Opinion
No. 1420 Index No. 24515/13 Case No. 2020-03823
05-23-2024
Veronica SanMiguel, as Administrator of the Estate of Keegan Dayle Karp, Deceased, et al., Plaintiffs-Respondents, v. Meryl Y. Grimaldi, M.D., et al, Defendants-Appellants, Julie Crocco, C.N.M., Defendant.
Vigorito, Barker, Patterson, Nicholas & Porter, LLC, New York (Bhalinder L. Rikhye of counsel), for Meryl Y. Grimaldi, M.D., appellant. Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, White Plains (Samantha E. Quinn of counsel), and Garbarini & Scher, P.C., New York (Rita F. Aronov of counsel), for St. Barnabas Hospital, appellant. Hasapidis Law Offices, South Salem (Annette G. Hasapidis of counsel), for respondents.
Defendants appeal from an order of Supreme Court, Bronx County (George J. Silver, J.), entered May 15, 2020, which, insofar as appealed from as limited by the briefs, denied defendant St. Barnabas Hospital's motion for summary judgment dismissing the complaint as against it, and denied defendant Dr. Meryl Y. Grimaldi's motion for partial summary judgment on plaintiff mother's fourth cause of action for failure to obtain informed consent.
Vigorito, Barker, Patterson, Nicholas & Porter, LLC, New York (Bhalinder L. Rikhye of counsel), for Meryl Y. Grimaldi, M.D., appellant.
Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, White Plains (Samantha E. Quinn of counsel), and Garbarini & Scher, P.C., New York (Rita F. Aronov of counsel), for St. Barnabas Hospital, appellant.
Hasapidis Law Offices, South Salem (Annette G. Hasapidis of counsel), for respondents.
Dianne T. Renwick Sallie Manzanet-Daniels, Lizbeth González, Julio Rodriguez III, Bahaati E. Pitt-Burke
RODRIGUEZ, J.
This appeal concerns, among other issues, whether Sheppard-Mobley v King (4 N.Y.3d 627 [2005]) (Sheppard-Mobley) and related cases bar a plaintiff mother's claim for emotional harm resulting from lack of informed consent for certain prenatal procedures. We hold that they do not.
Sheppard-Mobley held that a mother's damages for emotional harm could not be recovered on a cause of action for ordinary medical malpractice where the child was born alive and in the absence of independent physical injury to the mother. Accordingly,plaintiff's claim based on lack of informed consent-a separate theory of recovery that, under the circumstances, implicates different interests than the ordinary medical malpractice claim at issue in Sheppard-Mobley -is distinguishable.
Plaintiffs' amended complaint asserts claims by plaintiff mother Veronica SanMiguel individually and as administrator of her deceased child's estate. References in this opinion to plaintiff, singular, refer to plaintiff SanMiguel individually.
In addition, assuming the rule of Sheppard-Mobley applies to claims for ordinary medical malpractice and lack of informed consent alike, we are of the opinion that the rule should be revisited. Although reexamination of the common law of torts is properly approached with "circumspect[ion]" (Greene v Esplanade Venture Partnership, 36 N.Y.3d 513, 520 [2021]), the substantive law of this area is not only "peculiarly nonstatutory" but also characteristically subject to judicial development (Batalla v State of New York, 10 N.Y.2d 237, 239 [1961], quoting Woods v Lancet, 303 NY 349, 355 [1951]; see People v Hobson, 39 N.Y.2d 479, 489 [1976]; see generally Greene, 35 N.Y.3d 513). Now almost 20 years after Sheppard-Mobley, further consideration is warranted with respect to whether a mother may recover for emotional damages resulting from physical injuries to her fetus or infant during pregnancy, labor, or delivery caused by medical malpractice or lack of informed consent. Ultimately, we respectfully submit that Sheppard-Mobley has, like some common-law tort rules before it, "failed to withstand the cold light of logic and experience" (Broadnax v Gonzalez, 2 N.Y.3d 148, 156 [2004]).
I.
The record on appeal, compiled in relation to the separate summary judgment motions of defendant St. Barnabas Hospital and defendant Dr. Meryl Grimaldi, shows the following.
Plaintiff Veronica SanMiguel, pregnant with her first child, was admitted to St. Barnabas Hospital on July 1, 2012, one week past her due date of June 23, 2012. At 3:15 p.m., Cervidil was placed vaginally to induce cervical dilation. Her water broke spontaneously on July 2, at 8:29 a.m. A Cook's cervical balloon was inserted at 3:23 p.m. At 6:39 p.m., Dr. Grimaldi took over plaintiff's care, and per her order Pitocin was started at 6:55 p.m. At 1:41 a.m. on July 3, Dr. Grimaldi ordered removal of the Cook's balloon to conduct an internal exam, which showed that plaintiff was four centimeters dilated.
By 6 a.m. on July 3, plaintiff was fully dilated. At 7:47 a.m., the fetal heart rate monitoring tracings reflected recurrent decelerations and minimal variability. Defendant certified nurse midwife Julie Crocco came on duty at 8 a.m. At about 9:51 a.m., the fetal monitoring strips showed fetal bradycardia. Nurse Tina Johnson called Dr. Grimaldi to plaintiff's room at or after 9:54 a.m., and Dr. Grimaldi arrived at about 10:05 a.m.
The hospital notes conflict with Dr. Grimaldi's testimony that she was called later, shortly before the fetal scalp electrode was cut at 10:12 a.m.
