 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Miller v. Chalom (N.Y.App.Div. 06/29/2000)
| [1] |
Supreme Court6/29/2000
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:
* * * 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 established 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 defendant'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 to her child during childbirth, it appears that the "zone of danger" rule is simply inapplicable to birth cases. 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 physical injury to the mother"] ).
Even if the "zone of danger" rule was applicable, there is simply no evidence that Murphy was exposed to an unreasonable 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.
Page 1 2 New York Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|