
    [809 NE2d 645, 777 NYS2d 416]
    Karen Broadnax et al., Appellants, v Frederick A. Gonzalez et al., Respondents. Debra A. Fahey et al., Appellants, v Anthony C. Canino et al., Respondents.
    Argued February 12, 2004;
    decided April 1, 2004
    
      POINTS OF COUNSEL
    
      Margaret C. Jasper, South Salem, for appellants in the first above-entitled action.
    I. The case law requiring plaintiff mother to prove an independent injury as a condition precedent to recovering for the emotional distress she suffered resulting from the loss of her full-term baby due to medical malpractice should be changed. (Endresz v Friedberg, 24 NY2d 478; Tebbutt v Virostek, 65 NY2d 931; Kaniecki v Yost, 166 Misc 2d 408; Johnson v Verrilli, 134 Misc 2d 582; Carlstrand v Kerwin, 204 AD2d 1080; Correa v Maimonides Med. Ctr., 165 Misc 2d 614; Battalia v State of New York, 10 NY2d 237.) II. The lower court should have applied the zone of danger rule and allowed plaintiff mother to recover for her emotional distress resulting from the loss of her full-term baby due to medical malpractice. (Bovsun v Sanperi, 61 NY2d 219; Haught v Maceluch, 681 F2d 291.)
    
      Hancock & Estabrook, LLP, Syracuse (Janet D. Callahan of counsel), for respondents in the first above-entitled action.
    I. The law, which does not permit a parent to recover for emotional distress alone stemming from the loss of a fetus, should not be changed in the context of this obstetrical malpractice case to permit recovery where the creation of a new duty imposing such liability would constitute a radical change in tort law in New York. (Lauer v City of New York, 95 NY2d 95; De Angelis v Lutheran Med. Ctr., 58 NY2d 1053; Tebbutt v Virostek, 65 NY2d 931; Vaccaro v Squibb Corp., 52 NY2d 809; Johnson v State of New York, 37 NY2d 378; Tobin v Grossman, 24 NY2d 609; Woods v Lancet, 303 NY 349; Endresz v Friedberg, 24 NY2d 478; Howard v Lecher, 42 NY2d 109; Bovsun v Sanperi, 61 NY2d 219.) II. The law requiring proof of an independent physical injury to the mother is not an appropriate issue for review by this Court in this case, since a failure to prove such injury was not the ground for the trial court’s dismissal of the case. (Prete v Rafla-Demetrious, 224 AD2d 674.) III. Assuming the application of Bovsun v Sanperi (61 NY2d 219 [1984]) to childbirth cases, plaintiffs did not establish the requisite elements for recovery under a zone of danger theory. (Miller v Chalom, 269 AD2d 37; Parsons v Chenango Mem. Hosp., 210 AD2d 847, 86 NY2d 778; Prado v Catholic Med. Ctr. of Brooklyn & Queens, 145 AD2d 614.) IV Where plaintiff failed to prove that she suffered a physical injury that was not an aspect of the childbirth procedure itself, as required under Tebbutt v Virostek (65 NY2d 931 [1985]), her action was properly dismissed. (Miller v Chalom, 269 AD2d 37; James v Middletown Community Health Ctr., 278 AD2d 280; Njoku v City of New York, 254 AD2d 223; Saguid v Kingston Hosp., 213 AD2d 770; Parsons v Chenango Mem. Hosp., 210 AD2d 847, 86 NY2d 778; Scott v Capital Area Community Health Plan, 191 AD2d 772, 82 NY2d 656; Bubendey v Winthrop Univ. Hosp., 151 AD2d 713; Sceusa v Mastor, 135 AD2d 117, 72 NY2d 909; Farago v Shulman, 104 AD2d 965, 65 NY2d 763; Howard v Lecher, 42 NY2d 109.)
    
      O’Connor, Gacioch, Leonard & Cummings, LLP, Binghamton (Patricia A. Cummings of counsel), for appellants in the second above-entitled action.
    I. The sui generis relationship of the fetus and mother contradicts application of New York bystander law in obstetrical malpractice cases. (Tebbutt v Virostek, 65 NY2d 931; Woods v Lancet, 303 NY 349; Tobin v Grossman, 24 NY2d 609; Howard v Lecher, 42 NY2d 109; Becker v Schwartz, 46 NY2d 401; Park v Chessin, 46 NY2d 401; Vaccaro v Squibb Corp., 52 NY2d 809; Endresz v Friedberg, 24 NY2d 478; Ferrara v Bernstein, 179 AD2d 79, 81 NY2d 895; Canty v New York City Health & Hosps. Corp., 158 AD2d 271.) II. Plaintiff met the zone of danger exception to the bystander law. Her complaint, should not have been dismissed. (Bovsun v Sanperi, 61 NY2d 219.)
    
