Miller v. Chalom, 710 N.Y.S.2d 154

Miller v. Chalom

710 N.Y.S.2d 154

N.Y. App. Div.

2000

Check Treatment

OPINION OF THE COURT

Carpinello, J.

This lаwsuit stems from events surrounding the birth of plaintiff Mitchell Miller on November 1, 1995. During the child’s birth, while performing an episiotomy1 on the mother, plaintiff Stacey Murphy, defendant accidentally cut off a portion of the child’s left index finger. In the second cause of action in this medical mаlpractice suit, Murphy seeks to recover personally for the “psychological pain and suffering” she sustained as a result of the injury to the child. Murphy claims that Supreme Court erroneously dismissed this claim. We disagree.

Defendant sought dismissal of the second causе of action on grounds that Murphy did not sustain an actual physical injury as a result of the episiotomy, that her physical well-being was never in danger and that she was not contemporaneously aware of the injury to the child. In response, it was asserted that Murphy was immediately aware of the child’s injury and that the episiotomy constituted an injury to her. There are, in essence, two separate theоries of liability being debated by the parties concerning Murphy’s attempt to recover for emotional injuries, namely, recovery by a mother for emotional injuries sustained as a result of injury to her child during childbirth and recovery for emotional injuries as a bystander under thе “zone of danger” rule. We address each seriatim.

The first theory is controlled by Tebbutt v Virostek (65 NY2d 931) and its progeny whereby it has become firmly established that, absent an independеnt physical injury to the mother, she may not recover for emotional damages caused by the negligence of a physician resulting in the death or injury to her child either in útero or postpartum (see, Saguid v Kingston Hosp., 213 AD2d 770, 771-772, lv dismissed 87 NY2d 861, lv dismissed and denied 88 NY2d 868; Scott v Capital Area Community Health Plan, 191 AD2d 772, 773, lv denied 82 NY2d *39656; Kakoullis v Harri H. Janssen, M.D., P. C., 188 AD2d 769, 770; Hayes v Record, 158 AD2d 874; Sceusa v Mastor, 135 AD2d 117, 119, lv dismissed 72 NY2d 909; Farago v Shulman, 104 AD2d 965, affd on mem below 65 NY2d 763; Friedman v Meyer, 90 AD2d 511, appeal dismissed 59 NY2d 763; see also, Vaccaro v Squibb Corp., 52 NY2d 809). Thus, in this case, the viability of Murphy’s claim for emotional damages hinges on whеther she is “able to prove ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that [she] suffered physical injury as a result of the malpractice that allegedly caused [the child’s injury]” (Saguid v Kingston Hosp., supra, аt 772). No allegations have been made nor proof tendered that Murphy sustained a medically cognizable physical injury beyond that naturally attendant to childbirth as a result of defendant’s negligent conduct (cf., Stiles v Sen, 152 AD2d 915).

Nor do we find, based upon language contained in Bauch v Verrilli (146 AD2d 835), that the episiotomy must be considered an injury to Murphy because the child was injured during the course thereof. There can be no doubt that the performance of the episiotomy was the occasion for the child’s injury in that, without the need for same, defendant would not have been wielding scissors in the birth canal. However, the episiotomy was not its сause. Rather, defendant’s use of the scissors caused two results: the intended cutting of Murphy’s perineum and the unintended severance оf the child’s finger. There is no medical evidence that the episiotomy itself, that is, the resulting cut in the perineum, was the cause of an injury tо Murphy (compare, Stiles v Sen, supra; Wittrock v Maimonides Med. Ctr. — Maimonides Hosp., 119 AD2d 748, lv denied 68 NY2d 607; Farago v Shulman, supra). Accordingly, under the rationale of the aforementioned casеs, the second cause of action was properly dismissed.