After more than 40 hours of labor, Dr. Grimaldi unsuccessfully attempted vacuum extraction twice, at 10:12 a.m. and 10:15 a.m., and then ordered a Cesarean section. Plaintiff asserted that she repeatedly-during labor on July 2 as well as in the early hours and throughout the morning of July 3-asked for a C-section while at St. Barnabas. Plaintiff further stated that she told the hospital staff that she did not want to deliver by vacuum extraction and never consented to it.
Dr. Grimaldi performed an emergent C-section delivery at 10:23 a.m. The child was resuscitated at delivery, intubated immediately, and chest compressions were started. The baby's Apgar scores were 0, 3, and 4 at 1, 5, and 10 minutes. At 10:33 a.m., the child was transported to the neonatal intensive care unit in serious condition, then sent to Montefiore Medical Center. Life support was discontinued at Montefiore and the child was declared dead on July 11, 2012, eight days after his birth. The cause of death was determined to be "perinatal anoxic/ischemic encephalopathy."
Plaintiff commenced the instant action individually and as administrator of the child's estate against, among others, St. Barnabas, Dr. Grimaldi, C.N.M. Crocco, Nurse Johnson, and Dr. Lazaro Lezcano (neonatologist). As relevant here, the amended complaint asserted causes of action for medical malpractice with respect to the child, failure to obtain informed consent with respect to the child, and failure to obtain informed consent with respect to plaintiff herself.
Plaintiff's expert stated that "the use of a vacuum extractor was not indicated and its use contributed to a delay in an expedient delivery of the distressed fetus and further contributed to fetal hypoxia as evidenced by the continued fetal bradycardia." As a result, plaintiff suffered substantial emotional harm, including PTSD, depression, and anxiety, which resulted in, among other things, a five-day involuntary admission to Bellevue Hospital.
II.
Defendants Dr. Grimaldi and St. Barnabas separately moved for summary judgment. Supreme Court denied so much of Dr. Grimaldi's motion as sought dismissal of plaintiff's claim for lack of informed consent. In addition, Supreme Court denied St. Barnabas's motion in its entirety.
With respect to Dr. Grimaldi, the court found that there were triable issues of fact as to whether plaintiff consented to use of the vacuum extractor to attempt to deliver the child. The consent document mentioned treatment for "obstetrical care including vaginal delivery," but not vacuum extraction. There was also a conflict between the hospital, which argued that failure to obtain consent did not contribute to plaintiff's injuries, and plaintiff's expert's opinion that use of the vacuum extractor contributed to the child's hypoxia.
As to St. Barnabas, the court concluded that while it set forth a prima facie showing in favor of summary judgment, plaintiff raised triable issues of fact. In particular, although St. Barnabas asserted that plaintiff was treated properly, plaintiff raised instances in which St. Barnabas departed from the standard of care, such as that St. Barnabas did nothing in response to decelerations in fetal heart rate as shown on the monitoring strips for over six hours, during which time no one examined plaintiff and no one was called. Additionally, the parties disagreed as to whether St. Barnabas departed from the standard of care by not performing a timely C-section, as there were discrepancies as to when Nurse Johnson called Dr. Grimaldi, raising triable issues of fact. There was also an issue of fact as to whether St. Barnabas's acts or omissions contributed to the child's injuries and death.
Dr. Grimaldi and St. Barnabas now appeal.
III.
Dr. Grimaldi contends that plaintiff mother's claim for emotional injuries suffered as a result of lack of informed consent cannot be sustained given the child's live birth and the absence of independent physical injuries.
St. Barnabas argues it is entitled to summary judgment on the issue of vicarious liability for nursing care, as plaintiff discontinued the case with prejudice against Nurse Johnson. It further argues that plaintiff failed to raise triable issues of fact regarding nursing care during labor and delivery as well as with respect to neonatal care.
Plaintiffs argue, among other things, that relevant authority does not address whether emotional harm may be recovered by a mother asserting a claim for lack of informed consent for procedures performed while the child was in utero. Additionally, plaintiffs argue that St. Barnabas remains vicariously liable since their discontinuance as against Nurse Johnson was based on her death, as opposed to the merits. Moreover, plaintiffs contend Supreme Court properly found that questions of fact precluded the award of summary judgment.
A.
We turn first to the issue presented by Dr. Grimaldi's appeal. Her argument, which relies on Sheppard-Mobley and related authority for the proposition that plaintiff may not recover for emotional harm on her claim for lack of informed consent since plaintiff sustained no independent physical injury and her child was born alive, is without merit.
1.
In Sheppard-Mobley, the Court of Appeals answered in the negative the question of "whether an expectant mother may recover damages for emotional harm where the alleged medical malpractice causes in utero injury to the fetus, subsequently born alive" (4 N.Y.3d 627, 634 [2005]). The Court reasoned that its decision in Broadnax v Gonzalez (2 N.Y.3d 148 [2004]) merely filled a "gap" created by Tebbutt v Virostek (65 N.Y.2d 931 [1985]), as Tebbutt had engendered the "peculiar result" of "expos[ing] medical caregivers to malpractice liability for in utero injuries when the fetus survived, but immunized them against any liability when their malpractice caused a miscarriage or stillbirth" (Sheppard-Mobley, 4 N.Y.3d at 637, quoting Broadnax, 2 N.Y.3d at 154). The Sheppard-Mobley Court thus held that the rule from Broadnax did not extend beyond remedying the identified gap, since, "[a]fter all,... a child born alive may bring a medical malpractice action for physical injuries inflicted in the womb" (id. at 637, citing Woods v Lancet, 303 NY 349 [1951]).
