Khan v. Hip Hosp., Inc.

Decision Date28 March 1985
Citation127 Misc.2d 1063,487 N.Y.S.2d 700
PartiesAsghari KHAN, et al. v. HIP HOSPITAL, INC., et al.
CourtNew York Supreme Court

Morton Povman, P.C., Forest Hills, for plaintiffs.

Bower & Gardner, New York City, for defendants Hip, Drs. Allen and Edeisheim.


Can the plaintiff mother of a stillborn child, who alleges that she was caused to suffer and endure excruciating pain and unnecessary injury and delay by reason of the malpractice of the defendants, recover for any alleged emotional and psychic harm resulting from the stillborn birth?

This is one of the intriguing questions that the Court must address in this motion by the defendants Hip Hospital, Inc., Dr. Allen and Dr. Edeisheim for an order pursuant to CPLR 3212 of summary judgment dismissing this case for failure to state a cause of action cognizable under New York law.

It appears that this medical malpractice action arises from the obstetrical care rendered to the plaintiff Asghari Khan at LaGuardia/Hip Hospital (hereinafter referred to as "defendant hospital on June 2, 1981. On that date the plaintiff Mrs. Khan was delivered of a stillborn fetus at the defendant hospital.

The plaintiffs allege that while plaintiff Mrs. Khan was a patient at defendant hospital and under the care of various defendant physicians attending to her pregnancy and her delivery, the defendants were guilty of 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 plaintiffs' bill of particulars that the defendants should have delivered the child by Caesarean section. Instead, it is contended, that the defendants chose a vaginal delivery which delayed delivery, and was extremely painful by reason of bilateral nuchal arms. As noted in the hospital records annexed to the motion papers, this delivery also involved the unsuccessful use of Piper forceps, cervix stretching and super pubic pressure. Accordingly, the plaintiffs allege in the first cause of action of the complaint that "[s]olely by reason of the carelessness, negligence and medical malpractice of defendants, and each of them, in the medical care, treatment and services rendered to plaintiff, Asghari Khan, and her infant child being delivered, was caused to suffer and sustain severe and serious physical, emotional and mental injuries".

In the plaintiffs' second cause of action, it is further alleged that the defendants failed to obtain the informed consent of the plaintiff Asghari Khan regarding the consequences of the defendants' actions during the delivery.

The third cause of action by the plaintiff Mohammad Khan is a derivative one for the alleged loss of services of his wife, Asghari Khan.

The movant defendants submit that under New York law, there is no cause of action for emotional harm resulting indirectly through the reaction of a plaintiff to injury caused to another, and, therefore, the plaintiffs' case, as predicated on Mrs. Khan's emotional injuries resulting from the stillborn birth must be dismissed pursuant to CPLR 3212.

The defendants contend that the plaintiff Asghari Khan is in effect claiming only those indirect emotional injuries, as evidenced by her response in the bill of particulars to a demand for the damages claimed, as follows: "Delivery of stillborn child after enduring all the pains and discomforts of full term child bearing and delivery; severe emotional trauma, including depressive reaction".

It is recognized by the defendants that there are situations where a cause of action may be stated for emotional harm resulting directly to a plaintiff from the negligence of another. In Johnson v. State of New York, 37 N.Y.2d 378, 372 N.Y.S.2d 638, 334 N.E.2d 590, for example, recovery was permitted where the defendant hospital had negligently sent a false message to the plaintiff announcing her mother's death. Similarly, in Battalla v. State of New York, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729, recovery was permitted where the infant plaintiff had suffered emotional trauma as the result of the defendant's failure to secure the restraining belt on a chairlift occupied by the plaintiff.

On the other hand, defendants argue that no cause of action is stated in the instant action, where emotional harm results indirectly through the reaction of the plaintiff to injury negligently caused to another. The defendants cite the following cases as illustrative of this New York rule: Lafferty v. Manhasset Medical Center Hospital, 54 N.Y.2d 277, 445 N.Y.S.2d 111, 429 N.E.2d 789, where the plaintiff suffered emotional distress when she witnessed a negligently performed blood transfusion; Vaccaro v. Squibb Corp., 52 N.Y.2d 809, 436 N.Y.S.2d 871, 418 N.E.2d 386, where drugs administered to the mother during her pregnancy caused serious birth defects to her child, resulting in emotional injury to the mother and father; Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807, and Howard v. Lecher, 42 N.Y.2d 109, 397 N.Y.S.2d 363, 366 N.E.2d 64, where the plaintiffs suffered emotional distress because of birth defects to their children caused by negligent medical treatment given to the mothers; and Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419, where the mother sustained emotional trauma when she heard the defendant's automobile strike her child. In all these cases, the mental and emotional injuries experienced by a "bystander" as a consequence of direct injuries to another were not recoverable.

