TEBBUTT v. VIROSTEK

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 amniocentesis. 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), 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). 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 [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).

The dissenters' reliance on Endresz v Friedberg ( 24 N.Y.2d 478) and Woods v Lancet ( 303 N.Y. 349) 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, supra).

JASEN, J. (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 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, 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.) 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; Kennedy v McKesson Co., 58 N.Y.2d 500, 504; Vara v Drago, 24 A.D.2d 888.) 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 [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; see, Becker v Schwartz, 46 N.Y.2d 401, 412, supra; 1 Pegalis and Wachsman, American Law of Medical Malpractice § 4:43.) In the instant action, the independent duty flowing from the physician to the mother arises from the professional relationship existing between Marta Tebbutt and Dr. Virostek, and by virtue of the physiological and biological bond existing between the mother and her unborn child. Dr. Virostek rendered medical care and advice solely to Marta Tebbutt for the purpose of assisting her in making informed decisions to protect the development and safety of her unborn child. At the time of the commission of the tortious act, there was but one patient to whom defendant owed an absolute duty of care pursuant to a professional relationship: Marta Tebbutt. ( See, Endresz v Friedberg, 24 N.Y.2d 478, 485-486; compare, Johnson v Jamaica Hosp., 62 N.Y.2d 523; Vacarro v Squibb Corp., 52 N.Y.2d 809.) The interests of the mother and the unborn child are intertwined by nature during the mother's pregnancy. Due to these relationships, a tortious act, which results in the death of an unborn child, represents a breach of a direct duty to the mother. Defendant's infringement upon the mother's freedom from mental distress was occasioned by the breach of a distinct and independent duty flowing to the mother.

Concomitant with the view that the mother is owed a distinct duty of care, women have traditionally been given recovery for their own injuries caused by the stillbirth or miscarriage. (Prosser and Keeton, Torts, at 369, n 30 [5th ed 1984].) In New York, the mother's immediate mental distress inflicted by the death of the unborn child has unequivocally been recognized as a cognizable element of the mother's independent injuries. ( Endresz v Friedberg, 24 N.Y.2d 478, 487, supra; Butler v Manhattan Ry. Co., 143 N.Y. 417, 420; Matter of Logan, 3 N.Y.2d 800, affg 2 A.D.2d 842, affg 4 Misc.2d 283; Witrak v Nassau Elec. R.R. Co., 52 App. Div. 234 [Bartlett, J.].) Compensation for the mother's emotional distress attendant to the stillbirth is allowed by the vast majority of sister states and uniformly recognized by scholarly commentators. ( See, e.g., Tunnicliffe v Bay Cities Consol. Ry. Co., 102 Mich. 624, 629-630, 61 N.W. 11; Snow v Allen, 227 Ala. 615, 151 So. 468; Graf v Taggert, 43 N.J. 303, 312-313, 204 A.2d 140; Finer v Nichols, 158 Mo App 539, 138 S.W. 889; Panagopoulous v Martin, 295 F. Supp. 220, 227 [applying W Va law]; McKillip v Zimmerman, 191 N.W.2d 706, 709 [Iowa]; Stafford v Roadway Tr. Co., 70 F. Supp. 555, 570 [applying Pa law], mod on other grounds 165 F.2d 920; Mone v Greyhound Lines, 368 Mass. 354, 359, 331 N.E.2d 916, 918-919; Occhipinti v Rheem Mfg. Co., 252 Miss. 172, 172 So.2d 186; Prescott v Robinson, 74 N.H. 460, 69 A 522; Marko v Philadelphia Transp. Co., 420 Pa. 124, 125, 216 A.2d 502, 503-504; Ezell v Morrison, 380 So.2d 664 [La App]; see, Recent Developments, Torts-Wrongful Death — Unborn Child, 70 Mich L Rev 729, 749; Recent Developments, Torts-Wrongful Death — Recovery for Wrongful Death of a Stillborn Fetus Examined, 21 Vill L Rev 994, 999; Friedman, Legal Implications of Amniocentesis, 123 U of Pa L Rev 92, 144, n 261; Note, Recovery for the Tortious Death of the Unborn, 33 SC L Rev 797, 811; 1935 Report of N Y Law Rev Commn, Liability for Inflicting Injuries On a Child En Ventre Sa Mere 453, 470; Thornton McNiece, Torts, 33 N.Y.U L Rev 165, 173.)

Our decision in Endresz v Friedberg ( supra) is controlling upon the question presented by this appeal. In Endresz, we held that there is no right of recovery under this State's wrongful death statute by the personal representative of a stillborn child who died as the result of injuries received while en ventre sa mere. Plaintiff, Janice Endresz, was seven months pregnant when injured in an automobile accident in the winter of 1965. Two days after the accident, Janice was delivered of stillborn twins, a male and a female. While wrongful death recovery for the deaths of their unborn children was barred, Chief Judge Fuld, speaking for the court, emphasized that the parents would not be unrecompensed for their tragic loss: "[T]he mother may sue for any injury which she sustained in her own person, including her suffering as a result of the stillbirth, and the father for loss of her services and consortium" (24 N.Y.2d, at p 484). In an effort to demonstrate that the parents are entitled to recovery for damages suffered in their own right, where the death of their children was caused by a third party's wrongful act, Chief Judge Fuld continued: "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." ( 24 N.Y.2d 478, at p 487 [emphasis supplied].)

