Opinion
December 29, 1994
Appeal from the Supreme Court, Chenango County (Monserrate, J.).
A review of the record indicates that plaintiff Tracy Parsons (hereinafter plaintiff) did not sustain independent physical injuries during childbirth, caused by defendants' negligence, which would entitle her to maintain an action for emotional injuries occasioned by the death of her newborn son (see, Scott v Capital Area Community Health Plan, 191 A.D.2d 772, 773, lv denied 82 N.Y.2d 656; Kakoullis v Janssen, 188 A.D.2d 769, 770; Bauch v Verrilli, 146 A.D.2d 835, 836; Prado v Catholic Med. Ctr., 145 A.D.2d 614, 615; cf., McLean v Lilling, 140 Misc.2d 191). We reject plaintiff's argument that the pain and suffering which she experienced during her prolonged, difficult and futile attempts at vaginal delivery, but which resulted in no permanent physical injuries to her, is actionable (see, e.g., Scott v Capital Area Community Health Plan, supra [the plaintiff suffered from rapid heartbeat, chest pains, shortness of breath and nausea in connection with the birth of her stillborn child]; Kakoullis v Janssen, supra [the plaintiff experienced pain and suffering from prolonged labor in the delivery of her son]; Prado v Catholic Med. Ctr., supra [the plaintiff experienced extended pain from the delayed cesarean section delivery of her stillborn child]). We also reject plaintiff's argument that the prolonged labor is sufficient to demonstrate that she was within a zone of danger, permitting recovery even absent independent physical injury (see, Sceusa v Mastor, 135 A.D.2d 117, 120-121, lv dismissed 72 N.Y.2d 909). Finally, the fourth cause of action on behalf of plaintiff's husband must also be dismissed, inasmuch as it is derivative in nature (see, Kakoullis v Janssen, supra, at 770).
Mikoll, J.P., Crew III, White and Yesawich Jr., JJ., concur. Ordered that the order is affirmed, without costs.