
    Jacqueline J. Lynch et al., Appellants, v Bay Ridge Obstetrical and Gynecological Associates, P. C., et al., Respondents.
    Argued September 15, 1988;
    decided October 27, 1988
    
      POINTS OF COUNSEL
    
      Joseph E. Mohbat for appellants.
    I. Plaintiffs had a cause of action. Dr. Rubino owed his patient the direct duty to detect her pregnancy before prescribing a fetus-threatening drug. Breach of that duty was the proximate cause of direct damages suffered by plaintiff-appellant. (Cohn v Lionel Corp., 21 NY2d 559; Westhill Exports v Pope, 12 NY2d 491; Vaccaro v Squibb Corp., 52 NY2d 809; Martinez v Long Is. Jewish Hillside Med. Center, 70 NY2d 697; Ferrara v Galluchio, 5 NY2d 16; Battalla v State of New York, 10 NY2d 237; Ken
      
      nedy v McKesson Co., 58 NY2d 500.) II. Plaintiffs’ summary judgment motion should be granted when defendants offer no proof in opposition. (Zuckerman v City of New York, 49 NY2d 557.)
    
      Jeffrey N. Rejan and Alvin P. Bluthman for respondents.
    I. Plaintiffs’ claims do not assert a cause of action under New York law. (Milks v McIver, 264 NY 267; Woods v Lancet, 303 NY 349; Endresz v Friedberg, 24 NY2d 478; Vaccaro v Squibb Corp., 52 NY2d 809; Tebbutt v Virostek, 65 NY2d 931; Friedman v Meyer, 90 AD2d 511; Farago v Shulman, 104 AD2d 965; Schloendorff v Society of N. Y. Hosp., 211 NY 125; McCandless v State of New York, 3 AD2d 600, 4 NY2d 797; Martinez v Long Is. Jewish Hillside Med. Center, 70 NY2d 697.) II. The courts below properly denied plaintiffs’ motion for summary judgment as plaintiffs have not shown a departure from the professional standard of care. (McDermott v Manhattan Eye, Ear & Throat Hosp., 15 NY2d 20.)
   OPINION OF THE COURT

Hancock, Jr., J.

Plaintiffs appeal from an order dismissing their malpractice complaint for failure to state a cause of action (CPLR 3211 [a] [7]). In her complaint and supporting papers (see, CPLR 3211 [c]), plaintiff alleges that she consulted defendant Rubino, her gynecologist, because she had not had a menstrual period for over three months and her "home pregnancy tests” were negative. After a visual examination and with no blood or urine analysis, defendant informed her that she was not pregnant. Without explaining any of the attendant risks, he prescribed the hormonal drug Provera. When plaintiff had the prescription filled, she became aware — from the warning on the label and advice given by the pharmacist — that the drug was known to pose a serious risk of producing congenital defects in the child if ingested during early pregnancy. Relying on Rubino’s advice that she was not pregnant, plaintiff took the drug as prescribed. When menstruation did not occur, she consulted another gynecologist who ascertained from laboratory tests that she was indeed pregnant and cautioned her about the drug’s potentially harmful effects on a fetus in early stages. Fearing that these harmful effects had occurred, plaintiff and her husband elected to have the pregnancy terminated.

Plaintiff alleges that defendants’ negligence forced her either to risk having a congenitally defective child or to submit to an abortion in violation of her "personal, moral and religious convictions”. She seeks damages for her physical, psychological, and emotional injuries resulting from the abortion and from having to decide whether to undergo it.

The courts below — citing Tebbutt v Virostek (65 NY2d 931), Bovsun v Sanperi (61 NY2d 219) and Vaccaro v Squibb Corp. (52 NY2d 809) — viewed the case as involving an injury to the fetus for which plaintiffs could not recover emotional or psychological damages. Additionally, the Appellate Division held that Rubino’s conduct could not have been the proximate cause of the injuries stemming from the abortion. Unlike plaintiffs in Martinez v Long Is. Jewish Hillside Med. Center (70 NY2d 697), the court reasoned, plaintiffs here acted "on their own, without the affirmative advice of the defendants, [and] thereupon took the final step of procuring an abortion” (134 AD2d 240, 242). We now modify.

