Mark D. Goris, Cazenovia, for defendant.
Joyce Law Firm, Sherburne (Samantha M. Holbrook of counsel), for plaintiff.
Phillip R. Rumsey, J.
In this negligence action arising from a motor vehicle accident, plaintiff-- who was eight months pregnant at the time of the accident, and delivered a stillborn infant several hours later--seeks to recover for, inter alia, emotional and psychological injuries she sustained as a result of the loss of her fetus. Defendant moves for dismissal of the complaint, arguing that
inasmuch as plaintiff herself did not suffer any distinct physical injury, apart from the loss of the baby, she cannot recover for her emotional injuries.
Although " loss of a fetus" is one of the categories of " serious injury" for which noneconomic loss resulting from a motor vehicle accident may be sought through litigation (see, Insurance Law § 5102 [d]), defendant contends that this does not abrogate the common-law prohibition against recovery for purely mental, emotional or psychological damages stemming from a stillbirth, in the absence of any related physical injury to the mother herself. Thus, in defendant's view, while the loss of the fetus is sufficient to clear the " serious injury" threshold, allowing plaintiff to bring an action to recover any legally compensable noneconomic damages resulting from the accident, she has nevertheless failed to demonstrate that she sustained any such damages. Defendant maintains that, inasmuch as the only physical symptoms plaintiff claims to have suffered are those " secondary to childbirth," such as labor pain and scarring from the emergency cesarean section operation, she has not sustained a physical injury to her own body that could form the basis for recovery.
In response, plaintiff contends, among other things, that she did suffer a physical injury, to wit, the physical trauma or impact that caused her membranes to rupture prematurely, resulting in her premature labor and, she maintains, in the ultimate death of her fetus.  In addition, she notes, the medical records confirm that her right knee was bruised (albeit only " slightly" ) in the collision. Moreover, plaintiff urges that it would be unseemly, in light of the legislature's express addition of " loss of a fetus" to the list of serious injury categories, to apply preexisting common-law principles in such a manner as to preclude recovery for precisely that type of loss.
Even were the court to accept defendant's legal argument--that recovery may not be had for emotional or psychological injuries stemming from the loss of a fetus, as a result of a motor vehicle accident, unless there is proof of a direct physical injury to the mother's body that caused the miscarriage or stillbirth--summary judgment would still be inappropriate on this record. The evidence before the Court, when viewed in the light most favorable to plaintiff, could support a finding that
the collision of the parties' vehicles caused the precipitous and premature rupture of plaintiff's amniotic membranes.W hile the breaking of such membranes does occur as a natural part of the childbirth process, in this instance the rupture did not occur as part of such process, which apparently had not yet begun in any respect; rather, it assertedly resulted from a direct application of external, traumatic force to plaintiff's body, causing a part of her body (the amniotic sac) to break, which in turn arguably caused the childbirth process to begin before it otherwise would have. Thus, even the requirement defendant would have the court impose-- that there be an independent, causative, physical injury to plaintiff, " distinct from that suffered by the stillborn fetus" (Scott v Capital Area Community Health Plan, 191 A.D.2d 772, 773)--has been satisfied in this case.
It also bears noting that, with one exception, all of the cases cited by defendant involved charges of medical malpractice,  under circumstances where it had been held that the defendant owed (and thus breached) no duty to the plaintiff, to protect her unborn child (see, id.; Tebbutt v Virostek, 65 N.Y.2d 931, 932; Farago v Shulman, 65 N.Y.2d 763; Sceusa v Mastor, 135 A.D.2d 117, lv dismissed 72 N.Y.2d 909). In one of those cases, the Court of Appeals expressly distinguished the scenario then at issue from that presented in an automobile collision case, reaffirming its prior holding that, in the latter situation, there is " a clearly recognized duty" to drive with care which, if breached, gives rise to a cause of action for the " physical and mental injuries [the plaintiff] sustained, including the emotional upset attending [a] stillbirth[ ]" (Tebbutt, at 933, citing Endresz v Friedberg, 24 N.Y.2d 478). The Court went on to clarify that " the duty question," not at issue in Endresz, was " central to resolution of the [Tebbutt] appeal" (Tebbutt, at 933; cf., Kaniecki v Yost, 166 Misc.2d 408, 414).
Further support for plaintiff's position may be gleaned from the circumstances surrounding the legislative amendment of the " serious injury" ...