The ratio decidendi of Endresz manifestly contemplated a mother's recovery for her own mental and physical injuries immediately arising from the stillbirths. Recovery of such damages was also viewed by the Endresz court as a means by which to vitiate the harshness of denial of wrongful death damages. The majority today, however, disregards the Endresz view, and the policies which that decision represents. Adherence today to the Endresz view is compelled by more than due respect to the doctrine of stare decisis. Denial of recovery to the mother for her emotional distress resulting from the stillbirth of her child, which was caused by the negligent conduct of defendant, effectively immunizes the defendant from all liability for his negligent conduct with fatal effect. Denial of recovery for emotional distress creates an anomalous situation, to wit: liability is imposed where defendant's negligence caused mere injury to the subsequently born child ( Woods v Lancet, 303 N.Y. 349), while all liability evaporates when the negligence has had fatal effect. This, I submit, is unjust and unwise.

When the majority's view is analyzed in terms of the conceptual framework established by this court to address prenatal torts, the logical poverty of its holding is manifest. A stillborn child has not been deemed a "person" to whom a duty of care flowed for purposes of the wrongful death statute. ( Endresz v Friedberg, supra.) The majority, consistent with the decisions of this court, adheres to the view that no duty of care is owed to a stillborn child for the purposes of a personal injury action. It should follow that if the unborn child is not deemed a person to whom a duty of care is owed during prenatal care, the duty of care flows to the mother as the single individual biologically intertwined with the unborn child. By holding that a duty of care flows to neither the unborn child nor the mother, the majority renders the mother a bystander to medical procedures performed upon her own body. The practical effect of the majority's view is that the physician bears no duty of care if his negligence causes the death of the unborn child and the concomitant emotional injury to the mother. The unborn and mothers are entitled to greater protection.

The public policy reasons typically advanced to deny recovery of damages for emotional distress are not implicated in this case. In Becker v Schwartz ( 46 N.Y.2d 401, 414-415), the damages for emotional harm, sought by the parents of a child suffering from abnormalities, were deemed incalculable since the emotional suffering was mitigated by the emotional fulfillment arising from the birth. The combination of positive and negative emotions rendered the ascertainment of damages too speculative. The death of the unborn child in this case eliminates any possibility of such mitigation. Nor can it be argued that recovery here would extend liability beyond rational practical boundaries. ( See, Tobin v Grossman, 24 N.Y.2d 609, 618.) By reasons of the professional physician-patient relationship and physiology, liability for emotional distress extends only to the mother, and not to older children, fathers, grandparents, relatives or others in loco parentis, who, as bystanders, could, under these circumstances, suffer emotional harm only vicariously. The perimeter of liability is thus drawn by nature and contract. Finally, the injury to the unborn child, which resulted in the stillbirth, was caused by the affirmative, negligent conduct of the physician. The abnormality of the child, addressed in Becker v Schwartz ( supra) was not caused by the negligent physician. ( See also, Howard v Lecher, 42 N.Y.2d 109.)

In sum, plaintiff's claim for emotional distress against the defendant falls under a traditional negligence theory — i.e., plaintiff would be required to show that the defendant owed her a duty to use reasonable care in performing the genetic testing procedure, that this defendant's acts constituted a breach of that duty, and that the negligently performed procedure proximately caused injury to the plaintiff. It has been properly noted that "[s]ociety has an interest in insuring that genetic testing is properly performed * * * The recognition of a cause of action for negligence in the performance of genetic testing would encourage the accurate performance of such testing by penalizing physicians who fail to observe customary standards of good medical practice." ( Gildiner v Thomas Jefferson Univ. Hosp., 451 F. Supp. 692, 696.) Absent recognition of the cause of action in this case, such negligence goes entirely unanswered.

Accordingly, the order of the Appellate Division should be reversed.

KAYE, J. (dissenting).

Dismissal of plaintiff's complaint in this instance leaves no one who can recover for alleged wrongdoing, and frees defendant from responsibility. Defendant performed the complained-of acts on a person in his care. Were the child born alive, a remedy would lie against defendant ( see, Woods v Lancet, 303 N.Y. 349). An arguably more grievous injury while the child is in utero, resulting in a stillbirth, should not go unredressed. Where the law declares that the stillborn child is not a person who can bring suit, then it must follow in the eyes of the law that any injury here was done to the mother. I would therefore reverse the order below, and reinstate the complaint.