As they relate to the present appeal, neither Broadnax nor Tebbutt mention a claim for lack of informed consent. In addition, Sheppard-Mobley 's only reference to the plaintiff's claim for lack of informed consent is in its list of her claims (see 4 N.Y.3d at 636 ["On behalf of Sheppard, the complaint alleges physical and emotional injuries caused by defendants' alleged medical malpractice. Finally, as against Dr. King, OGSRC and Dr. Spector, the complaint alleges lack of informed consent in their treatment of Sheppard. "] [emphasis added]; compare id. at 636 [the plaintiff's "most pertinent" claim on appeal is the "sixth cause of action seeking damages for Sheppard's emotional distress"], with Sheppard-Mobley v King, 10 A.D.3d 70, 73 [2d Dept 2004] ["seventh cause of action alleging the mother's lack of informed consent"], mod 4 N.Y.3d 627 [2005]). Accordingly, the holding of Sheppard-Mobley applies to the claim resolved-one for ordinary medical malpractice.
Although a claim for lack of informed consent may be categorized with that for medical malpractice in a customary sense (see e.g. Murriello v Crapotta, 51 A.D.2d 381, 384 [2d Dept 1976] ["an action based upon lack of informed consent is to be considered as in the realm of a malpractice action"]), a claim for "lack of informed consent... is separate and distinct from general allegations of medical negligence" (Rizzo v Estate of Polifrone, 192 A.D.3d 564, 565 [1st Dept 2021], citing Jolly v Russell, 203 A.D.2d 527 [2d Dept 1994]; see Messina v Alan Matarasso, M.D., F.A.C.S., P.C., 284 A.D.2d 32, 34 [1st Dept 2001]; Flores v Flushing Hosp. & Med. Ctr., 109 A.D.2d 198, 200 [1st Dept 1985]).
That ordinary medical malpractice and lack of informed consent are discrete theories of recovery is plain inasmuch as each comprises different elements (see e.g. Foster-Sturrup v Long, 95 A.D.3d 726, 727 [1st Dept 2012] ["To sustain a cause of action for medical malpractice, a plaintiff must prove two essential elements: (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of plaintiff's injury"], quoting Frye v Montefiore Med. Ctr., 70 A.D.3d 15, 24 [1st Dept 2009]; Spano v Bertocci, 299 A.D.2d 335, 337-338 [2d Dept 2002] ["To establish a cause of action for malpractice based on lack of informed consent, plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury"] [internal quotation marks, citation, and alteration omitted]).
In this context, claims for ordinary medical malpractice and lack of informed consent are indeed similar inasmuch as each is predicated on the shared duty owed to a pregnant mother and her fetus (see e.g. Woods, 303 NY at 357; Doe v Lai-Yet Lam, 268 A.D.2d 206, 206 [1st Dept 2000]). They differ, however, to the extent that a prenatal claim for lack of informed consent implicates the prospective mother's active role as decisionmaker for herself and on behalf of her fetus, with both capacities concerning the mother's right to the integrity of her body (see Hughson v St. Francis Hosp. of Port Jervis, 92 A.D.2d 131, 135 [2d Dept 1983] ["A child is not legally competent to give binding consent to any medical services rendered to his or herself.... Perforce, a fetus or infant in utero is also unable to give legal consent, much less, as a practical matter, any consent at all. It is the pregnant mother to whom we must look."]; Murriello, 51 A.D.2d at 383; see also Broadnax, 2 N.Y.3d at 155 ["Because the health of the mother and fetus are linked, we will not force them into legalistic pigeonholes"]; Schloendorff v Society of N.Y. Hosp., 211 NY 125, 129 [1914] [Cardozo, J.] ["Every human being of adult years and sound mind has a right to determine what shall be done with his own body"], abrogated on other grounds by Bing v Thunig, 2 N.Y.2d 656 [1957]).
We disagree with the dissent's suggestion that a certain "reluctance" of the Sheppard-Mobley Court to "expand emotional damages in cases involving prenatal torts" prescribes a given result here. Plaintiff's claim for lack of informed consent falls outside Sheppard-Mobley 's ratio decidendi, as an ordinary medical malpractice claim does not implicate the prospective mother's dual decision-making role.
Plaintiff's claim for lack of informed consent is thus distinct from the ordinary medical malpractice claim presented in Sheppard-Mobley and not subject to the bar set forth therein. Accordingly, Supreme Court correctly denied Dr. Grimaldi's motion to the extent it sought summary judgment to dismiss plaintiff's fourth cause of action.
2.
Separately, assuming for the sake of argument that Sheppard -Mobley applies similarly to claims for ordinary medical malpractice and lack of informed consent, we respectfully invite the Court of Appeals to revisit the issue (see e.g. Scholastic Inc. v Pace Plumbing Corp., 129 A.D.3d 75, 82 [1st Dept 2015] ["we think this issue is one that the Court of Appeals should revisit"]; People v Ashe, 74 A.D.3d 503, 504-505 [1st Dept 2010] [McGuire, J., concurring] ["I respectfully submit that the Court of Appeals should reconsider its decision"], affd 15 N.Y.3d 909 [2010]; People v Gamble, 129 A.D.2d 470, 476 [1st Dept 1987] [Sandler, J.P., concurring] ["Although it is, and should be, done rarely, I think there are circumstances in which an intermediate appellate judge, without any disrespect to the Court of Appeals, may appropriately invite that court to reconsider the correctness of a rule it enunciated"], affd 70 N.Y.2d 885 [1987]). We believe not only that the rule of Sheppard-Mobley should not apply to bar the present claim, but also that such a result would be well supported by the history of jurisprudential development in this area.