To reinforce their position, the movant defendants cite two recent Appellate Division, Second Department, cases which dismissed claims allegedly identical to the claim presented herein. In Friedman v. Meyer, 90 A.D.2d 511-512, 454 N.Y.S.2d 909, appeal dismissed 59 N.Y.2d 763 the Court stated:

"Plaintiffs allege that due to the negligence of defendants, or because of actions taken by them without the plaintiff wife's informed consent, the plaintiff wife was caused to deliver a stillborn infant. No physical injuries are claimed. Rather, the plaintiff wife seeks to recover solely for mental or emotional injuries and her husband seeks to recover for the loss of his wife's services. Special Term denied defendants' motions for summary judgment. We reverse. It is by now well established that even assuming the death of the fetus in utero was caused by defendants' wrongful acts, absent independent physical injuries, the plaintiff wife may not recover for emotional and psychic harm as a result of the stillborn birth (see Vaccaro v. Squibb Corp., 52 NY2d 809 [436 N.Y.S.2d 871, 418 N.E.2d 386]; Becker v. Schwartz, 46 NY2d 401 [413 N.Y.S.2d 895, 386 N.E.2d 807]; Howard v. Lecher, 42 NY2d 109 [397 N.Y.S.2d 363, 366 N.E.2d 64]; see, also, Lafferty v. Manhasset Med. Center Hosp., 54 NY2d 277 [445 N.Y.S.2d 111, 429 N.E.2d 789]; Aquilio v. Nelson, 78 AD2d 195 )."

In another very recent Appellate Division case, Farago v. Shulman, 104 A.D.2d 965, 480 N.Y.S.2d 758, the plaintiff mother sought to recover damages for medical malpractice resulting in the stillbirth of her child, in addition to blood loss and pain for an allegedly improper performance of an episiotomy and its subsequent repair. The Court ruled:

"In the case at bar, it is not claimed that the alleged malpractice which resulted in the physical injuries alleged in the amended bill of particulars in any way caused the stillbirth * * * 'absent independent physical injuries, the plaintiff 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." (supra, p. 966, 480 N.Y.S.2d 758.)

The movant defendants argue that pursuant to Friedman and Farago, the plaintiff herein 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" where there is no real injury alleged. It is the position of the movants that "every layman knows that the act of birth is routinely painful", and that the plaintiff Mrs. Khan did not suffer any "independent physical injuries". The movants attempt to bolster this position by maintaining that a review of the hospital records will show that the plaintiff Mrs. Khan was under general anesthesia for the delivery, and, therefore, cannot claim any independent physical injuries.

It would appear to this Court that as cogent as these arguments of the movant defendants are, they are in fact "routine", and a careful analysis of the alleged circumstances of this case will clearly distinguish the law to be applied in this case from the others.

In Endresz v. Friedberg, 24 N.Y.2d 478, 301 N.Y.S.2d 65, 248 N.E.2d 901, the plaintiff, seven months pregnant, was injured in an automobile accident and two days later was delivered of stillborn twins. Although this decision is most known for its ruling that distributees of a stillborn fetus may not recover under the wrongful death statute, there is another important torts' rule presented therein, as follows:

"As indicated, however, the parents do not go completely unrecompensed. If the defendants herein were negligent, Mrs. Endresz may recover for the injuries she sustained, both physical and mental, including the emotional upset attending the stillbirths. And the plaintiff Steve Endresz retains his derivative action for the loss of her services and consortium."

(Endresz v. Friedberg, 24 N.Y.2d 478, 487, 301 N.Y.S.2d 65, 248 N.E.2d 901, supra.)

This rule is elaborated therein as follows:

"What the court wrote in the Witrak [v. Nassau Elec. R.R. Co.] case (52 App.Div. 234 , supra ) points the conclusion here (p. 236 ):

'The plaintiff is entitled to recovery for the physical injury which she has...

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    • Court of Appeals of Texas
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    ...harm, the mother suffers severe and genuine injuries in the form of emotional distress and mental anguish); Khan v. Hip Hosp., Inc., 127 Misc.2d 1063, 487 N.Y.S.2d 700, 704 (1985) (mother, whose only alleged injury was extreme pain of breech delivery, was as much a victim of the defendant's......
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    ...was never alive could not be considered a member of the family and could not be within the zone of danger (but see, Khan v. HIP Hosp., 127 Misc.2d 1063, 487 N.Y.S.2d 700). On a motion such as the one before the court, plaintiffs' allegations must be assumed to be true. In addition, a reques......
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    • United States State Supreme Court (New York)
    • August 28, 1995
    ...N.E.2d 843 (1984). While that theory has been upheld in other cases involving the death of a fetus (see, e.g., Khan v. Hip Hospital, Inc., 127 Misc.2d 1063, 487 N.Y.S.2d 700 (Sup.Ct.Queens Co.1985), the Fourth Department has held it inapplicable to an action by a mother against her obstetri......

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