      Hancock & Estabrook, LLP, Syracuse {Janet D. Callahan of counsel), for respondents in the second above-entitled action.
    I. The law, which does not permit a parent to recover for emotional distress alone stemming from the loss of a fetus, should not be changed in the context of this obstetrical malpractice case to permit recovery where the creation of a new duty imposing such liability would constitute a rádical change in tort law in New York. (Lauer v City of New York, 95 NY2d 95; De Angelis v Lutheran Med. Ctr., 58 NY2d 1053; Tebbutt v Virostek, 65 NY2d 931; Vaccaro v Squibb Corp., 52 NY2d 809; Johnson v State of New York, 37 NY2d 378; Tobin v Grossman, 24 NY2d 609; Woods v Lancet, 303 NY 349; Endresz v Friedberg, 24 NY2d 478; Howard v Lecher, 42 NY2d 109; Bovsun v Sanperi, 61 NY2d 219.) II. Assuming the application of Bovsun v Sanperi (61 NY2d 219 [1984]) to childbirth cases, plaintiffs did not establish the requisite elements for recovery under a zone of danger theory. (Miller v Chalom, 269 AD2d 37; Parsons v Chenango Mem. Hosp., 210 AD2d 847, 86 NY2d 778; Prado v Catholic Med. Ctr. of Brooklyn & Queens, 145 AD2d 614.) III. Where plaintiff failed to raise a factual issue as to whether she suffered a physical injury that was not an aspect of the childbirth procedure itself, as required under Tebbutt v Virostek (65 NY2d 931 [1985]), the dismissal of her complaint was proper. (Miller v Chalom, 269 AD2d 37; James v Middletown Community Health Ctr., 278 AD2d 280; Njoku v City of New York, 254 AD2d 223; Saguid v Kingston Hosp., 213 AD2d 770; Parsons v Chenango Mem. Hosp., 210 AD2d 847, 86 NY2d 778; Scott v Capital Area Community Health Plan, 191 AD2d 772, 82 NY2d 656; Bubendey v Winthrop Univ. Hosp., 151 AD2d 713; Sceusa v Mastor, 135 AD2d 117, 72 NY2d 909; Farago v Shulman, 104 AD2d 965, 65 NY2d 763.)
   OPINION OF THE COURT

Rosenblatt, J.

These two cases call upon us to revisit a question we last addressed in Tebbutt v Virostek (65 NY2d 931 [1985]): whether, absent a showing of independent physical injury to her, a mother may recover damages for emotional harm when medical malpractice causes a miscarriage or stillbirth.

L

A. Broadnax

While pregnant, plaintiff Karen Broadnax was under the care of defendants Frederick Gonzalez, an obstetrician, and Georgia Rose, a certified nurse-midwife. On September 25, 1994, at 1:45 a.m., plaintiff telephoned Rose to say that her water had broken and that she had expelled a large amount of blood. Rose advised plaintiff and her husband, Jeffrey, to meet her at defendant Westchester Birth Center. When she arrived there, at approximately 3:00 a.m., plaintiff again experienced vaginal bleeding. She and her husband asked Rose whether they should go across the street to St. John’s Riverside Hospital for immediate treatment. Rose telephoned Dr. Gonzalez, who directed that plaintiff be transported to the Columbia Presbyterian Allen Pavilion in Manhattan.

Accompanied by Rose, the Broadnaxes reached the Allen Pavilion at about 3:45 a.m. Dr. Gonzalez had not yet arrived. In his absence, however, Rose did not contact the on-call doctor. About 45 minutes later—almost two hours after plaintiff arrived at the Westchester Birth Center—Dr. Gonzalez examined plaintiff and detected fetal heart rate decelerations. Rather than performing an emergency cesarean section, Dr. Gonzalez conducted a vaginal and pelvic examination. He then performed a sonogram, but could no longer detect a fetal heartbeat. Approximately half an hour later, around 5:15 a.m., Dr. Gonzalez undertook a cesarean section, delivering a full-term stillborn girl. Autopsy reports indicated that a placental abruption caused the fetus to die before delivery.

