concurrence">Murphy, P. J.

(concurring). While I agree with the majority that plaintiff’s damage claim for psychic injury meets the current standards for such recovery, I cannot agree with the majority’s reasoning in applying that standard. Therefore, I write separately to address the issue of when damages may be recovered for psychic injuries under existing law.

The emerging body of law governing when damages for psychic injury may be recovered has eliminated the former "bright line” requirement that in all cases plaintiff must show independent physical injuries before such damages may be allowed. (See, Lynch v Bay Ridge Obstetrical & Gynecological Assocs., 72 NY2d 632; Martinez v Long Is. Jewish Hillside Med. Center, 70 NY2d 697; Johnson v State of New York, 37 NY2d 378; Battalla v State of New York, 10 NY2d 237.) In its stead we are left with an amorphous standard, essentially deciding on a case-to-case basis whether the circumstances provide a "guarantee of genuineness” (see, Ferrara v Galluchio, 5 NY2d 16, 21), or whether public policy precludes recovery. (See, Howard v Lecher, 42 NY2d 109.)

There is little doubt that on this record the psychic injuries claimed by plaintiff are genuine. The only remaining issue is what limits, if any, public policy places on the availability of such damages after Lynchand Martinez.

This evolving doctrine is grounded upon a line of sharply divided appellate decisions. The Court of Appeals has delineated some recurring factual situations where damages for purely emotional injury will not be permitted on public policy grounds. (See, Howard v Lecher, supra; Tobin v Grossman, 24 NY2d 609; Johnson v Jamaica Hosp., 62 NY2d 523; Kennedy v McKesson Co., 58 NY2d 500; Tebbutt v Virostek, 65 NY2d 931.) The court has also permitted recovery, in the absence of *88physical impact or independent physical injuries, in a series of fact-specific cases that provide little general guidance as to when such damages are available. (See, Battalla v State of New York, supra; Martinez v Long Is. Jewish Hillside Med. Center, supra; Lynch v Bay Ridge Obstetrical & Gynecological Assocs., supra.)

The majority is correct that this case involves breach of a duty owed directly to the plaintiff and is not a claim for damages for injuries to the fetus. It is thus clearly distinguishable from the bystander cases such as Tobin v Grossman (supra)and Bovsun v Sanperi (61 NY2d 219).

I disagree, however, with the majority’s view that the failure to notify plaintiff of the results of the pathology test constituted "erroneous advice on which she affirmatively acted in deciding to have an abortion.” (See, Lynch v Bay Ridge Obstetrical & Gynecological Assocs., supra; Martinez v Long Is. Jewish Hillside Med. Center, supra.) Lynch and Martinezare factually distinct from this case in that both of those cases involved a pregnant woman being presented with the choice of having an abortion or possibly bearing a child with birth defects caused by ingestion of a prescription drug contraindicated during pregnancy. Here, unlike in Lynchand Martinez, the decision to have an abortion had been affirmatively made and that decision was not necessitated by any medical breach. Were this not so, the claim would be entirely barred by Koehler v Schwartz (48 NY2d 807). Thus, the exceptional circumstances present in Lynchand Martinez, the obvious mental anguish of being forced into aborting a wanted child against the plaintiffs religious beliefs, are not present here.

I also disagree with the majority’s implicit holding that plaintiff suffered independent physical injuries. In my view, the cramps and pain that plaintiff suffered in connection with the spontaneous abortion are too subjective and short-lived to constitute physical injury. By analogy, the pain and suffering normally associated with childbirth has not been viewed as an independent physical injury. (See, Tebbutt v Virostek, 65 NY2d 931; Ramos v City of New York, 169 AD2d 687; Wittrock v Maimonides Med. Center — Maimonides Hosp., 119 AD2d 748.)

Thus, this case must be viewed as a claim for damages for psychic injury without independent physical injury. The issue thus becomes what limitations public policy places on the scope of liability for purely psychic harm, where the duty breached is owed directly to the plaintiff, and there is no independent physical injury.