Were we persuaded that Sheppard-Mobley applies to both claims, we would of course be constrained to reverse and award summary judgment to Dr. Grimaldi in this respect.
In 1896, the Court of Appeals determined that "no recovery can be had" for emotional harm "occasioned by the negligence of another, where there is no immediate personal injury" (Mitchell v Rochester Ry. Co., 151 NY 107, 110 [1896]). The bases for this rule were trifold: that (1) to hold otherwise "would naturally result in a flood of litigation"; (2) "the injury complained of may be easily feigned without detection"; and (3) "the damages must rest upon mere conjecture or speculation" (id.).
For 65 years, and until the Court's reconsideration in Batalla v State of New York (10 N.Y.2d 237 [1961]), Mitchell 's proscription governed claims involving emotional harm. In overruling Mitchell, the Batalla Courtheld that an infant plaintiff could recover emotional damages suffered as a result of her "place[ment] in a [ski] chair lift by an employee of the State who failed to secure and properly lock the belt intended to protect the occupant," notwithstanding the absence of immediate physical injury (10 N.Y.2d at 239). In deciding to overrule decades-old authority, Batalla observed that the Court "act[s] in the finest common-law tradition when we adapt and alter decisional law to produce common-sense justice" (id. at 239, quoting Woods, 303 NY at 355). Mitchell's justifications, Batalla noted, did not withstand scrutiny, as "[a]lthough fraud, extra litigation and a measure of speculation are of course, possibilities, it is no reason for a court to eschew a measure of its jurisdiction" (id. at 240-241)."In the difficult cases, we must look to the quality and genuineness of proof, and rely to an extent on the contemporary sophistication of the medical profession and the ability of the court and jury to weed out the dishonest claims" (id. at 242). Ultimately, Batalla concluded that continued adherence to Mitchell 's blanket bar "would be unjust, as well as opposed to experience and logic" (Batalla, 10 N.Y.2d at 239).
Since Batalla, further developments have enlarged the sphere of permitted recovery for emotional distress damages without immediate physical injury. For example, in Johnson v State of New York, the Court of Appeals recognized a claim for emotional harm where the defendant "falsely advised [the plaintiff, the patient's daughter,] that the patient... had died" (37 N.Y.2d 378, 379-380 [1975]). Additionally, in Bovsun v Sanperi, the Court adopted the zone-of-danger rule for "serious and verifiable" alleged emotional distress damages suffered by a tort victim's "immediate family," as such a claim "conform[ed] with traditional tort principles" (61 N.Y.2d 219, 231, 233 [1984]; see Greene v Esplanade Venture Partnership,36 N.Y.3d 514 [2021] [expanding the scope of "immediate family" for the purposes of zone-of-danger claims to include grandparents and grandchildren]).
The context of claims arising out of pregnancy and childbirth presents the same kind of common-law development. Woods v Lancet, for instance, recognized a right of action for an infant plaintiff's alleged prenatal injuries caused by the defendant's negligence during his mother's ninth month of pregnancy, despite a well-established bar to the contrary (see 303 NY at 351-357, citing Drobner v Peters, 232 NY 220 [1921]).
Closer to the issue at hand, in Tebbutt v Virostek, the Court of Appeals affirmed the award of summary judgment in favor of the defendant doctor, dismissing the plaintiff mother's claim for emotional damages arising out of the stillbirth of her child (65 N.Y.2d at 933). The child's stillbirth was allegedly caused by Dr. Virostek's improperly taken amniotic fluid sample. "[E]xamination of the stillborn child revealed three hemorrhagic blisters" consistent with Dr. Virostek's three insertions of the amniocentesis syringe (id. at 933-934 [Jasen, J., dissenting]). Tebbutt 's holding wasbased on plaintiff's failure to allege "physical injury distinct from that suffered by the fetus" (id. at 932), as well as the plaintiff's "fail[ure] to establish the existence of a duty running from defendant [doctor] to plaintiff" (id.). Tebbutt distinguished its holding from that in Endresz v Friedberg (24 N.Y.2d 478 [1969]), a car accident-related negligence action resulting in the stillbirth of the plaintiff's twins in which emotional damages were held to be recoverable, by noting that "the injuries the plaintiff mother sustained in [ Endresz ] were the direct result of defendants' breach of a clearly recognized duty to drive with a reasonable degree of care" (Tebbutt,65 N.Y.2d at 933).
Nineteen years after Tebbutt, the Court in Broadnax v Gonzalez (2 N.Y.3d 148 [2004]) reassessed whether emotional damages were recoverable on a claim for medical malpractice resulting in stillbirth in the absence of independent physical injury to the mother. In overruling Tebbutt, the Broadnax Court noted Tebbutt 's "peculiar result: it exposed medical caregivers to malpractice liability for in utero injuries when the fetus survived, but immunized them against any liability when their malpractice caused a miscarriage or stillbirth" (id. at 154). Broadnax further observed that "[a]lthough, in treating a pregnancy, medical professionals owe a duty of care to the developing fetus ..., they surely owe a duty of reasonable care to the expectant mother, who is, after all, the patient" (id. at 155). The Court thus concluded that Tebbutt had "failed to withstand the cold light of logic and experience" (id. at 156), and sustained the plaintiff mother's claim.