The Broadnaxes sued defendants, alleging that their failure to recognize and properly treat plaintiffs placental abruption supported a cause of action for medical malpractice and related claims. At the close of plaintiffs’ case, Supreme Court granted defendants’ motion pursuant to CPLR 4401 for judgment as a matter of law. The Appellate Division affirmed, holding that Tebbutt v Virostek barred plaintiff from recovering damages for emotional or psychological harm stemming from the stillbirth because she adduced no evidence of having suffered a legally cognizable physical injury distinct from the fetus’s.

B. Fahey

Plaintiff Debra Ann Fahey became an obstetrical patient of Dr. Anthony C. Canino, of defendant OBGYN Health Care Associates, EC. (OBGYN). In August 1999, Dr. Canino informed her that she was carrying twins. On October 28, 1999, on a follow-up visit with Dr. Canino’s partner, defendant Dr. Patrick F. Ruggiero, plaintiff complained of lower abdominal pains and cramping. Based on an ultrasound, Dr. Ruggiero concluded that one of the twins was pressing against plaintiffs sciatic nerve. Two days later, during the eighteenth week of pregnancy, plaintiff called Dr. Canino and complained of increasingly intense pain along with nausea. Relying on Dr. Ruggiero’s examination, Dr. Canino advised plaintiff to lie down, explaining that the pain was likely related to her sciatic nerve and the nausea probably resulted from something she ate for lunch. Less than two hours later, while sitting on the toilet, plaintiff gave birth to one of the twins. Still linked to the fetus by the umbilical cord, she went by ambulance to the hospital, where she delivered the second twin. Neither twin survived.

Other doctors later diagnosed plaintiff as having an “incompetent cervix.” In a subsequent pregnancy, she underwent a cerclage procedure to suture her cervix, and thereby prevent the premature expulsion of the fetus. Plaintiff delivered a six-week premature daughter the following year.

The Faheys brought this action for medical malpractice asserting that defendants negligently failed to diagnose and treat plaintiffs cervical condition. Supreme Court granted defendants’ motion for summary judgment dismissing the complaint. With one Justice dissenting, the Appellate Division, also citing Tebbutt, affirmed on the ground that defendants’ alleged malpractice did not cause the mother an independent physical injury.

We now reverse the Appellate Division orders in both cases.

IL

In Tebbutt v Virostek (65 NY2d 931 [1985]), we held that a mother could not recover for emotional injuries when medical malpractice caused a stillbirth or miscarriage, absent a showing that she suffered a physical injury that was both distinct from that suffered by the fetus and not a normal incident of childbirth. Plaintiffs assert that Tebbutt is arbitrary and unfair, and should be overturned.

Tebbutt reflected our longstanding reluctance to recognize causes of action for negligent infliction of emotional distress, especially in cases where the plaintiff suffered no independent physical or economic injury. Its holding was in keeping with our view that tort liability is not a panacea capable of redressing every substantial wrong. Although these concerns weigh heavily on us today, we are no longer able to defend Tebbutt’s logic or reasoning.

As its dissenters recognized, the rule articulated in Tebbutt fits uncomfortably into our tort jurisprudence. Infants who are injured in the womb and survive the pregnancy may maintain causes of action against tortfeasors responsible for their injuries (see Woods v Lancet, 303 NY 349 [1951]). Further, a pregnant mother may sue for any injury she suffers independently. A parent, however, cannot bring a cause of action for wrongful death when a pregnancy terminates in miscarriage or stillbirth (see Endresz v Friedberg, 24 NY2d 478 [1969]).

Injected into this common-law framework, Tebbutt engendered a peculiar result: it exposed medical caregivers to malpractice liability for in útero injuries when the fetus survived, but immunized them against any liability when their malpractice caused a miscarriage or stillbirth. In categorically denying recovery to a narrow, but indisputably aggrieved, class of plaintiffs, Tebbutt is at odds with the spirit and direction of our decisional law in this area. The Endresz court, for example, justified its holding— barring parents from suing in wrongful death on behalf of an unborn child—in part on the assumption that parents would have some legal recourse for a miscarriage or stillbirth resulting from negligent conduct (id. at 486).

On its own terms, Tebbutt may make formal sense, but it created a logical gap in which the fetus is consigned to a state of “juridical limbo” (65 NY2d at 933 [Jasen, J., dissenting]). It is time to fill the gap. If the fetus cannot bring suit, “it must follow in the eyes of the law that any injury here was done to the mother” (65 NY2d at 940 [Kaye, J., dissenting]).