The complaint and affidavits sufficiently define a cause of action in malpractice for the physical and emotional injuries suffered by plaintiff as a result of defendants’ negligence in rendering medical services to plaintiff, and, thereby, breaching their duty of care owed directly to her. Contrary to defendants’ contentions, plaintiff is not seeking to recover for emotional distress resulting from injuries inflicted on the fetus (cf., Tebbutt v Virostek, 65 NY2d 931, supra; Vaccaro v Squibb Corp., 52 NY2d 809, supra). The breach of duty claimed by plaintiff is Rubino’s failure to perform a pregnancy test before advising her that she was not pregnant and before prescribing a drug with potentially harmful side effects if taken during early pregnancy. Indeed, according to her pleading she was the patient and she was the one injured by the negligent diagnosis and prescription. It is the erroneous advice that she was not pregnant — not an injury to a third person as in Tebbutt or Vaccaro or Bovsun — which, plaintiff asserts, led to the actions directly causing her injuries: her ingestion of the dangerous drug and her decision to terminate the pregnancy to avoid the drug’s harmful effects. Reduced to its essentials, the case presents a malpractice action based on medical advice which put plaintiff in the position of having to make decisions and take actions which caused her physical and emotional injuries. That these decisions and actions involved an abortion does not, as defendants suggest, require us to regard the case as something it is not — i.e., an effort by plaintiff to assert a claim for damages on behalf of her unborn child for injuries done to it (see, Endresz v Friedberg, 24 NY2d 478) or a claim for damages based on plaintiff’s emotional and psychological stress in witnessing and knowing of the injury to the fetus and its loss (see, Tebbutt v Virostek, supra).

In addressing defendants’ contention that the claimed negligence could not, as a matter of law, be the proximate cause of the injuries incident to the abortion, we must, of course, assume the truth of the allegations in the complaint and supporting affidavits (Cohn v Lionel Corp., 21 NY2d 559, 562). Ordinarily, plaintiff’s allegations that the injury was a consequence of her physician’s negligent advice would be sufficient to create a question of fact for the jury (see, Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315; Sewar v Gagliardi Bros. Serv., 69 AD2d 281, 289 [Simons, J.], affd 51 NY2d 752). Defendants argue, however, that this case presents an exception to the rule because plaintiff did not submit to the abortion on the advice of her physician, as in Martinez, but made the choice to proceed on her own. The independence of plaintiff’s decision, defendants contend, elevates her choice to a superseding cause which absolves them from liability. We disagree.

We have recognized that an intervening act which is "not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct * * * may well be a superseding act which breaks the causal nexus (see, e.g., Martinez v Lazaroff, 48 NY2d 819, 820; Ventricelli v Kinney System Rent A Car, 45 NY2d 950, 952, supra; Rivera v City of New York, 11 NY2d 856)” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315; see, Prosser and Keeton, Torts § 44, at 303-316 [5th ed]). But we have cautioned that whether an act is foreseeable and the course of events normal are questions which are generally subject to varying inferences presenting issues for the fact finder to resolve (Derdiarian v Felix Contr. Corp., supra, at 315). There is, we conclude, a factual question presented here: whether, under the circumstances, it could reasonably be expected that plaintiff, upon discovering that she had taken the drug in the mistaken belief that she was not pregnant, would elect to undergo an abortion.