Shortly after Broadnax, the Second Department decided Sheppard-Mobley v King, an action "to recover damages for alleged multiple acts of medical malpractice perpetrated upon the plaintiff and her then unborn child, the infant plaintiff" (10 A.D.3d 70, 72 [2d Dept 2004]). The Second Department, "discern[ing] no reasonable basis to limit the Broadnax holding to cases of stillbirth and miscarriage" (id. at 77), held that the mother could recover on her claim for emotional damages notwithstanding the absence of independent physical injuries (id. at 76-77; see id. at 77 ["The duty owed to the mother remains the same whether the fetus is stillborn or is born in an impaired state. The duty is not vitiated by virtue of the live birth of a child in a severely impaired state."]).
The Court of Appeals reversed. Circumscribing Broadnax as a "narrow" holding, the Court characterized its prior decision as intended to address only Tebbutt 's "peculiar result" and the "particular injustice" "created by 'categorically denying recovery to a narrow, but indisputably aggrieved, class of plaintiffs'" (Sheppard-Mobley, 4 N.Y.3d at 637, quoting Broadnax, 2 N.Y.3d at 154). The limited rule of Broadnax was thus "that a mother could recover for emotional injuries when medical malpractice caused a stillbirth or a miscarriage, even without a showing that she suffered an independent physical injury" (Sheppard-Mobley, 4 N.Y.3d at 637). A mother's recovery of emotional damages where an "infant plaintiff was injured in utero, but carried to term and born alive" was accordingly proscribed (id.).
Common-law development in the field of torts is, as seen above, a path well tread. It is, moreover, a distinctive role of the judicial branch (see e.g. Batalla, 10 N.Y.2d at 239 ["we abdicate our own function, in a field peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court-made rule"], quoting Woods, 303 NY at 355; see also People v Hobson, 39 N.Y.2d 479, 489 [1976] ["Tort cases, but especially personal injury cases, offer another example where courts will, if necessary, more readily reexamine established precedent to achieve the ends of justice in a more modern context"]).
Respectfully, we are of the view that the rule of Sheppard-Mobley is, like Mitchell 's proscription of emotional damages claims in the absence of independent physical injury, "unjust, as well as opposed to experience and logic" (Batalla, 10 N.Y.2d at 239; see Broadnax, 2 N.Y.3d at 156). It is, of course, true that "arbitrary distinctions are an inevitable result of the drawing of lines which circumscribe legal duties, and that delineation of limits of liability in tort actions is usually determined on the basis of considerations of public policy" (Bovsun, 61 N.Y.2d at 228 [internal citation omitted]). More forceful, however, is the conclusion that continued application of existing distinctions to claims like the present would not only be repugnant to "common-sense justice" (Batalla, 10 N.Y.2d at 239; see Greene, 36 N.Y.3d at 526 [development of precedent "calls upon us to blend the prudence we have shown in the course of many decades... with recognition of reshaped societal norms and everyday common sense"]) but also contrary to the "fundamental" principle "that one may seek redress for every substantial wrong" (Batalla, 10 N.Y.2d at 240).
The current decisional law subjects plaintiff to two such arbitrary limits. First, had the attempted vacuum extractions resulted in stillbirth-instead of her child's death eight days later-plaintiff would be permitted recovery for her emotional damages. Second, had the attempted vacuum extractions caused physical injury to her-however minor, beyond that "normally incident to childbirth" (Guialdo v Allen, 171 A.D.2d 535, 536 [1st Dept 1991])-she would similarly be able to recover for the alleged harm. As with the rule of Mitchell and the "slight-impact cases" and other exceptions thereto, the net result "cannot be said to insure recovery to any substantial number of meritorious claimants" (Batalla, 10 N.Y.2d at 241, quoting 1936 Report of N.Y. Law Rev. Comm., at 450). Instead, these blunt distinctions work to exclude legitimate claims like the one at issue, notwithstanding the presence of "genuine and serious mental distress" for which the need of "contemporaneous physical harm to provide an index of reliability" has been dispensed (Kennedy v McKesson Co., 58 N.Y.2d 500, 505 [1983]).
As in other cases permitting the recovery of emotional distress damages, there is a "direct duty" from Dr. Grimaldi to plaintiff (Greene, 36 N.Y.3d at 520-521, citing Batalla, 10 N.Y.2d at 238-239; see e.g. Ferrara v Bernstein, 81 N.Y.2d 895, 898 [1993] ["breach of duty owed directly to plaintiff leading to her emotional distress is plainly compensable"]; Kennedy, 58 N.Y.2d at 504 ["when there is a duty owed by defendant to plaintiff, breach of that duty resulting directly in emotional harm is compensable even though no physical injury occurred"]). Furthermore, the circumstances of plaintiff's claim are consistent with others where recovery for emotional harm is permitted even in the absence of independent physical injury (see e.g. Kennedy, 58 N.Y.2d at 504-505 [describing cases involving "the sophistication of the medical profession and the likelihood of genuine and serious mental distress" and "a duty owed by defendant to plaintiff"]).
