Tebbutt v. Virostek

• Decision Date: 13 June 1985
• Citation: 493 N.Y.S.2d 1010,483 N.E.2d 1142,65 N.Y.2d 931
• Parties: , 483 N.E.2d 1142, 54 USLW 2020 Marta H. TEBBUTT et al., Appellants, v. Robert VIROSTEK, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 1010

493 N.Y.S.2d 1010

65 N.Y.2d 931, 483 N.E.2d 1142, 54 USLW 2020

Marta H. TEBBUTT et al., Appellants, v. Robert VIROSTEK, Respondent.

Court of Appeals of New York.

June 13, 1985.

Daniel H. Mahoney, Albany, for appellants.

Randall J. Ezick and Dianne Bresee Mayberger, Albany, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed.

Plaintiff Marta Tebbutt seeks to recover damages for her "pain, severe disappointment, anxiety, despondency, bitterness and suffering" attendant upon the stillbirth of her child. ^* Defendant allegedly caused the death of the fetus, unbeknownst to plaintiff, approximately one month earlier when he negligently performed an anniocentesis. Plaintiff alleges no physical injury distinct from that suffered by the fetus, nor, despite the suggestion in one of the dissenting opinions, has there been proof of these allegations.

The case before us is governed by Vaccaro v. Squibb Corp., 52 N.Y.2d 809, 436 N.Y.S.2d 871, 418 N.E.2d 386, in which a mother sought recovery for emotional injuries caused by harm done to her child in utero of which she did not learn until the birth, which occurred some time after the harm was inflicted. There, we rejected the contention that the defendants owed any duty to the mother. Similarly, in the case before us, we must reject the mother's claim for damages for emotional distress.

Nor do we accept plaintiffs' contention that recovery is warranted because Marta Tebbutt was placed within the zone of danger by defendant's actions. While recovery may be had by one suffering distress in consequence of the observation of the serious injury or death of a member of his or her immediate family from within the zone of danger, the observation must be contemporaneous with the conduct causing the injury or death, which plaintiffs at bar have not alleged (see, Bovsun v. Sanperi, 61 N.Y.2d 219, 233, 473 N.Y.S.2d 357, 461 N.E.2d 843). Plaintiffs also failed to establish the existence of a duty running from defendant to plaintiff Marta Tebbutt pursuant to Johnson v. State of New York, 37 N.Y.2d 378, 372 N.Y.S.2d 638, 334 N.E.2d 590 (duty of hospital to transmit truthfully information concerning a relative's death or funeral), which has been limited to its particular facts (Johnson v. Jamaica Hosp., 62 N.Y.2d 523, 530, 478 N.Y.S.2d 838, 467 N.E.2d 502).

The dissenters' reliance on Endresz v. Friedberg, 24 N.Y.2d 478, 301 N.Y.S.2d 65, 248 N.E.2d 901, and Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691, is misplaced. In Endresz, we held only that no action for wrongful death could be maintained by the personal representative of a stillborn fetus. We also noted that, if the defendants were negligent in causing the automobile accident out of which that action arose, the plaintiff mother could recover for physical and mental injuries she sustained, including emotional upset attending her stillbirths. However, the injuries the plaintiff mother sustained in that case were the direct result of defendants' breach of a clearly recognized duty to drive with a reasonable degree of care. Citation to Woods v. Lancet (supra) similarly begs the duty question, central to resolution of the present appeal. There, we held that an infant child, not his parents, could recover damages for injuries negligently inflicted while he was in utero. Our cases have consistently denied damages for emotional distress to parents of children so injured but born alive (e.g., Vaccaro v. Squibb Corp., 52 N.Y.2d 809, 436 N.Y.S.2d 871, 418 N.E.2d 386, supra ).

JASEN, Judge (dissenting).

The majority holds that a mother may not recover for emotional distress resulting from the stillbirth of her child, where the unborn child died as the result of the negligent penetrations of the womb by a physician in performing an amniocentesis. By holding that the physician's conduct fails to give rise to any cognizable cause of action, the majority relegates the unborn child to a juridical limbo, where negligent acts, with fatal effect, performed upon the child are neither compensated nor deterred.

The facts, gleaned from the complaint and presumed to be true for the purpose of determining the sufficiency of the claim, are as follows. In June 1980, Marta H. Tebbutt and her husband, Robert G. Tebbutt, were expecting their first child, and consulted with Dr. Robert Virostek. Dr. Virostek limited his practice to the specialty of gynecology and obstetrics. In order to insure the health of the unborn child, Dr. Virostek, on July 11, 1980, suggested that Marta, then 35 years of age, undergo amniocentesis. Dr. Virostek informed Mr. and Mrs. Tebbutt that amniocentesis would involve puncturing the womb with a needle syringe in order to draw fluid, but he assured them that the test had been done "hundreds of times without any negative effects."