Defendants maintain that Tebbutt states a sensible rule, one worth preserving, because the defendant physician in that case did not violate a duty to the expectant mother. We are not persuaded. In Ferrara v Bernstein (81 NY2d 895 [1993]), we permitted a plaintiff to recover damages for emotional distress when she miscarried, following an unsuccessful abortion, on the ground that the treating physician violated a duty of care to his patient. Defendants would have us distinguish Ferrara, arguing that, in the cases before us, their alleged conduct injured only the fetuses, and, accordingly, they did not violate a duty to the expectant mothers. Defendants’ reasoning is tortured. Although, in treating a pregnancy, medical professionals owe a duty of care to the developing fetus (as we impliedly recognized in Woods v Lancet, 303 NY 349 [1951]), they surely owe a duty of reasonable care to the expectant mother, who is, after all, the patient. Because the health of the mother and fetus are linked, we will not force them into legalistic pigeonholes.

We therefore hold that, even in the absence of an independent injury, medical malpractice resulting in miscarriage or stillbirth should be construed as a violation of a duty of care to the expectant mother, entitling her to damages for emotional distress.

Our dissenting colleague has expressed concern over the possible repercussions of what she concedes to be a “modest” advance in our tort jurisprudence. Significantly, on this appeal, no one from any quarter came forward to support any such concerns. While we are well aware of the importance of precedent, Tebbutt has failed to withstand the cold light of logic and experience. To be sure, line drawing is often an inevitable element of the common-law process, but the imperative to define the scope of a duty—the need to draw difficult distinctions— does not justify our clinging to a line that has proved indefensible.

Accordingly, the orders of the Appellate Division should be reversed, with costs, and the cases remitted to Supreme Court for further proceedings consistent with this opinion.

Read, J. (dissenting).

In 1985, we were asked whether a woman may recover damages for emotional distress where medical malpractice causes her to suffer a stillbirth. We concluded in Tebbutt v Virostek (65 NY2d 931 [1985]) that no recovery could be had in the absence of an independent physical injury, thus clearly and reasonably circumscribing a medical caregiver’s duty to a pregnant patient. Appellants now invite us to reconsider and revise our holding in Tebbutt. Unlike the majority, I would decline the invitation.

True, the new rule articulated by the majority expands existing law sparingly. The new rule does not alter the legal rights or status of a fetus; it does not create any new duties on the part of a physician. Nonetheless, the majority’s justification for redefining the duty of care owed to a pregnant woman by her medical caregivers is insufficient for me to vote to overrule a 20-year-old precedent.

Stare decisis teaches that “common-law decisions should stand as precedents for guidance in cases arising in the future” for substantial reasons of stability and legitimacy (People v Damiano, 87 NY2d 477, 488 [1996] [Simons, J., concurring]). As Judge Simons also observed, however, stare decisis is not “inflexible,” and our holdings are “always open to reexamination if there is some evidence that the policy concerns underlying them are outdated or if they have proved unworkable” (id. at 489). Here, there is no suggestion that the Tebbutt rule is unworkable. To the contrary, Tebbutt established a bright-line rule, which is easily applied. The majority considers Tebbutt outdated, however, because a “narrow, but indisputably aggrieved, class of plaintiffs” (majority op at 154) is denied recovery, creating a gap in the law. But this same gap was manifest in 1985 when we decided to limit a physician’s exposure to damages for emotional distress to those cases in which the woman sustains a physical injury distinct from that suffered by the fetus. Nor does the majority’s new rule do away with all seeming gaps. As we acknowledged in Bovsun v Sanperi (61 NY2d 219, 228 [1984]), “arbitrary distinctions are an inevitable result of the drawing of lines which circumscribe legal duties.”

Today’s ruling exposes medical caregivers to additional liability for the treatment they provide to pregnant women. Juries will be asked to quantify the emotional distress that a woman feels upon suffering a miscarriage or stillbirth. Importantly, there is no way for us to predict or assess the potential effect of this expansion of liability, however modest it may appear, on the .cost and availability of gynecological and obstetrical services in New York State.

No one disputes the heartache experienced by a woman who miscarries or delivers a stillborn fetus. Nonetheless, Tebbutt established a rational and workable rule to limit the scope of duty in obstetrical malpractice. I see insufficient reason to overrule Tebbutt and create a different rule. Accordingly, I would affirm the orders of the Appellate Division.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo and R.S. Smith concur with Judge Rosenblatt; Judge Read dissents and votes to affirm in a separate opinion.

