Tebbutt v. Virostek

• Decision Date: 21 June 1984
• Citation: 102 A.D.2d 231,477 N.Y.S.2d 776
• Parties: Marta H. TEBBUTT et al., Appellants, v. Robert VIROSTEK, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 776

477 N.Y.S.2d 776

102 A.D.2d 231

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

Supreme Court, Appellate Division,

Third Department.

June 21, 1984.

Daniel H. Mahoney, Albany, for appellants.

Carter, Conboy, Bardwell, Case & Blackmore, Albany (Dianne Bresee Mayberger, Albany, of counsel), for respondent.

Before MAIN, J.P., and CASEY, YESAWICH and HARVEY, JJ.

OPINION FOR AFFIRMANCE

MAIN, Justice Presiding.

Plaintiff Marta H. Tebbutt commenced this action to recover only for her emotional distress resulting from the alleged medical malpractice and negligence of defendant which caused the stillbirth of her child. ¹ Special Term dismissed the complaint as insufficient as a matter of law. Although we are sympathetic to plaintiff's action and, in fact, believe the better rule would recognize plaintiff's action, we are constrained to affirm in light of recent decisions by the Court of Appeals.

Defendant, a licensed physician, was caring for plaintiff who, at 35 years of age, was pregnant. In order to ensure that the fetus was healthy, defendant suggested that plaintiff undergo amniocentesis. On July 30, 1980, when the fetus was approximately 16 weeks old, defendant performed the procedure, but the resulting laboratory report indicated that the amniotic fluid sample could not be evaluated due to an excessive amount of blood in the sample. During a subsequent physical examination, a fetal heartbeat could not be located. Plaintiff then saw another doctor, who concluded that the fetus was dead. On September 6, 1980, labor was induced and a stillborn child, compatible in size with a 16-week gestation period, was delivered. Examination of the stillborn child revealed three hemorrhagic blebs, each about one centimeter in diameter, and the second doctor indicated "that there is a possibility of a cause and effect relationship between the amniocentesis, the return of bloody fluid at the time, and the subsequent fetal death". Plaintiff then commenced this action alleging, inter alia, medical malpractice and negligence in the manner in which defendant performed the amniocentesis. Plaintiff alleged no physical injury distinct from that suffered by the fetus and sought to recover for her "pain, severe disappointment, anxiety, despondency, bitterness, and suffering". Defendant 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 on Friedman v. Meyer, 90 A.D.2d 511, 454 N.Y.S.2d 909, app. dsmd. 59 N.Y.2d 763, granted defendant's motion and dismissed the complaint. This appeal followed.

At oral argument, plaintiff claimed that she was entitled to recover for emotional distress under Bovsun v. Sanperi, 61 N.Y.2d 219, 473 N.Y.S.2d 357, 461 N.E.2d 843 and under Johnson v. State of New York, 37 N.Y.2d 378, 372 N.Y.S.2d 638, 334 N.E.2d 590. In Bovsun, the Court of Appeals recently recognized the right of a plaintiff, to whom the defendant has owed but breached a duty of reasonable care, to recover as an element of his or her damages those damages attributable to emotional distress caused by contemporaneous observation of injury or death of a member of the immediate family caused by the same conduct of the defendant (Bovsun v. Sanperi, supra, 61 N.Y.2d, p. 233, 473 N.Y.S.2d 357, 461 N.E.2d 843). We reject plaintiff's argument that damages for emotional distress can be recovered under Bovsun, which requires a contemporaneous observation, or at least an instantaneous awareness (id.), of the injury or death. In this case, plaintiff did not become aware of any problem with the fetus for several weeks after the alleged negligence of defendant. Thus, there was no contemporaneous observation or instantaneous awareness of injury or death and, even if the other elements of the Bovsun rule were satisfied, the failure on this aspect prevents plaintiff from recovery thereunder. A more expansive interpretation of "contemporaneous observation" should come not from us, but the Court of Appeals.

More troublesome to us is plaintiff's contention that recovery for emotional distress is permitted under Johnson v. State of New York, 37 N.Y.2d 378, 372 N.Y.S.2d 638, 334 N.E.2d 590, (supra ) because her emotional distress results directly from the alleged breach of a duty owed by defendant to her. The Second Department apparently rejected this argument in Friedman v. Meyer, 90 A.D.2d 511, 454 N.Y.S.2d 909, supra, relied on by Special Term, wherein the court held 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" (id. at 512, 454 N.Y.S.2d 909). The Second Department's decision in Friedman was based on decisions of the Court of Appeals which concluded that parents could not recover for their emotional distress, allegedly resulting from the claimed negligence of a doctor which caused their children to be born with severe birth defects, because there is no cause of action for emotional distress incurred as a result of the physical injury of a third party and the emotional distress of the parents was only incidental to the injuries of the children (see Vaccaro v. Squibb Corp., 52 N.Y.2d 809, 436 N.Y.S.2d 871, 418 N.E.2d 386; Becker v. Schwartz, 46 N.Y.2d 401, 413-415, 413 N.Y.S.2d 895, 386 N.E.2d 807; Howard v. Lecher, 42 N.Y.2d 109, 397 N.Y.S.2d 363, 366 N.E.2d 64). ² Most relevant of these cases is Vaccaro v. Squibb Corp. (supra ), in which the Court of Appeals dismissed a complaint alleging only emotional distress by the mother of a child born with severe birth defects as the claimed result of the mother's ingestion of a drug while the child wasin utero. In so holding, the court established that even where affirmative treatment, such as the prescription or administration of drugs as opposed to the mere failure of advice or diagnosis (see Becker v. Schwartz, supra; Howard v. Lecher, supra ), results in injury to the child, third parties such as the child's parents cannot recover for their solely incidental emotional distress despite the breach of a duty owed to them.

Although the alleged injury to the child in Vaccaro is similar to that in this case, in that they both occurred while the children were in utero, our problem in applying the rule in...