Opinion
December 26, 1989
Appeal from the Supreme Court, Westchester County (Delaney, J.).
Ordered that the order is reversed insofar as appealed from, the defendants' motion for partial summary judgment is denied in its entirety; and it is further,
Ordered that the order is affirmed insofar as cross-appealed from; and it is further,
Ordered that plaintiffs are awarded one bill of costs.
The plaintiff Marie Buzniak seeks to recover damages for medical malpractice stemming from an allegedly negligent performance of an amniocentesis. Her husband asserts a derivative claim. The amniocentesis allegedly caused her to sustain a staphylococcus infection resulting in a spontaneous abortion.
It is well settled that in the absence of independent physical injuries, a mother may not recover for emotional distress as a result of a stillbirth (Prado v Catholic Med. Center, 145 A.D.2d 614; Friedman v Meyer, 90 A.D.2d 511). Conversely, if the mother has suffered distinct physical injuries, her immediate mental distress wrought by the death of her unborn child is a cognizable element of any such independent physical injuries (see, Tebbutt v Virostek, 65 N.Y.2d 931; Endresz v Friedberg, 24 N.Y.2d 478; McLean v Lilling 140 Misc.2d 191). Since the plaintiff Marie Buzniak offered evidentiary proof that she sustained an independent physical injury by virtue of the amniocentesis alleged to have been negligently performed (viz., the staphylococcus infection, which in turn is said to have caused the spontaneous abortion), she has stated a claim for damages for the emotional distress occasioned by the injury (see, Endresz v Friedberg, supra), so as to withstand the defendants' motion for partial summary judgment. Similarly, the defendants are not entitled to partial summary judgment as to the plaintiff's claim for damages for the physical suffering endured as a consequence of the injury. In Endresz v Friedberg (supra, at 488), the Court of Appeals, quoting Witrak v Nassau Elec. R.R. Co. ( 52 App. Div. 234, 236), noted that: "`The plaintiff is entitled to recover for the physical injury which she has sustained, and for the pain and suffering which she has endured and will endure as a result of the defendant's negligence. So far as a miscarriage or the delayed delivery of a stillborn child augments the mother's physical injury, pain or suffering, so far is it proper to be considered on the question of damages; but its effect in depriving the mother of offspring cannot be taken into account as an element of damage at all'". Accordingly, we conclude that the defendants' motion for partial summary judgment should have been denied in its entirety. Brown, J.P., Kunzeman, Harwood and Rosenblatt, JJ., concur.