In Broadnax v Gonzalez: Order reversed, with costs, and case remitted to Supreme Court, Westchester County, for further proceedings in accordance with the opinion herein.

In Fahey v Canino: Order reversed, with costs, and the motion of defendants Canino and Ruggiero for summary judgment denied. 
      
      . We take no position on the ultimate merits of either case. We note only that, on the records before us, the cases were sufficient to withstand respectively a motion for a trial order of dismissal and a motion for summary judgment.
     
      
      . In Endresz, an automobile accident both caused injuries to the mother and resulted in her miscarrying. The Court reasoned that no cause of action should lie in wrongful death because the damages recoverable by the mother for her independent physical injuries would “afford ample redress for the wrong done” (id.).
      
     
      
      . The treating physician owes no duty of care to the expectant father. It of course remains true that, where the mother has a cause of action, her husband may recover for loss of services and consortium if the facts support such a claim.
     
      
      . In rejecting Tebbutt, we recognize that a majority of jurisdictions permit some form of recovery for negligently caused stillbirths or miscarriages (see e.g. Eich v Town of Gulf Shores, 293 Ala 95, 300 So 2d 354 [1974]; Summer-field v Superior Ct. In & For Maricopa County, 144 Ariz 467, 698 P2d 712 [1985]; Gorke v Le Clerc, 23 Conn Supp 256, 181 A2d 448 [Super Ct, Hartford County 1962]; Worgan v Greggo & Ferrara, Inc., 50 Del 258, 128 A2d 557 [Super Ct, New Castle County 1956]; Simmons v Howard Univ., 323 F Supp 529 [D DC 1971]; Shirley v Bacon, 154 Ga App 203, 267 SE2d 809 [1980]; Seef v Sutkus, 205 111 App 3d 312, 562 NE2d 606 [1st Dist 1990]; Bolin v Wingert, 764 NE2d 201 [Ind 2002]; Hale v Manion, 189 Kan 143, 368 P2d 1 [1962]; Mitchell v Couch, 285 SW2d 901 [Ky 1955]; State, TJse of Odham v Sherman, 234 Md 179, 198 A2d 71 [1964]; Wascom v American Indem. Corp., 383 So 2d 1037 [La App, 1st Cir 1980]; Mone v Greyhound Lines, Inc., 368 Mass 354, 331 NE2d 916 [1975]; O’Neill v Morse, 385 Mich 130, 188 NW2d 785 [1971]; Verkennes v Corniea, 229 Minn 365, 38 NW2d 838 [1949]; Rainey v Horn, 221 Miss 269, 72 So 2d 434 [1954]; Strzelczyk v Jett, 264 Mont 153, 870 P2d 730 [1994]; White v Yup, 85 Nev 527, 458 P2d 617 [1969]; Poliquin v MacDonald, 101 NH 104, 135 A2d 249 [1957]; Giardina v Bennett, 111 NJ 412, 545 A2d 139 [1988]; Salazar v St. Vincent Hosp., 95 NM 150, 619 P2d 826 [Ct App 1980]; Hopkins v McBane, 427 NW2d 85 [ND 1988]; Werling v Sandy, 17 Ohio St 3d 45, 476 NE2d 1053 [1985]; Evans v Olson, 1976 OK 64, 550 P2d 924 [1976]; Libbee v Permanente Clinic, 268 Or 258, 518 P2d 636 [1974]; Amadio v Levin, 509 Pa 199, 501 A2d 1085 [1985]; Presley v Newport Hosp., 117 RI 177, 365 A2d 748 [1976]; Fowler v Woodward, 244 SC 608, 138 SE2d 42 [1964]; Parvin v Dean, 7 SW3d 264 [Tex Ct App 1999]; Vaillancourt v Medical Ctr. Hosp. of Vt., Inc., 139 Vt 138, 425 A2d 92 [1980]; Moen v Hanson, 85 Wash 2d 597, 537 P2d 266 [1975]; Baldwin v Butcher, 155 W Va 431, 184 SE2d 428 [1971]; Kwaterski v State Farm Mut. Auto. Ins. Co., 34 Wis 2d 14, 148 NW2d 107 [1967]). Unlike most of these jurisdictions, however, we limit a mother’s recovery only to damages for the emotional distress attending a stillbirth or miscarriage caused by medical malpractice. We do not depart from our holding in Endresz v Friedberg (24 NY2d 478 [1969]) barring wrongful death actions under these circumstances.
     