Bessette v. St. Peter's Hospital

• Citation: 51 A.D.2d 286,381 N.Y.S.2d 339
• Parties: Eugene B. BESSETTE et al., Appellants, v. ST. PETER'S HOSPITAL et al., Respondents.
• Decision Date: 18 March 1976
• Court: New York Supreme Court — Appellate Division

Page 339

381 N.Y.S.2d 339

51 A.D.2d 286

Eugene B. BESSETTE et al., Appellants, v. ST. PETER'S HOSPITAL et al., Respondents.

Supreme Court, Appellate Division, Third Department.

March 18, 1976.

Daniel H. Mahoney, Albany, for appellants.

Carter, Conboy, Bardwell, Case & Blackmore, Albany (Forrest N. Case, Jr., Albany, of counsel), for respondents.

Before KOREMAN, P.J., and SWEENEY, KANE, MAHONEY and LARKIN, JJ.

MAHONEY, Justice.

Plaintiffs, husband and wife, brought suit premised on alleged malpractice of the defendants resulting in the amputation of the husband's right leg. The dismissed paragraph (25) is part of the wife's derivative action whereby, in addition to such consortium damages as loss of support, services, love, companionship, affection and society (Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 293 N.Y.S.2d 305, 239 N.E.2d 897), she seeks to recover for the mental and emotional anguish she was caused to suffer by witnessing her husband's suffering and eventual amputation.

This case falls squarely within the holding of the Court of Appeals in Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419, that a mother may not recover against a tort-feasor for her mental and physical injuries caused by shock and fear for her two-year-old child who suffered serious injuries in an automobile accident. While the Tobin majority did not disturb the rule enunciated in Battalla v. State of New York, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729, that one may have a cause of action for injuries sustained although precipitated by a negligently induced mental trauma without physical impact, it did insist that one seeking recovery on such a theory, if not a participant and, therefore, one to whom the negligent actor clearly owed a duty, must case himself in a posture that would enable a court to perceive a duty, in light of modern realities affecting psychological causation (Id. at 242, 219 N.Y.S.2d at 38, 176 N.E.2d at 731); Ferrara v. Galluchio, 5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249, or the lack of difference between a consortium claim by a wife from that of a husband (Millington v. Southeastern Elevator Co., supra) or a previously enforced artificial barrier to an action (Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192), owed the plaintiff, albeit, the duty owed by the wrongdoer had not heretofore been judicially recognized. In other words, the duty perceived is not new; it has always existed and...