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The couple alleges that while the wife was a patient at the hospital


The couple alleges that while the wife was a patient at the hospital and under the care of various accused attending physicians during her pregnancy and delivery, the medical team was guilty of medical malpractice in failing to properly anticipate a footling breech delivery and provide competent physicians to deal with an emergency created at the time of birth. It is further alleged in the couple’s bill of particulars that the accused parties should have delivered the child by Caesarean section. Instead, it is contended that the accused parties chose a vaginal delivery which delayed the delivery and was extremely painful by reason of bilateral nuchal arms. As noted in the hospital records annexed to the motion papers, the delivery also involved the unsuccessful use of forceps, cervix stretching device and super pubic pressure.

Accordingly, the couple alleges carelessness, negligence and medical malpractice to each of the medical care team member as well as the hospital in the first cause of action. The complaint also claims that the mother and her infant were caused to suffer and sustain severe and serious physical, emotional and mental injuries. In the couple’s second cause of action, it is further alleged that the accused parties failed to obtain the informed consent of the mother regarding the consequences of the doctors’ actions during the delivery. The third cause of action by the complainant is for the alleged loss of services of his wife.

The accused parties submit that under the New York law, practiced in The Bronx as well as Brooklyn, there is no cause of action for emotional harm resulting indirectly through the reaction of a complainant to injury caused to another. Therefore, the complainant’s case, as stated on the woman’s emotional injuries resulting from the stillborn birth must be dismissed.

The accused parties contend that the complainant is in effect claiming only those indirect emotional injuries, as evidenced by her response in the bill of particulars to a demand for the delivery of stillborn child after enduring all the pains and discomforts of full term child bearing and delivery as well as severe emotional trauma including depressive reaction.

It is recognized by the accused parties that there are situations where a cause of action may be stated for emotional harm resulting directly to a complainant from the negligence of another. On the other hand, the accused parties argue that no cause of action is stated when emotional harm results indirectly through the reaction of the complainant to injury negligently caused to another person.

The couple alleges that due to the negligence of the accused parties or because of actions taken by them without the wife’s informed consent, the wife was caused to deliver a stillborn infant. No physical injuries are claimed. Rather, the wife seeks to recover solely for mental or emotional injuries and her husband seeks to recover for the loss of his wife’s services. The Special Term denied the accused parties’ motions for summary judgment. It is well established that even assuming the death of the fetus in the uterus was caused by the accused parties, the wife may not recover for emotional and psychic harm as a result of the stillborn birth because it is a wrongful act with the absence of independent physical injuries.

It is not claimed that the alleged medical malpractice which resulted in the physical injuries alleged in the amended bill of particulars in any way caused the stillbirth. With the absence of independent physical injuries, the wife may not recover for emotional and psychic harm as a result of the stillborn birth. In the instant case, the episiotomy was merely another aspect of the childbirth procedure itself, but was not a cause of the stillbirth so as to warrant recovery.

The accused parties argue that the complainant may not recover solely for emotional injuries caused by a stillbirth, and also may not recover for merely another aspect of the childbirth procedure itself when there is no real injury alleged. It is the position of the accused that every layman knows that the act of birth is routinely painful, and that the wife did not suffer any independent physical injuries. The complainants attempt to bolster the position by maintaining that a review of the hospital records will show that the wife was under general anesthesia for the delivery, and, therefore, cannot claim any independent physical injuries.

Under the circumstances of the case, when it is alleged that the wife independently suffered and endured excruciating pain and unnecessary injury, apart from the routine pains of childbirth, due to the negligence of the accused parties in failing to properly anticipate a footling breech delivery, in not performing a Caesarean section, and in failing to provide competent physicians to deal with the emergency at the time of birth, the wife was not merely a bystander but was as much a victim of the accused parties’ alleged medical malpractice as the stillborn fetus. It is alleged that the medical malpractice of the accused parties by delaying and prolonging delivery resulted in injuries to the wife as well as the stillbirth of her child.

For these reasons alone, the Court finds that there are issues capable of trial and cognizable under New York law which preclude summary disposition. If in fact the couple are able to prove that the wife suffered independent physical injuries as a result of the accused parties’ medical malpractice, then she would also be entitled to recover for any alleged mental injuries she sustained, including any emotional injuries attending the stillbirth, allegedly caused by the same medical malpractice, as a concomitant to the actual physical injuries she had suffered during the prolonged delivery.

The second cause of action is for the alleged lack of informed consent of the stillborn’s mother, and should not be summarily dismissed. Of course, it is well settled that an injured child has a right to an independent cause of action against a physician for in utero injuries stemming from the physician’s failure to obtain an informed consent, only upon birth. Since we are dealing with a stillbirth, the second cause of action relates only to the stillbirth’s mother. The third cause of action by the husband for the alleged loss of services of his wife also should not be dismissed.

The Court found that the mother contemporaneously perceived the tragic birth. In the modern view, actual observance of the accident is not required if there is otherwise an experiential perception of it, as distinguished from a learning of it from others after its occurrence. The Court applied the temporal proximity rule to the facts in a way which is especially appropriate to the facts.

Indeed, the Court can imagine no more integral an experience than that of a mother giving birth to a child through a protracted and difficult labor and delivery. She perceived that something was wrong, wrong enough to cause her to fear for her child’s life. In short, the complainant had an experiential perception of the accident.

For all the above reasons, the Court find that the mother, even with the absence independent physical injuries, has satisfied the criteria and her claims are cognizable under the New York zone of danger rule. Accordingly, if the claims are substantiated by the evidence upon trial, the mother would be entitled to recover for her asserted emotional distress and mental injuries.

The issues capable of trial of fact that have been raised should not be summarily dismissed. The motion by the accused for summary judgment is denied.

Nothing could be more painful than losing a wife or a child during delivery. When a family member becomes a victim of medical malpractice and birth injury, feel free to call the office of Stephen Bilkis and Associates and look for a NY Medical Malpractice Lawyer or a NYC Birth Injury Attorney. Let the New York Injury Attorney offer you sound legal advice that can help you determine the proper lawsuit to file.

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