710 N.Y.S.2d 154 | N.Y. App. Div. | 2000
OPINION OF THE COURT
This lawsuit stems from events surrounding the birth of plaintiff Mitchell Miller on November 1, 1995. During the child’s birth, while performing an episiotomy
Defendant sought dismissal of the second cause 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 theories 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 the “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 independent 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
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 cause. Rather, defendant’s use of the scissors caused two results: the intended cutting of Murphy’s perineum and the unintended severance of 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 to 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 cases, 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 contemporaneously 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 defendant negligently exposes a plaintiff to an unreasonable risk of bodily injury or death, the plaintiff may recover, as a proper 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
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.
Even if the “zone of danger” rule was applicable, there is simply no evidence that Murphy was exposed to an unreason
Cardona, P. J., Mercure, Spain and Rose, JJ., concur.
Ordered that the order is affirmed, without costs.
. An episiotomy is a medical procedure performed during childbirth whereby the perineum 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 other 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]).