The character of the physician-patient relationship provides further support for the refashioning proposed herein. Inasmuch as the physician-patient relationship is one with limited parties-as applied here, it encompasses only Dr. Grimaldi, plaintiff SanMiguel, and her prenatal child-it serves to reasonably circumscribe the scope of potential liability within practical bounds (see Howard v Lecher, 42 N.Y.2d 109, 112 [1977]; see also Broadnax, 2 N.Y.3d at 155 n 3 [physician "owes no duty of care to the expectant father" or other parent]; Escobar-Santana v State, 347 Conn 601, 619-623 [2023]; see generally Restatement [Third] of Torts: Physical and Emotional Harm § 47, Comment f). Moreover, it is a relationship for which breach of the existing duty or violation of a patient's bodily integrity naturally encompasses the potential for emotional harm (see Kennedy, 58 N.Y.2d at 504-505; see also Dan B. Dobbs, Undertakings and Special Relationships in Claims for Negligent Infliction of Emotion Distress, 50 Ariz L Rev 49, 57 [2008]).
Lastly, New York courts are mindful, when considering the propriety of common-law tort rules, of persuasive authority from other jurisdictions (see e.g. Greene, 36 N.Y.3d at 522 [noting zone-of-danger rule "had 'become the majority rule in this country'"], quoting Bovsun, 61 N.Y.2d at 228-229; Basso v Miller, 40 N.Y.2d 233, 240-241 [1976]). In a recent limited survey, the Connecticut Supreme Court observed:
"Consistent with the modern trend, [] a number of [Connecticut's] sister state courts have concluded, under their common-law authority, that a birthing mother may recover for the purely emotional distress she experiences as a result of medical malpractice resulting in physical injury or death of her fetus or infant during the labor and delivery process." (Escobar-Santana, 347 Conn at 620 [emphasis added], citing e.g. Burgess v Superior Court, 2 Cal 4th 1064 [1992] [California], Carey v Lovett, 132 N.J. 44 [1993] [New Jersey], and Modaber v Kelley, 232 Va 60 [1986] [Virginia]).Sheppard-Mobley is a decision of the highest Court of this State, and we thus apply it on constraint. Nonetheless, we should be likewise solicitous of the judiciary's duty to "reexamine established precedent to achieve the ends of justice in a more modern context" (Hobson, 39 N.Y.2d at 489). Here, this would include recognition of the clear "physical and emotional relationship between the defendants' wrong and the plaintiff's rights" (Kennedy, 58 N.Y.2d at 521-522 [Fuchsberg, J., dissenting]). Accordingly, to the extent that this case is governed by Sheppard-Mobley, we respectfully submit that this issue should be revisited by the Court of Appeals and that judicial redress should be available to plaintiff mother here.
The Supreme Court of Connecticut also observed that "courts generally have limited the emotional distress damages that the mother can recover to those arising from the traumas she suffered during and immediately following the birthing process, up to and including her realization of her child's injuries; emotional distress damages for ongoing emotional distress arising from a loss of the child's consortium, coping with the child's ongoing injuries or with the ongoing loss of the child, or disruptions to the ordinary routines of life generally have been permitted only when authorized by statute" (Escobar-Santana, 347 Conn at 621 n 14). The parties to the present appeal, however, do not address the scope of recoverable damages on plaintiff's claim. It is thus an issue that may await further development.
B.
Supreme Court correctly denied St. Barnabas's motion. Initially, we note that contrary to St. Barnabas's argument, a party who discontinues claims against an employee, but not on the merits, may sue an employer for vicarious liability. General Obligations Law § 15-108 "does not foreclose a plaintiff negligently injured by an employee from recovering against an employer on a theory of vicarious liability despite plaintiff's prior execution of a release running to the negligent employee" (Riviello v Waldron, 47 N.Y.2d 297, 307 [1979]; see also Pace v Hazel Towers, Inc., 183 A.D.2d 588, 588 [1st Dept 1992]; Nobel v Ambrosio, 120 A.D.2d 715, 717 [2d Dept 1986]). Plaintiffs' discontinuance of the action with prejudice against the nurse who attended plaintiff mother during her labor, due to the nurse's death several years ago, was not a dismissal on the merits. Plaintiffs' claim based on vicarious liability was therefore properly sustained.
Plaintiffs also established the existence of triable issues of fact as to both standard of care and the nexus between the departure from accepted medical standards and the infant's hypoxia and resulting death sufficient to defeat defendant hospital's motion for summary judgment (see Anyie B. v Bronx Lebanon Hosp., 128 A.D.3d 1, 2-4 [1st Dept 2015] ; Melendez v Parkchester Med. Servs., P.C., 76 A.D.3d 927, 927 [1st Dept 2010]). Plaintiffs' expert's opinion that defendant hospital breached the standard of care by, inter alia, the failure of its nursing staff to notify the attending physician or midwife of fetal heart rate monitoring tracings-which showed minimal variability and recurrent decelerations-creates an issue of fact as to whether defendant hospital departed from the standard of care.
Viewing the facts in the light most favorable to plaintiffs, their expert's opinion that the delay in treatment allowed the fetus to continue to experience unremitting distress, substantially diminished the infant plaintiff's chance of a better outcome, and contributed to ongoing fetal hypoxia that ultimately resulted in his death, was sufficient to raise a factual issue as to proximate cause (see Hernandez v New York City Health & Hosp. Corp., 129 A.D.3d 532, 532 [1st Dept 2015]).
