## Facts

- A married couple underwent in vitro fertilization (IVF) treatment through a physician and fertility clinic.
- One of the couple’s fertilized embryos was mistakenly implanted into another clinic patient.
- The couple was not informed of the error until after the other patient had become pregnant.
- The other patient gave birth to the couple’s genetic child and cared for the child for more than four months.
- The couple later obtained custody of the child through separate proceedings.
- The couple sued the physician and clinic for medical malpractice, seeking damages limited to emotional distress, including loss of the pregnancy experience, prenatal bonding, the child’s birth, and separation from the child after birth.
- The couple submitted medical evidence describing objective manifestations of their emotional distress.

## Issues

1. Whether a medical-malpractice claim seeking only emotional-distress damages may proceed where the alleged injury arises from negligent embryo handling and implantation into another woman.
2. Whether such a claim is barred as an impermissible attempt to recover for emotional harm associated with the “creation of human life” (as in wrongful birth/wrongful life theories).
3. Whether the plaintiffs adequately alleged a direct duty and sufficiently reliable evidence to support a claim for emotional distress without physical injury.

## Decision

- The Appellate Division affirmed the order denying defendants’ motion to dismiss.
- The court held the claim was not a wrongful birth/wrongful life claim and did not seek damages based on the child’s existence.
- The court held emotional-distress damages may be recoverable in malpractice even absent physical injury when a defendant owes a duty to the plaintiff and the breach directly causes foreseeable emotional harm.
- The court held the plaintiffs’ medical submissions alleging objective manifestations of distress were sufficient at the pleading stage to satisfy the requirement of reliable indicia of genuineness.

## Legal Principles

- Emotional-distress damages may be recoverable without physical injury when a duty is owed to the plaintiff and breach of that duty directly results in emotional harm, subject to limits that screen out speculative or fraudulent claims.
- A plaintiff need not allege fear for personal physical safety to recover emotional-distress damages where the duty and direct causal connection are adequately pleaded.
- Where damages are sought for loss of pregnancy, prenatal bonding, childbirth, and early parent-child contact caused by professional negligence, the claim is treated as conventional malpractice-based emotional harm rather than a challenge to the value of life.
- Claims for purely emotional injury must be supported by objective indicia sufficient to assure the genuineness of the alleged distress; medical proof of consequential or contemporaneous effects can satisfy this requirement.

## Conclusion

The court permitted IVF patients to pursue a malpractice claim for emotional distress stemming from negligent embryo misimplantation, reasoning that defendants owed a direct professional duty, the emotional harm was a foreseeable and direct result of the breach, and plaintiffs offered objective evidence supporting the genuineness of the distress.


Perry-Rogers v. Obasaju, 282 A.D.2d 231, 723 N.Y.S.2d 28 (N.Y. App. Div. 1st Dep’t 2001)