Bubendey v. Winthrop University Hospital

In an action to recover damages for personal injuries, etc., 714 based on medical malpractice, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Christ, J.), dated June 9, 1988, as granted the cross motion of the defendant Winthrop University Hospital for dismissal of the third cause of action as against it. Ordered that the order is affirmed insofar as appealed from, with costs. The gravamen of the plaintiffs’ third cause of action is that the defendant hospital’s failure to promptly admit the plaintiff Katherine Bubendey during the initial stages of her labor resulted in both severe brain damage to, and approximately four months later, the death of, her infant daughter Patricia Bubendey. Although the complaint alleges in the third cause of action that the plaintiff Katherine Bubendey suffered "severe and serious physical and psychological injuries” because of the defendants’ negligence, the bill of particulars states that the plaintiff Katherine Bubendey sustained "severe psychological trauma” as a result of the harm inflicted on her child. It is well settled that absent independent physical injuries to her person which directly cause the injury to her child during childbirth, a mother cannot recover damages for the attendant emotional and psychic harm (see, Tebbutt v Virostek, 65 NY2d 931; Vaccaro v Squibb Corp., 52 NY2d 809). Inasmuch as the sole injury alleged by Katherine Bubendey, i.e., that she had labor pain for many hours, was one neither independent of those naturally associated with the childbirth process itself nor the cause of the injury to the infant, it cannot serve as the basis for a claim alleging emotional distress. Accordingly, the third cause of action contained in the plaintiffs’ complaint was properly dismissed (see, Farago v Shulman, 104 AD2d 965, affd 65 NY2d 763; Prado v Catholic Med. Center, 145 AD2d 614; Sceusa v Mastor, 135 AD2d 117; Wittrock v Maimonides Med. Center-Maimonides Hosp., 119 AD2d 747). Mollen, P. J., Mangano, Kooper and Spatt, JJ., concur.