(dissenting). I respectfully dissent. Concedediy, the lines of liability in this troublesome and emotionally compelling area of law are not delineated with acuity and have resulted in many divided decisions (see Tebbutt v Virostek, 65 NY2d 931 [1985] [three judge plurality, one judge concurring on constraint; two separately penned dissents]; see also Lynch v Bay Ridge Obstetrical & Gynecological Assoc., 72 NY2d 632 *1073[1988] [divided court]; Martinez v Long Is. Jewish Hillside Med. Ctr., 70 NY2d 697 [1987] [divided court]; Vaccaro v Squibb Corp., 52 NY2d 809 [1980] [divided court]). Under prevailing precedent, an act that directly injures only the unborn child without a separate injury to the mother does not give rise to a viable cause of action by the mother (see Tebbutt v Virostek, supra; Miller v Chalom, 269 AD2d 37 [2000]). Where, however, the alleged act or omission breaches a duty running to the pregnant woman and results in injury to her, she may pursue a legal remedy for such conduct (see Lynch v Bay Ridge Obstetrical & Gynecological Assoc., supra; Canty v New York City Health & Hosps. Corp., 158 AD2d 271 [1990]).
Here, defendants were providing not only prenatal care to the unborn children of plaintiff Debra Ann Fahey (hereinafter plaintiff), but also were providing care to the expectant mother for the risks and complications that accompany pregnancy and childbirth.* Plaintiffs allege that defendants breached their duty to plaintiff by failing to diagnose a complication in her pregnancy and further failing to take proper action when advised of her symptoms. As a result, plaintiff, after several days of pain, suffered the traumatic and dangerous experience of suddenly and unexpectedly giving birth to a child into her own hands while in the bathroom of her home. Thereafter, she underwent a surgical procedure, which she alleges would not have been necessary had she received proper care. Supporting her contentions are the opinions of her expert, who stated in his affidavit that defendants failed to properly diagnose plaintiff’s condition despite “prominent heralding signs of a potential cervical incompetence” and, later, when notified of plaintiff’s continuing symptoms, defendants “departed from good and accepted medical care when they failed to advise [plaintiff! to go immediately to the hospital.” The expert further opined that the surgical procedure that plaintiff underwent “may not have been necessary had her pregnancy been handled within the acceptable standard of care.”
Viewed in the light most favorably to plaintiffs, the proof is sufficient, in my opinion, to raise factual issues as to whether defendants breached a duty owed directly to plaintiff which caused her to sustain compensable injuries. Plaintiffs are not asserting emotional distress for injuries inflicted directly upon the unborn children. Plaintiffs allege a breach of a duty owed by defendants to plaintiff to provide her with competent medi*1074cal care regarding her pregnancy (cf. Lynch v Bay Ridge Obstetrical & Gynecological Assoc., supra at 635). In addition to having a potentially unnecessary surgery as a result of the alleged breach, the injury she suffered by unexpectedly delivering a child at home — after being assured that she was merely suffering pain caused by the position of a fetus and from something she ate — is traumatic and dangerous in the same fashion as delivering a child after a botched abortion .(see Ferrara v Bernstein, 179 AD2d 79 [1992], affd 81 NY2d 895 [1993]). I would therefore reverse and deny defendants’ motion for summary judgment. Ordered that the order is affirmed, with costs.
Indeed, such risks and complications continue to be a leading cause of mortality among young women in many areas of the world (see e.g. Unicef, The Progress of Nations 1997, at 48).