prior cases as treating women as separate from their fetuses, virtual bystanders to their own bodies. It also concludes that miscarriage or stillbirth harms women physically, not just emotionally, and that tort law should treat these cases like any other medical malpractice case. The accompanying commentary explores the conflicting ways courts have categorized women’s harm to limit recovery for prenatal malpractice, and argues that greater attention to women’s experience of pregnancy complications and harm loss would improve both medical outcomes and the gender equity of tort law.