Finally, defendant St. Barnabas's uncontested assertion that its care and treatment of the newborn did not depart from standard care is conceded by plaintiffs, who acknowledge that they are no longer seeking recovery for neonatal care. Accordingly, so much of plaintiffs' complaint as relates to malpractice and negligence arising from neonatal care is dismissed.
We have considered the parties' remaining arguments and find them unavailing.
Accordingly, the order of Supreme Court, Bronx County (George J. Silver, J.), entered May 15, 2020, which, insofar as appealed from as limited by the briefs, denied defendant St. Barnabas Hospital's motion for summary judgment dismissing the complaint as against it, and denied defendant Dr. Meryl Y. Grimaldi's motion for partial summary judgment on plaintiff mother's fourth cause of action for failure to obtain informed consent, should be modified, on the law, to grant St. Barnabas's motion to the extent of dismissing so much of plaintiffs' amended complaint as sought recovery for negligent neonatological care, and otherwise affirmed, without costs.
All concur except Renwick, P.J., who dissents in part in an Opinion.
RENWICK, P.J. (dissenting in part)
I agree with the majority that Supreme Court correctly denied defendant St. Barnabas Hospital's motion for summary judgment to dismiss the complaint against it arising from the alleged delay of treatment. I also agree that we should dismiss the malpractice claims against defendant St. Barnabas Hospital arising from the plaintiff mother's prenatal care. However, I dissent from the majority's decision to affirm Supreme Court's denial of defendant Dr. Grimaldi's motion for summary judgment dismissing the plaintiff mother's claim for emotional injuries caused by Dr. Grimaldi's alleged failure to obtain informed consent to use a vacuum extractor in attempting to vaginally deliver the child. Court of Appeals controlling precedents mandate dismissal of this claim because the mother did not suffer an independent physical injury stemming from the lack of informed consent, and her emotional damages arise solely from the physical injuries sustained by the infant who was born alive(Sheppard-Mobley v King, 4 N.Y.3d 627, 634 [2005]). Thus, the infant, having been born alive, has viable claims of lack of informed consent and medical malpractice claims against defendant Dr. Grimaldi (id. at 637).
Plaintiff alleges that the consent did not mention vacuum extraction, just treatment for "obstetrical care including vaginal delivery."
In Broadnax v Gonzalez (2 N.Y.3d 148, 155 [2004]), the Court of Appeals overturned existing precedent, holding that an expectant mother could recover damages for emotional distress, even in the absence of an independent injury, if the medical malpractice resulted in miscarriage or stillbirth. Prior to Broadnax, New York courts had not allowed recovery in such emotional distress actions, finding that they did not fit into any exception to the general rule that plaintiffs in maternity malpractice actions may not recover for negligent infliction of emotional distress absent some physical injury (see e.g. Tebbutt v Virotesk, 65 N.Y.2d 931, 932 [1985]). In its decision, the Broadnax C ourt overruled the "non-duty" holding in Tebbutt by establishing a new rule that physicians owe "a duty of reasonable care" to expectant mothers (Broadnax, 2 N.Y.3d at155). The ruling in Broadnax referred only to cases in which a medical caregiver's negligence results in a miscarriage or stillbirth, leaving unresolved the issue of whether the mother of a child who survives injury during childbirth may also recover damages for emotional distress.
"[I]n treating a pregnancy, medical professionals owe a duty of care to the developing fetus.... [Thus,] they surely owe a duty of reasonable care to the expectant mother, who is, after all, the patient" (citing Woods v Lancet, 303 NY 349 [1951] [recognizing an implied duty of care owed to a developing fetus]). The court further reasoned that a physician owes a pregnant mother a duty of care because "the health of the mother and fetus are linked" (Broadnax, 2 N.Y.3d at 155).
A year later, in Sheppard-Mobley v King, the Court of Appeals concluded that when the child survives and has his or her own viable cause of action for injuries, the mother may not recover for her own emotional distress, caused by the injury to the child. Noting the reasoning behind the Broadnax decision of providing accountability in situations where medical negligence led to the death of a fetus in utero and rectifying the "injustice created by categorically denying recovery to a narrow, but indisputably aggrieved, class of plaintiffs," the Court held that Broadnax's ratio decidendi would not be furthered by any expansion of the holding to encompass situations where the child was born alive and was, therefore, entitled to bring an independent medical malpractice claim seeking recovery for the injuries suffered prior to birth (Sheppard-Mobley, 4 N.Y.3dat 636-637).
The instant case falls squarely within Sheppard-Mobley (see e.g. Ward v Safajou, 145 A.D.3d 836, 838-839 [2d Dept 2016], lv denied, 29 N.Y.3d 906 [2017]; Levin v New York City Health and Hosps Corp. [ Harlem Hosp. Ctr. ], 119 A.D.3d 480 [1st Dept 2014], lv dismissed in part, denied in part, 25 N.Y.3d 962 [2015]). Plaintiff mother makes no claim that she suffered physical injuries from the alleged medical malpractice or lack of informed consent. Indeed, plaintiff mother concedes that her claims for emotional injuries caused by the alleged medical malpractice were properly dismissed. For the same reasons, her claims for emotional injuries caused by the alleged lack of informed consent should have been dismissed as well. A dismissal of plaintiff mother's emotional injury claims would not immunize the medical caregiver for her alleged malpractice and lack of informed consent. On the contrary, like in Sheppard-Mobley and unlike Broadnax, the infant plaintiff here, who was born alive, has viable claims for injuries stemming from the alleged malpractice and lack of informed consent.