*89Until it was specifically overruled by Battalla (supra),the rule of Mitchell v Rochester Ry. Co. (151 NY 107) that damages are not allowable for mere fright without physical impact, applied to bar most claims for purely psychic harm. In Mitchell, the plaintiff, a pregnant woman, was waiting in a crosswalk to be picked up by the defendant railroad when a horse-driven carriage owned by the railroad stopped so close to her that she was standing between the heads of the lead horses. She fainted and suffered a miscarriage, but there was no physical impact. It was held there that if no recovery could be had for mere fright, then no recovery could be allowed for its consequences. The logic behind this conclusion was later questioned in Comstock v Wilson (257 NY 231) but the Com-stock court supported the public policy basis of the ruling (supra, at 234-235).

In Battalla v State of New York (supra), the infant plaintiff was permitted to assert a cause of action for emotional damages resulting from being negligently secured in a ski lift at a State-owned resort by a State employee. She became hysterical while in the air, but suffered no physical injuries. The Battalia rule was later interpreted as providing an exception to the general rule where the plaintiff is subjected to fear of physical injuries. (See, Howard v Lecher, supra, 42 NY2d, at 111.)

It should be noted that in the present case there is no evidence that plaintiff ever was in fear of personal injury. In fact, by her own testimony, the sole basis for her claim for psychic injury, is that her trauma resulted from viewing the aborted fetus hanging into the toilet.

After Battalla (supra),those cases in which the Court of Appeals permitted recovery for psychic harm without independent physical injuries were narrowly drawn. In Johnson v State of New York (supra), the defendant hospital negligently notified the plaintiff that her mother had died when in fact she had not. The court permitted recovery for emotional harm, in the absence of independent physical injuries. However, it should be noted that the court in Johnson specifically acknowledged that the common law had long recognized a minority rule exception to the general rule in cases involving erroneous notifications of death of a close relative (supra, at 381-382).

In the bystander cases, where a plaintiff is not directly injured but seeks damages for injuries caused to another, *90usually a close relative, liability is now limited to those within the zone of injury. (See, Bovsun v Sanperi, supra.)However, in cases such as the present case, where the duty is owed directly to the plaintiff and that duty is breached, there is currently no standard by which a court can determine the limits of liability. The rule of Howard v Lecher (supra)denying recovery on public policy grounds, offers no guidance as to when public policy denies recovery. In Howard, the defendant obstetrician negligently failed to test the expectant plaintiff for Tay-Sachs disease, a genetic disorder for which people of eastern European ancestry are at known risk. The mother gave birth to a child with the disease and argued that she would have aborted the pregnancy had the test been performed. She sought damages for the emotional injury of watching her child degenerate and die. The court held that the duty breached was owed directly to her but denied recovery on grounds of public policy. The court reasoned that allowing recovery would have "inevitably [led] to the drawing of artificial and arbitrary boundaries.” (42 NY2d, at 113, supra.)

This case illustrates the need for the formulation of a practical rule for cases where the duty breached is owed directly to the plaintiff and the claim asserted is not vicarious. Bovsun (supra)established a "zone of injury” rule providing a practical boundary for liability in vicarious injury cases. In cases such as this, the logical progeny of Howard v Lecher (supra),what is needed is what the court in Tobin called the "most difficult factor”, a "reasonable circumscription, within tolerable limits required by public policy, of a rule creating liability.” (See, Tobin v Grossman, supra, 24 NY2d, at 617; Bovsun v Sanperi, supra.)Until we have such a formulation, awards such as presented here must be allowed inasmuch as the circumstances of this case are sufficient to permit the jury to decide whether the claim is spurious. (See, Kennedy v McKesson Co., supra, 58 NY2d, at 504-505, citing Lando v State of New York, 39 NY2d 803; Johnson v State of New York, supra; Battalla v State of New York, supra.)

Sullivan, Milonas and Rosenberger, JJ., concur with Asch, J.; Murphy, P. J., concurs in a separate opinion.

Orders of the Supreme Court, New York County, entered *91March 5, 1990, and June 7, 1990, which, inter alia, denied defendants-appellants’ motion to dismiss the plaintiffs complaint, but granted the motion to set aside the verdict unless the parties stipulated to the sum of $125,000 as damages, are affirmed, without costs or disbursements.

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