Aquilio v. Nelson

Decision Date23 December 1980
Citation78 A.D.2d 195,434 N.Y.S.2d 520
PartiesDonald AQUILIO and Daria Aquilio, as Parents and Natural Guardians of Jason Aquilio, Deceased, and Donald Aquilio, as Administrator of the Goods, Chattels and Credits of Jason Aquilio, Appellants, v. Irving NELSON and James Howard, Respondents.
CourtNew York Supreme Court — Appellate Division

Birnbaum & Manaker, P. C., Syracuse, for appellants; Ralph Manaker, Syracuse, of counsel.

Martin, Ganotis & Brown, Syracuse, for respondents; George F. Mould, Syracuse, of counsel.



The sole question is whether damages are recoverable for emotional and mental harm suffered by the plaintiff mother as a result of the death of her infant the day following its birth, allegedly caused by the malpractice of the defendants, an attending gynecologist and a pediatrician. This question must be answered in the negative.

This action for medical malpractice, negligence, breach of contract and fraud arose out of the care and treatment of plaintiff Daria Aquilio by defendants Irving Nelson and James Howard during the course of her pregnancy. The alleged cause of death was thrombocytopenia and/or respiratory distress syndrome or hylem membrane disease as a result of prematurity.

The complaint alleges that the plaintiff Daria Aquilio was treated by the two defendant doctors and in 1976 was found to be pregnant. Thereafter it is alleged that the defendants were informed of a blood incompatibility between the pregnant mother and her husband, plaintiff Donald Aquilio. The complaint further alleges that the doctors had been advised of the birth of plaintiffs' first child who had developed thrombocytopenia at birth and alleged that the defendants knew that plaintiffs' second child would develop the same disease but failed to render proper medical care as a result of which the child died. The first cause of action is for wrongful death due to defendants' malpractice. The second cause of action seeks recovery for emotional and psychological pain and suffering and mental and physical injury to plaintiff Daria Aquilio. The third cause of action seeks recovery for identical damages with respect to Donald Aquilio. The fourth cause of action alleges the same damages and is based on breach of contract. The fifth cause of action seeks recovery for the medical and surgical expenses, as well as the aforementioned emotional and psychological damages, based on defendants' gross negligence in failing "to take any steps to care for the infant plaintiff even after acquiring the knowledge that the deceased infant plaintiff would likely develop thrombocytopenia." The sixth, and final cause of action, is based on defendants' fraudulent representations that they were familiar with the medical and hospital records of Daria Aquilio concerning the birth of her first child, and that they were prepared to handle any problems resulting from plaintiffs' blood incompatibility, particularly thrombocytopenia, likely to develop in the second child.

Defendants moved to dismiss the second, third and fourth causes of action for failure to state a claim upon which relief may be granted (CPLR 3211, subd. (a), par. 7), and moved for summary judgment dismissing the fifth and sixth causes of action (CPLR 3212). Plaintiffs cross-moved to amend the fourth cause of action to allege a breach by defendants of a specific agreement whereby defendants would contact Daria Aquilio's prior physicians and obtain her prior medical history. Special Term dismissed the second, third and fourth causes of action, granted summary judgment in defendants' favor on the sixth cause of action and also granted summary judgment in defendants' favor on that portion of the fifth cause of action which seeks recovery for emotional, psychological and physical pain and suffering. Plaintiffs' cross-motion was denied.

It may be that the rule denying recovery for emotional harm suffered by one person as a result of injuries sustained by another should be eliminated (see, e. g., Torts-Emotional Distress-Failure of Physician to Diagnose Birth Defect-Parents' Right of Recovery-Howard v. Lecher, 24 N.Y.L. School Rev. 502). So long as the Court of Appeals' recently decided case of Howard v. Lecher, 42 N.Y.2d 109, 397 N.Y.S.2d 363, 366 N.E.2d 64 remains viable, however, it is not appropriate for this court to attempt it.

In Howard, the Court of Appeals denied recovery for emotional harm suffered by parents whose child was born with Tay-Sachs disease, a progressive genetic disorder affecting the nervous system. The parents had alleged that the defendant doctor failed to inform them of a test to determine the existence of the disease, and that they would have undergone the tests, and aborted the pregnancy if they had discovered that the fetus was afflicted with Tay-Sachs. The basis of the court's holding was the so-called "bystander rule" which generally prevents recovery for emotional harm resulting from physical injuries sustained by another. As articulated in Tobin v. Grossman 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419, this rule reflects a policy decision by the State's highest court to "limit the legal consequences of wrongs to a controllable degree" (Tobin v. Grossman, supra, p. 619, 301 N.Y.S.2d 554, 249 N.E.2d 419).