By way of comparison, if a plaintiff were independently emotionally injured by lack of informed consent, she might be able to seek recovery. For example, in Martinez v Long Is. Jewish Hillside Med. Ctr. (70 N.Y.2d 697 [1987]), the plaintiff sought recovery for mental anguish and depression that were the direct result of a breach of duty to her by her doctors who gave her erroneous advice that her baby would be born with microcephaly or anencephaly. Because of this incorrect advice, she agreed to an abortion, which violated her deeply held religious beliefs. The Court concluded that under these "unusual circumstances," the plaintiff's claim was actionable because she did not seek damages for what happened to the fetus, but from the "psychological injury directly caused by her agreeing to an act which, as the jury found, was contrary to her firmly held beliefs. Defendants' breach of duty was the precipitating and proximate cause of that injury" (id. at 699). Unlike Martinez, in the instant case, plaintiff does not seek emotional damages stemming from her lack of informed consent that resulted in direct trauma to her, separate and apart from the harm to the child.
The majority, however, argues that Broadnax and Sheppard-Mobley were never meant to apply to emotional damages claims based on lack of informed consent. This argument is not persuasive. The majority argues primarily that Broadnax and Sheppard-Mobley were discrete and fairly narrow rulings applicable only to "ordinary medical malpractice" because the "only reference to plaintiff's claim for lack of informed consent is in [their] list of her claims." However, Broadnax and Sheppard-Mobley were decided in a specific legal context. In Broadnax, the Court was confronted with a legal landscape in New York courts that had not allowed a woman to maintain any action when medical malpractice caused the stillbirth or miscarriage of her fetus in the absence of an independent physical injury, finding that neither the mother nor the fetus fit into any exception to the general rule that plaintiffs may not recover for negligent infliction of emotional distress absent some physical injury (see e.g. Vaccaro v. Squibb Corp., 52 N.Y.2d 809, 810-811 [1980] [holding that harm caused to a fetus in utero by the defendant does not impose a duty on the doctor towards the mother]). In that context, as the Court in Sheppard-Mobley explained, its decision in Broadnax was "a narrow one, intended to permit a cause of action where otherwise none would be available to redress the wrongdoing that resulted in a miscarriage or stillbirth" (Sheppard-Mobley, 4 N.Y.3dat 637).
Accordingly, that neither Broadnax nor Sheppard-Mobley specifically mentioned a claim of lack of informed consent does not support the majority's argument because it is clear that Broadnax expanded the existing law sparingly. Broadnax was a narrow exception to the general rule that plaintiffs may not recover for negligent infliction of emotional distress absent some physical injury. Thus, in Sheppard-Mobley, the Court again declined to broaden the narrow class of mothers for which emotional damages could be brought. The Court did not extend the class to cases where the fetus is born alive, noting that "a child born alive may bring a medical malpractice action for physical injuries inflicted in the womb" (id. at 637). Significantly, the majority cites no case law that supports its suggestion that prior to Broadnax and Sheppard-Mobley a plaintiff could have brought an independent claim for lack of informed consent absent some physical injury.
As a reading of the dissent in Broadnax suggests, the Court had concerns about increasing the liability of medical caregivers, particularly in the cases involving prenatal torts (see Broadnax, 2 N.Y.3d at 157 [Read, J., dissenting]).
Alternatively, the majority argues that "plaintiff's claim for lack of informed consent is... distinct from ordinary medical malpractice claims presented in Sheppard-Mobley and [thus] not subject to the bar set therein." According to the majority, the claims are distinct because each claim is comprised of "discrete theories" based upon "different elements." This distinction is unpersuasive and insufficient to remove the lack of informed consent claims from the ambit of Sheppard-Mobley. Indeed, as the majority candidly acknowledges, "claims for ordinary medical malpractice and lack of informed consent are... similar in as much as they are predicated on the shared duty owed to a pregnant mother and her fetus" (see e.g. Murriello v Crapotta, 51 A.D.2d 381, 384 [2d Dept 1976] ["an action based upon lack of informed consent is to be considered as in the realm of a malpractice action"]). Thus, to the extent Sheppard-Mobley implicates the Court of Appeals' reluctance to expand emotional damages in cases involving prenatal torts, it should apply with equal force to claims of lack of informed consent. In fact, the majority makes no attempt to explain why such reluctance has no application in the context of a claim of lack of informed consent.
In short, although the majority makes sympathetic, if not logical, arguments for allowing a plaintiff mother to recover emotional damages, under the circumstances here, I believe we are bound by Court of Appeals controlling precedents in Broadnax and Sheppard-Mobley. Accordingly, I would grant defendant Dr. Grimaldi's motion for summary judgment to the extent of dismissing plaintiff mother's claim for emotional damages caused by Dr. Grimaldi's alleged failure to obtain informed consent.
Order, Supreme Court, Bronx County (George J. Silver, J.), entered May 15, 2020, modified, on the law, to granted to St. Barnabas's motion for summary judgment to the extent of dismissing so much of plaintiffs' amended complaint as sought recovery for negligent neonatological care, and otherwise affirmed, without costs.
All concur except Renwick, P.J. who dissents in part in an Opinion.
Renwick, P.J., Manzanet-Daniels, González, Rodriguez, Pitt-Burke, JJ.