The parties also debate the elements of a closely analogous theory of tort liability, negligent infliction of emotional distress, commonly referred to as the “zone of danger” rule. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Specifically, Murphy claims that she can recover emotional damages by establishing a physical injury to herself contemporanеously with witnessing the injury to the child or by establishing that she was within the “zone of danger.” The “zone of danger” rule can be stated as follows: “[w]here a dеfendant negligently exposes a plaintiff to an unreasonable risk of bodily injury or death, the plaintiff may recover, as a proрer element of his or her damages, damages for injuries suffered in consequence of the observation of the serious injury or death of a member of his or her immediate family — assuming, of course, that it is *40established that the defendant’s conduct was a substantial factor bringing about such injury or death” (Bovsun v Sanperi, 61 NY2d 219, 230-231). Thus, recovery for consequential emotional damages under the “zone of danger” rule requires a showing that dеfendant’s negligent conduct exposed Murphy to an unreasonable risk of bodily harm (as opposed to an actual independent physical injury) and that she had a contemporaneous awareness of the injury to the child.

Given the evolution of decisional authority in the Tebbutt v Virostek (supra) line of cases which requires more than mere exposure to bodily harm but actual physical injury to a mother seeking emotional damages stemming from an injury ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍tó her child during childbirth, it appears that the “zone of danger” rule is simply inapplicable to birth cases.2 Notably, the First, Second and Fourth Departments have each found that the “zone of danger” rule is inapplicable in actions arising out of fetal injuries unaccompanied by independent physical injury to the mother (see, Guialdo v Allen, 171 AD2d 535, 537 [“the extension of the reasoning set forth in Bovsun * * * to actions arising out of fetal injury has been explicitly rejected”]; Sceusa v Mastor, 135 AD2d 117, 119-120, supra [“zone of danger” rule is inapplicable to “cases seeking damages for emotional distress caused by medical malpractice which has resulted in harm to an infant either prior to or at the time of delivery”]; Burgess v Miller, 124 AD2d 692, 693-694 [“the decisional law must be considered to have impliedly rejected Bovsun-type causes of action grounded upon fetal injuries unaccompanied by independent рhysical injury to the mother”]).

Even if the “zone of danger” rule was applicable, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍there is simply no evidence that Murphy was exposed to an unreason*41able risk of bodily harm during labor and delivery, despite the obvious injury to the child. The episiotomy, a medical procedure used routinely during the labor and delivery process, did not expose Murphy to an unreasonable risk of physical injury (cf., Stiles v Sen, 152 AD2d 915, supra). Said differently, while it was undoubtedly the need to perform an episiotomy on Murphy which resulted in defendant’s negligent act against the child, the episiotomy procedure itself did not expose Murphy to an unreasonable risk of bodily harm.

Cardona, P. J., Mercure, Spain and Rose, JJ., concur.

Ordered that the order is affirmed, without costs.

Notes

. An episiotomy is a medical procedure performed during childbirth whereby the pеrineum is cut with scissors to make a larger opening for the baby to be delivered.

. As noted in McBride v Brookdale Hosp. Med. Ctr. (130 Misc 2d 999, 1007), the “disposition not to apply the zone-of-danger rule” in the context of a claim to recover for emotional distress as a result of injury to a baby during childbirth is reflected in Howard v Lecher (42 NY2d 109). In Howard v Lecher (supra), the parents of a child who was born with Tay-Sachs disease and ultimately died from it sought damages for mental distress. After noting that the parents suffered no injury оther than anguish of observing their child suffer as a result of the defendant’s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍alleged negligence, the Court of Appeals stated: “Analogous, indeed stronger since the injuries would directly result from the tortious conduct of the doctor, would be a case in which the doctor, in delivering the infant from the mother’s womb, committed an act of negligence causing frightful injuries to the child, but in no manner physically injuring the parent. Were that parent to suffer psychic injury as a result of the doctor’s misfeasance, it is clear that there could be no recovery * * *. Nor can the parents recover in the present case” (id., at 112-113 [citation omitted]).