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Supreme Court6/29/2000
Calendar Date: April 24, 2000
Appeal from an order of the Supreme Court (Demarest, J.), entered June 11, 1999 in St. Lawrence County, which granted defendant's motion for partial summary judgment dismissing the second cause of action of the complaint.
OPINION AND ORDER
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 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 malpractice 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 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 utero or postpartum (see, Saguid v. Kingston Hosp., 213 AD2d 770, 771-772, lv dismissed 87 NY2d 861, lv dismissed, lv denied 88 NY2d 868; Scott v Capital Area Community Health Plan, 191 AD2d 772, 773, lv denied 82 NY2d 656; Kakoullis v. Janssen, 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 whether she is "able to prove that suffered physical injury as a result of the malpractice that allegedly caused [the child's injury]" (Saguid v. Kingston Hosp., supra, at 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 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
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