At Saranac Lake General Hospital, on July 30, 1980, Dr. Virostek endeavored to perform the amniocentesis. He inserted a syringe into Marta's lower abdomen, approximately 4 1/2 inches below her navel. Dr. Virostek informed Marta that he was unable to extract any fluid, and he then inserted the syringe into her abdomen two more times. Prior to the amniocentesis, the fetal heart monitor showed the fetus to be viable and normal in size for a 16-week gestation. On August 22, 1980, at a regularly scheduled appointment, Marta appeared at Dr. Virostek's office, but he was not present. A nurse, however, performed a procedure to monitor the fetal heart beat, and she informed Marta that no heart beat could be detected. Upon inquiry by Marta on August 25, 1980, Dr. Virostek informed her that the laboratory report indicated that the amniotic fluid sample could not be evaluated due to an excessive amount of blood in the sample. On that date, Dr. Virostek further informed Marta that her unborn child was normal.

On August 30, 1980, Marta suffered cramps, pain and hemorrhaging. She met Dr. Virostek at the hospital on September 3, 1980, which was not a date upon which there was a scheduled appointment, and Dr. Virostek examined Marta with a fetal heart monitor. He informed Marta that he could not detect a fetal heart beat. The next day, Marta went to the Champlain Valley Physicians Hospital in Plattsburgh to have a sonogram performed to determine the status of the unborn child. After this procedure, the doctors in the Champlain Valley Hospital refused to tell Marta whether her child was dead or alive. Rather, they referred her back to Dr. Virostek. On September 5, 1980, Marta was examined by a gynecologist and obstetrician in Albany, who informed her that her child was dead. Marta entered the Albany Medical Center Hospital that afternoon, and on September 6, 1980, labor was induced and she was delivered of a stillborn male child. The autopsy performed on the stillborn child indicated that the child's size was consistent with a 16-week gestation and there were no growth abnormalities. Also, examination of the stillborn child revealed three hemorrhagic blisters, each approximately one centimeter in diameter. The Albany physician stated "that there is a possibility of a cause and effect relationship between the amniocentesis, the return of the bloody fluid at the time, and the subsequent fetal death".

Plaintiffs Marta and Robert Tebbutt ¹ commenced this action alleging, inter alia, medical malpractice and negligence in the manner in which defendant performed the amniocentesis. Marta alleged no physical injury distinct from that suffered by her unborn child and sought to recover for her "pain, severe disappointment, anxiety, despondency, bitterness, and suffering." Defendant, Dr. Virostek, moved for summary judgment on the ground that plaintiff's complaint, alleging only emotional distress, lacked merit as a matter of law. Special Term, relying upon Friedman v. Meyer, 90 A.D.2d 511, 454 N.Y.S.2d 909,appeal dismissed 59 N.Y.2d 763, granted defendant's motion and dismissed the complaint. The Appellate Division, Third Department, affirmed on "constraint" of Friedman and cases cited therein, while noting "we are sympathetic to plaintiff's action and, in fact, believe the better rule would recognize plaintiff's action". (Tebbutt v. Virostek, 102 A.D.2d 231, 477 N.Y.S.2d 776.) For the reasons that follow, I strongly recommend reversal.

We have previously recognized that an individual may recover damages for the negligent infliction of emotional or mental distress, even if unaccompanied by physical injury. (Johnson v. State of New York, 37 N.Y.2d 378, 372 N.Y.S.2d 638, 334 N.E.2d 590; Kennedy v. McKesson Co., 58 N.Y.2d 500, 504, 462 N.Y.S.2d 421, 448 N.E.2d 1332; Vara v. Drago, 24 A.D.2d 888, 264 N.Y.S.2d 660.) The nature of damages as purely psychic will not defeat the cause of action, provided the elements of a cognizable cause of action exist. (See, Tymann, Bystander's Recovery for Psychic Injury in New York, 32 Albany L.Rev. 489, 494; Becker v. Schwartz, 46 N.Y.2d 401, 421, 413 N.Y.S.2d 895, 386 N.E.2d 807 [Wachtler, J., dissenting].)

In this case, defendant contends that no recovery may be had for indirect emotional harm suffered as the result of injury to another. Plaintiff, in contrast, maintains that her emotional injuries result from the breach of a direct duty owed to her. The controversy before us has therefore been distilled into the simple inquiry of whether defendant owed plaintiff a duty of care.

As Chief Judge Wachtler has aptly noted, when a child is en ventre sa mere at the time of the commission of the tort, "there are two identifiable beings within the zone of danger each of whom is owed a duty independent of the other and each of whom may be directly injured." (Albala v. City of New York, 54 N.Y.2d 269, 272, 445 N.Y.S.2d 108, 429 N.E.2d 786; see, Becker v. Schwartz, 46 N.Y.2d 401, 412, 413 N.Y.S.2d 895, 386 N.E.2d 807, supra; 1 Pegalis and Wachsman, American Law of Medical Malpractice § 4:43.) In the instant action, the independent...