Moreover, the general rule is that an intervening act which is a normal consequence of the situation created by a defendant cannot constitute a superseding cause absolving the defendant from liability (see, Restatement [Second] of Torts § 443). Thus, a reasonable attempt to avoid the danger created by a defendant’s conduct — an action that should certainly be considered a "normal consequence” of that conduct — cannot amount to a superseding act which breaks the chain of causation (see, Prosser and Keeton, Torts § 44, at 307-308 [5th ed]; Restatement [Second] of Torts § 445). Applying these rules here and assuming the truth of the allegations in the complaint, it is apparent that plaintiffs "choice” to have an abortion cannot be said to be, as a matter of law, a superseding cause. As the complaint alleges, the physician’s negligent diagnosis and treatment were the precipitating causes of all that followed; but for the gynecologist’s conduct, plaintiff would not have been in the position of having to choose between two objectionable alternatives: undergo an abortion or risk having a baby with serious birth defects. That plaintiff made the very choice forced upon her by defendants’ negligence cannot insulate them from legal responsibility for such conduct.

We conclude, however, that plaintiffs cross motion for partial summary judgment was properly denied. The order of the Appellate Division should be modified, with costs to appellants, by denying defendants’ motion to dismiss and, as so modified, affirmed.

Titone, J.

(dissenting). Because the majority has not adequately considered the consequences of its present holding, I write separately to express my own dissenting views.

It is elementary that, except in limited circumstances not present here, a person cannot recover for emotional shock sustained as a result of injury to another (Kennedy v McKesson Co., 58 NY2d 500; cf., Bovsun v Sanperi, 61 NY2d 219). This rule has traditionally been applied to prohibit a mother’s recovery for the emotional distress she suffered as a result of injury or death to the fetus she carried (Tebbutt v Virostek, 65 NY2d 931; Vaccaro v Squibb Corp., 52 NY2d 809; cf., Martinez v Long Is. Jewish Hillside Med. Center, 70 NY2d 697). Further, the circumstances under which the law permits recovery for purely emotional trauma resulting from a frightening event are extremely limited (see, Kennedy v McKesson Co., supra, at 504-505 [and cases cited therein]; see also, Martinez v Long Is. Jewish Hillside Med. Center, supra; Johnson v Jamaica Hosp., 62 NY2d 523).

While acknowledging these principles, the majority attempts to treat this case as a garden-variety tort action seeking recovery for the physical, as well as emotional, injuries plaintiff sustained as a result of defendants’ alleged malpractice (majority opn, at 635-636). However, the only physical injuries plaintiff was able to allege were the loss of live fetal tissue and blood, coupled with the pain and discomfort, that attends a normal abortion. I do not, of course, intend to minimize or belittle the physical trauma that accompanies many, if not most, abortions. I emphasize this point only to demonstrate that the "physical injury” on which plaintiff’s suit — including its claim for severe emotional and spiritual damages — is based is really nothing more than an ordinary elective abortion similar to that undergone by thousands of women each year.

If this plaintiff is permitted to maintain an action, so too may any other woman who can allege an intentional or negligent act that led to the invariably painful decision to terminate a pregnancy. In effect, the "unusual circumstances” that the court first recognized as a basis for recovery in Martinez v Long Is. Jewish Hillside Med. Center (supra, at 699) have now become the norm. With this decision, the court has effectively embraced a new cause of action for "wrongful infliction of abortion.”

While I am certainly sympathetic with the suffering of plaintiffs such as Mrs. Lynch and I am as disturbed as the majority by the grossly negligent medical conduct that has been alleged here, I cannot agree that the recognition of such a cause of action is sound, at least in light of the present state of the law. If Mrs. Lynch had decided not to terminate her pregnancy and instead carried the child to term, she might have been rewarded with the birth of a healthy child, in which case there would, of course, be no basis for recovery (cf., O’Toole v Greenberg, 64 NY2d 427, 432-434). Even more to the point, if the feared result had actually occurred and the child had been born deformed, Mrs. Lynch would have had no right to seek recovery for the anguish she would unquestionably feel at seeing her child suffer over its lifetime (Vaccaro v Squibb Corp., supra; Becker v Schwartz, 46 NY2d 401; Howard v Lecher, 42 NY2d 109). In such circumstances, recovery would be denied because it would embroil the court in the impossible calculus involved in weighing the "anguish that only parents can experience upon the birth of a[n afflicted] child” against the "love that even an abnormality cannot fully dampen” (Becker v Schwartz, supra, at 414-415). In my view, assessing the monetary value of the suffering that Mrs. Lynch experienced, and discounting it in recognition that she found abortion to be a less harrowing option than carrying the pregnancy to term, is an equally difficult — and indeed an impossible — calculation to make.

