Summary
noting that New York law would not permit recovery for emotional distress based solely on birth of stillborn child, but would if physical injury to mother was shown
Summary of this case from Heinrich v. SweetOpinion
October 29, 1998
Appeal from the Supreme Court, Bronx County (Gerald Esposito, J.).
While the law does not permit a mother's recovery for wrongful death or negligent infliction of emotional distress based solely upon the still birth of her child ( see, Matter of Broadnax, 240 A.D.2d 663; Guialdo v. Allen, 171 A.D.2d 535), it does permit recovery upon a theory such as that alleged in the complaint, namely, that by reason of obstetric malpractice plaintiff mother herself sustained physical injury in childbirth with emotional sequellae ( see, Buzniak v. County of Westchester, 156 A.D.2d 631). Whether plaintiff did indeed sustain physical injury in excess of that ordinarily incident to childbirth ( see, Guialdo v. Allen, supra) and whether she did so by reason of the malpractice alleged against defendants, are, upon the conflicting expert affidavits before us, triable questions of fact precluding the grant of defendants' motion for summary judgment.
Concur — Lerner, P. J., Milonas, Ellerin, Rubin and Williams, JJ.