Fahey v. Canino

Cardona, P.J. Appeal from an order of the Supreme Court (Rumsey, J.), entered March 7, 2002 in Broome County, which granted defendants’ motion for summary judgment dismissing the complaint. In January 1999, plaintiff Debra Ann Fahey (hereinafter plaintiff), then approximately two months pregnant, began [1070] obstetrical care with defendant OBGYN Health Care Associates, P.C. At her initial appointment, defendant Anthony C. Canino, a partner at OBGYN, discovered, via an ultrasound, the absence of a fetal heartbeat. Subsequently, Canino performed dilation and curettage surgery (hereinafter D & C) to remove the demised fetus. In August 1999, plaintiff again sought obstetrical care from OBGYN and was advised by Canino that she was pregnant with twins. Plaintiff was scheduled for appointments at three-week intervals. At her regularly scheduled appointment on October 28, 1999, plaintiff met with defendant Patrick F. Ruggiero, another partner of OBGYN, and complained of lower abdominal pain and intermittent abdominal cramping. Ruggiero performed an ultrasound and attributed plaintiffs pain to the positioning of one of the fetuses against her sciatic nerve. Two days later, with her symptoms worsening and exacerbated by vomiting, plaintiff spoke to Canino who told her, in light of Ruggiero’s examination, that her symptoms were probably a result of her sciatic nerve and the vomiting was likely attributable to something she ate. He advised her to lie down and indicated that she could not be in /labor at that stage of her pregnancy — 18 weeks. Thereafter, while in the bathroom, plaintiff felt her water break and delivered one of the twins into her hand. She and the infant — still attached to its umbilical cord — were rushed to the hospital, where she spontaneously delivered the second twin. Both infants died and plaintiff underwent a D & C to remove an unexpelled placenta. In August 2000, plaintiff successfully delivered a six-week premature daughter with the assistance of another medical group. Later that month, plaintiff and her husband, derivatively, commenced this medical malpractice action against Canino, Ruggiero and OBGYN seeking damages for her physical and emotional injuries resulting from the loss of the twins. Following joinder of issue and discovery, Supreme Court granted defendants’ motion for summary judgment finding that plaintiffs failed to establish that plaintiff suffered a physical injury, independent of childbirth and, therefore, could not recover damages for resulting emotional distress. Plaintiffs appeal. It is settled law “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 útero or postpartum” (Miller v Chalom, 269 AD2d 37, 38 [2000]; see Tebbutt v Virostek, 65 NY2d 931 [1985]; Parsons v Chenango Mem. Hosp., 210 AD2d [1071] 847 [1994], lv dismissed 86 NY2d 778 [1995]; Scott v Capital Area Community Health Plan, 191 AD2d 772 [1993], lv denied 82 NY2d 656 [1993]; Farago v Shulman, 104 AD2d 965 [1984], affd on mem below 65 NY2d 763 [1985]). Here, in an attempt to distinguish this case from a childbirth case, plaintiffs argue, among other things, that plaintiff endured intense back pain, abdominal cramping, pressure and had to undergo a D & C as a result of defendants’ failure to diagnose and treat her incompetent cervix1 and/or recognize her premature labor. Plaintiffs note that the medical care provided during plaintiffs subsequent pregnancy, which included a cervical cerclage,2 resulted in the successful birth of her daughter. She maintains, therefore, that she suffered emotional distress because of what personally happened to her as distinct from the plight of her twins. In support of her position, plaintiffs rely upon Ferrara v Bernstein (179 AD2d 79 [1992], affd 81 NY2d 895 [1993]) and Canty v New York City Health & Hosps. Corp. (158 AD2d 271 [1990]). We do not find these cases determinative. In Ferrara, the plaintiff was not treated for pregnancy or childbirth. She went to the defendants for an abortion. Thereafter, she suffered a spontaneous miscarriage at a time when she had no reason to believe that she was still pregnant, having never been told by the defendants that the abortion was incomplete. Thus, as the First Department reasoned, the “plaintiffs emotional distress [did] not derive so much as from what happened to the fetus, but rather from what happened to her in undergoing a spontaneous miscarriage” (Ferrara v Bernstein, supra at 85 [emphasis in original]; see Scott v Capital Area Community Health Plan, supra at 775). In Canty, the plaintiff, who was seven months pregnant, gave birth at home after the defendant’s delay in responding to a succession of 911 calls. Each time, the plaintiffs husband was informed to remain calm in that help was on the way and an ambulance had been dispatched. The plaintiff lay neglected and helpless in a bed of blood with the baby encased in the amniotic sac with the placenta and umbilical cord attached between her legs for approximately IV2 hours from the time of the first 911 call. The baby died 24 hours later at the hospital. The First Department found that the plaintiff suffered shock and fright as a result of the defendant’s delay in responding, not as a result of viewing her infant’s plight. [1072] In both Ferrara and Canty, the defendants breached duties owed directly to the plaintiffs which caused their emotional distress (see generally Martinez v Long Is. Jewish Hillside Med. Ctr., 70 NY2d 697 [1987]). Here, however, plaintiff sought treatment from defendants for her pregnancy. Their breach, if any, was of the duty owed to provide her twins with proper prenatal care. Based upon our review of this record, we conclude that the emotional distress for which plaintiff seeks recovery derives from her concern over what happened to the fetuses and not for a breach of any duty that defendants owed to her. Therefore, in order for plaintiff to recover damages under the circumstances presented herein, she must demonstrate that she suffered an independent physical injury as required by Tebbutt v Virostek (65 NY2d 931, 932 [1985], supra) and its progeny. Plaintiff’s back pain, abdominal cramping and pressure, naturally associated with the labor of childbirth albeit premature, are not physical injuries (see e.g. Bubendey v Winthrop Univ. Hosp., 151 AD2d 713 [1989]). Furthermore, unrefuted medical evidence establishes that the D & C performed to remove the remaining placenta following the births is a medical procedure and cannot be considered a physical injury to plaintiff (cf. Sceusa v Mastor, 135 AD2d 117 [1988], lv dismissed 72 NY2d 909 [1988]). Notably, plaintiffs do not contend that the D & C was performed negligently. Because plaintiffs have failed to tender any evidence that plaintiff sustained a medically cognizable physical injury beyond that naturally attendant to childbirth, this cause of action falls within those cases which preclude the mother’s recovery of damages for emotional distress resulting from the death of a child in útero or postpartum (see Miller v Chalom, 269 AD2d 37 [2000], supra). Accordingly, in view of the present status of the law, the cause of action for emotional distress was properly dismissed, as was the derivative action on behalf of plaintiff’s husband (see Parsons v Chenango Mem. Hosp., 210 AD2d 84-7, 848 [1994], supra). We have considered plaintiffs’ remaining contentions and find that they lack merit. Spain, Carpinello and Kane, JJ., concur. Footnotes [1] An “incompetent cervix” lacks the ability to remain closed throughout the entire pregnancy, resulting in premature delivery. [2] In this procedure, the cervix is sutured so it remains closed until delivery.