This case, just as Howard and Tobin, involves the twin problems of (1) recoverability for injuries sustained as a result of psychological impact, and (2) the scope of duty to one who is not directly the victim of an accident causing physical injury to a third person. It has become well-settled in New York that recovery may be had for emotional harm, absent fear of potential physical injury to one subjected directly to the negligence of another, so long as the psychic injury was genuine, substantial and proximately caused by the defendant's conduct (Howard v. Lecher, 42 N.Y.2d 109, 111-112, 397 N.Y.S.2d 363, 366 N.E.2d 64, supra; Johnson v. State of New York, 37 N.Y.2d 378, 383, 384, 372 N.Y.S.2d 638, 334 N.E.2d 590; Battalla v. State of New York, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729). Recovery has been denied for emotional injuries suffered as a result of physical injuries sustained by another (Howard v. Lecher, supra; Tobin v. Grossman, supra). The Court of Appeals reaffirmed Howard in the companion cases of Becker v. Schwartz and Park v. Chessin, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807, which involved the failure of physicians to advise potential parents of the likelihood of birth defects at a time when pregnancy could have been either prevented or aborted. The court acknowledged that the physicians had breached a duty to the parents, but denied recovery for psychic or emotional harm on the ground that calculation of damages would be too speculative, since a proper calculation would require juries to subtract the love that parents experience in having a child, even though abnormal, from the anguish which they suffer upon the birth of such a child (Becker v. Schwartz, supra, pp. 414-415, 413 N.Y.S.2d 895, 386 N.E.2d 807).

Howard and the instant case both involve a breach of duty to the mother as well as to the infant. This is unlike the typical bystander case which involves a breach of duty only to the victim. The mother in this case, by virtue of her unique physiological relationship with the fetus, was more than a mere bystander. However, it does not logically follow as the dissenter would hold, that defendants, having breached the duty of care to the mother, are liable for all the ensuing damages, including emotional harm and mental suffering. The injuries complained of did not arise directly from the defendants' breach of this duty, as in Johnson. Instead they arose indirectly from the loss of the child.

In order to recover for emotional harm, plaintiff must show, in addition to a breach of duty owed to her, that she was the person directly injured by that breach. As stated by the Appellate Division Second Department in Howard, "... the fact is that the injury from which their alleged emotional harm stemmed was suffered by the child. The risk of indirect harm from the loss or injury of loved ones is pervasive and inevitably realized at one time or another. Only a very small part of that risk is brought about by the culpable acts of others. This is the risk of living and bearing children" (Howard v. Lecher, 53 A.D.2d 420, 423, 397 N.Y.S.2d 363, 366 N.E.2d 64, affd. 42 N.Y.2d 109, supra). This view precisely reflects what we believe is the present state of the law in New York. We recognize that this is not a "wrongful life" case and does not involve a speculative measure of damages (Becker v. Schwartz, 46 N.Y.2d 401, 414-415, 413 N.Y.S.2d 895, 386 N.E.2d 807, supra). At the same time, practically speaking, we are aware that public policy considerations are closely interwoven in defining the perimeters of the concept of "duty" where its definition is an issue in an action for emotional distress (see Donohue v. Copiague Union Free School Dist., 47 N.Y.2d 440, 445, 418 N.Y.S.2d 375, 391 N.E.2d 1352). We are persuaded that the emotional pain and suffering are too remote to be compensable upon the policy considerations expressed in Howard and recovery of damages for such injuries is, therefore, barred by that decision of the Court of Appeals.

The order should be affirmed.

Order affirmed without costs.

DILLON, P. J., and CALLAHAN and MOULE, JJ. concur.

HANCOCK, J., dissents and votes to modify the order in the following opinion.

HANCOCK, Justice (dissenting):

For the following reasons I must respectfully dissent. Plaintiff Daria Aquilio does not seek to recover damages for the psychic and emotional shock she sustained from witnessing injuries to her child resulting from the doctors' breach of duty owed to the child under the theory rejected in Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419,...

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