On an even more fundamental level, I am disturbed by the message that the court sends when it permits Mrs. Lynch to recover while denying relief to similarly situated women who have chosen to carry their pregnancies to term and have borne a deformed or impaired child. A rule affording such a preference to the decision to abort is unquestionably inconsistent with "the 'very nearly uniform high value’ which the law and mankind have placed upon human life” (O’Toole v Greenberg, supra, at 432, quoting Becker v Schwartz, supra, at 411). The decision to terminate or continue a pregnancy is a matter of private choice with which the courts cannot, and should not, interfere. By rewarding the decision to abort with an opportunity to recover for emotional injury that is specifically withheld from the woman who carries the pregnancy to term, the court has, however unintentionally, embroiled itself in precisely the type of value judgment and line-drawing that it quite properly sought to avoid in Howard v Lecher (supra, at 113) and Becker v Schwartz (supra, at 413-414; see also, O’Toole v Greenberg, supra; Albala v City of New York, 54 NY2d 269).__

Here, as in Howard v Lecher (supra, at 113), "[t]here can be no doubt that the plaintiffs have suffered” and that the alleged slipshod behavior of the defendant doctor would, if proven, constitute serious negligence deserving of severe legal consequences. However, despite the temptation to punish the doctor’s wrongdoing and afford the plaintiffs a remedy for their suffering, "the law cannot provide a remedy for every injury incurred * * *. [I]t is this court’s duty to consider the consequences of recognizing a novel cause of action and to strike a delicate balance between the competing policy considerations” (Albala v City of New York, supra, at 274-275). Because I strongly disagree with the manner in which that balance has been struck here, I dissent and vote to affirm the Appellate Division order dismissing the complaint.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander and Bellacosa concur with Judge Hancock, Jr.; Judge Titone dissents in part and votes to affirm in a separate opinion.

Order modified, etc. 
      
       Unless otherwise indicated, "plaintiff” will refer to Jacqueline Lynch. Coplaintiff William Lynch asserts a derivative cause of action as her husband.
     
      
      . Regardless of their specific religious and moral beliefs, there are few women who do not experience some emotional trauma when forced to decide whether to terminate a problematic pregnancy. Indeed, the only legally significant difference between this case and Martinez v Long Is. Jewish Hillside Med. Center (70 NY2d 697) is that this plaintiff’s attorney had the foresight to rely on his client’s abortion itself as a form of physical injury. The same allegations should certainly have been made in Martinez, obviating the need for any dispute as to whether "[ujnder [the] unusual circumstances” Mrs. Martinez’s claim for emotional injuries alone was actionable.
     
      
      . Although the cause of action the majority recognizes includes a component of physical impact, the gist of the claim is the emotional trauma flowing from the destruction of the fetus. Thus, it is somewhat disingenuous to suggest, as the majority does, that "plaintiff is not seeking to recover for emotional distress resulting from injuries inflicted on the fetus” (majority opn, at 635). Indeed, the majority has simply repackaged old wine in a new bottle.
     
      
      . I do not intend to suggest that women in Mrs. Lynch’s position would take into account the availability of a damages remedy when making the decision to terminate or continue a pregnancy. I am concerned about the majority’s holding primarily because it creates an appearance of rewarding one decision over the other.
     