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Court grants defendants’ motion for summary judgement in a medical malpractice case where the plaintiff requested damages for emotional distress based on the death of her newborn – Bauch v. Verrilli, 536 N.Y.S.2d 240 (N.Y. App. Div., 1989)


The issue in this medical malpractice claim based on the death of an infant during childbirth is whether the mother must suffer a physical injury in order to sustain a claim for emotional distress.

In March 1983, plaintiff was admitted to the labor and delivery unit of defendant hospital. During the course of her labor, plaintiff’s attending physician, defendant doctor, prescribed Pitocin to stimulate contractions. The Pitocin was administered intravenously to plaintiff and, as a result, her contractions increased in intensity and frequency. Plaintiff gave birth to a baby boy. The infant was in respiratory distress at birth and died approximately 6 1/2 hours later.

Plaintiff filed a medical malpractice lawsuit against the hospital, as well as against the doctor and nurse who attended to the plaintiff throughout her labor and delivery. The plaintiff seeks recovery for serious personal injuries, physical and emotional pain, disappointment, sadness, anxiety and psychological trauma.

Defendant Verrilli, the attending physician, moved for partial summary judgment dismissing the cause of action in which the plaintiff sought recovery for “serious personal injuries, physical and emotional pain, disappointment, sadness, anxiety and psychological trauma.” Defendant Mackenzie, the registered nurse, and defendant hospital sought the same relief in separate motions. In support of their motions, defendants contended that the plaintiff had not sustained any physical injury, a necessary prerequisite to plaintiff’s recovery for negligent infliction of emotional pain. The New York Supreme Court agreed with the defendants and granted their motions for partial summary judgment. The plaintiff appealed.

The issue on appeal is whether the summary judgement was warranted. The standard for granting a motion for summary judgement dismissal is that there is no genuine issue as to any material fact. In other words, in filing a motion for summary judgement on the claim for recovery for “serious personal injuries, physical and emotional pain, disappointment, sadness, anxiety and psychological trauma,” the defendants are arguing that the plaintiff has no case.

Under New York law, in order to recover for emotional distress based on the death of a newborn, the mother must have suffered a physical injury as a result of the mistakes made by the doctor, nurse, or other medical professional. As evidence, defendant Verrilli produced a statement made by the plaintiff that the only physical injury she suffered was from the episiotomy. Unless the episiotomy caused the baby’s death, it is not considered a physical injury. Furthermore, the plaintiff’s medical records show that her labor pains were not excessively intense. In response to the defendants’ evidence, the plaintiff argued that she was injured by an excessive dose of Pitocin. However, she did not present evidence to support her claim of injury from the Pitocin. Thus, the court concluded that the Supreme Court did not err in granting the defendants’ motions for partial summary judgement.

Note that this case involved a claim for summary judgement on a particular claim in the plaintiff’s complaint. The defendants were granted “partial summary judgement.” This means that the case will move forward on the plaintiff’s other claims. In other words, the defendant did not completely win their case. They won on one specific issue. As a result, even if the rest of the case goes to trial, that issue will not. The plaintiff in a personal injury case can use the same strategy if the facts warrant it.

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