Prado v. Catholic Medical Center of Brooklyn & Queens, Inc.

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from (1) a judgment of the Supreme Court, Queens County (Santucci, J.), entered March 19, 1987, which, upon an order of the same court dated February 26, 1987, granting the motion of the defendant Younus for summary judgment, dismissed the complaint insofar as asserted against him, and (2) a judgment of the same court dated April 29, 1987, which upon the order dated February 26, 1987, granting the respective cross motions of the defendants Catholic Medical Center of Brooklyn and Queens, Inc., St. John’s Queens Hospital, Kenel-Piere, De Slate and Sekar to dismiss the complaint insofar as asserted against them, dismissed the complaint as asserted against these defendants. The plaintiffs’ notice of appeal from the order is deemed a premature notice of appeal from the judgments (CPLR 5520 [c]). Ordered that the judgments are modified by deleting the provisions thereof which in effect dismissed that part of the second cause of action asserted in the complaint which seeks to recover damages allegedly suffered by the plaintiff Rita Prado as a result of being subjected to the fear of her own impending death and/or physical injury due to the alleged malpractice by the defendants, substituting therefor a provi [615] sion in the judgment as to Younus denying the motion, and in the judgment as to the remaining defendants denying the cross motions insofar as they sought dismissal of that part of the second cause of action, and adding thereto a provision severing that part of the second cause of action from the remainder of the action; as so modified, the judgments are affirmed insofar as appealed from, without costs or disbursements. This is an action to recover damages, inter alla, based upon the stillbirth of the plaintiffs’ child. The plaintiff Rita Prado had undergone a rectocystocele repair several years prior to her pregnancy. On her prenatal visit the defendants had decided that a vaginal childbirth would be dangerous and delivery of the fetus by Caesarean section was necessary. On February 9, 1983, the plaintiff, who was in labor, was admitted to the defendant St. John’s Hospital at 10:00 a.m. However, a Caesarean was not performed until approximately 1:30 p.m. due to the delay in performing an EKG, despite the fact that there had been a diagnosis of fetal distress. The baby was delivered stillborn. The claim that the plaintiff Rita Prado suffered prolonged pain cannot be actionable since it was not permanent and since it could be considered as pain naturally associated with the childbirth process itself (Wittrock v Maimonides Med. Center-Maimonides Hosp., 119 AD2d 748). It is well settled that absent independent physical injuries, a mother may not recover for emotional and psychic harm as a result of a stillbirth (Vaccaro v Squibb Corp., 52 NY2d 809; Friedman v Meyer, 90 AD2d 511, appeal dismissed 59 NY2d 763). However, Mrs. Prado’s fear of personal injury and imminent death arising from the possible destruction of the previous rectocystocele repair was not related to the childbirth process. "[A]n individual can recover for the psychic injuries suffered as a result of another’s negligence where there has been no physical impact if the party seeking recovery was subjected to the fear of physical injury as a direct result of the tortious conduct” (Howard v Lecher, 42 NY2d 109, 111). The fact that the damages or injuries in such a case may be difficult to prove is irrelevant, and "the question of proof in individual situations should not be the arbitrary basis upon which to bar all actions” (Battalia v State of New York, 10 NY2d 237, 242). Mrs. Prado’s fear of potential injury, which the plaintiffs alleged in their bill of particulars (i.e., "fear of her own impending death and/or immediate personal injury”), therefore, distinguishes this case from such cases as Gastwirth v [616] Rosenberg (117 AD2d 706), Farago v Shulman (104 AD2d 965), and Friedman v Meyer (supra). Accordingly, the plaintiff has a cause of action for being put in fear of her own physical injury based on her exceptional factual circumstance, i.e., the real possibility of the rupture of a prior successful rectocystocele repair, notwithstanding the fact that she cannot recover for any emotional injury resulting from the stillbirth and fear for the fetus. Mangano, J. P., Bracken and Balletta, JJ., concur.