Charles v. Suvannavejh

• Citation: 28 Misc.3d 1157,907 N.Y.S.2d 362
• Parties: Dionne CHARLES, as Administratrix of the Estate of Kayla Kesse Madison Charles, Deceased Infant, and Dionne Charles, Individually, Plaintiffs v. Chaisurat SUVANNAVEJH, M.D., Fergal D. Malone, M.D., Michael J. Orfino, M.D., Elizabeth Riley, R.N., Susan Zucchero, R.N., and Lawrence Hospital Center, Defendants.
• Decision Date: 17 November 2009
• Court: New York Supreme Court

907 N.Y.S.2d 362

28 Misc.3d 1157

Dionne CHARLES, as Administratrix of the Estate of Kayla Kesse Madison Charles, Deceased Infant, and Dionne Charles, Individually, Plaintiffs

v.Chaisurat SUVANNAVEJH, M.D., Fergal D. Malone, M.D., Michael J. Orfino, M.D., Elizabeth Riley, R.N., Susan Zucchero, R.N., and Lawrence Hospital Center, Defendants.

Supreme Court, Bronx County, New York.

Nov. 17, 2009.

Stephen D. Chakwin Jr. Esq., New York, for Plaintiff.

Martin B. Adams Esq., Kopff, Nardelli & Dopf LLP, New York, for Defendant Suvannavejh.

Adam T. Brown Esq. and Michael N. Roman Esq., Pilkington & Leggett, P.C., White Plains, for Defendants Zucchero and Lawrence Hospital Center.

LUCY BILLINGS, J.

I. BACKGROUND

Plaintiff, on her and her deceased daughter's behalf, sues defendants for medical malpractice and the daughter's wrongful death. The remaining defendants, defendant Suvannavejh and defendants Zucchero and Lawrence Hospital Center, separately move for summary judgment dismissing plaintiff mother's claims for emotional distress and lost society, comfort, and affection. Suvannavejh also seeks dismissal of the mother's claims for lost support, services, and protection. C.P.L.R. § 3212(b) and (e).

The difficult issue concerns the mother's claim for emotional distress: whether it falls under Broadnax v. Gonzalez, 2 N.Y.3d 148, 777 N.Y.S.2d 416, 809 N.E.2d 645 (2004), where a mother may recover for emotional distress when her child is stillborn due to medical malpractice, or Sheppard-Mobley v. King, 4 N.Y.3d 627, 797 N.Y.S.2d 403, 830 N.E.2d 301 (2005), where a mother may not recover for emotional distress when her child is born alive and then dies due to malpractice. In the latter instance, the court must dismiss the mother's claim for emotional distress, but may retain her claims for lost support, services, or protection, insofar as they are of pecuniary value, and other pecuniary loss from the child's wrongful death.

In opposition to defendants' motions, the mother maintains that her action is closer to Broadnax, and the current record raises a factual issue whether her child was stillborn, since defendants do not show that the child took a breath or had a heartbeat. Defendants point out, however, that insofar as they failed to make that showing, it was unnecessary, because the mother pleaded a Sheppard-Mobley claim. Consequently, plaintiff mother now moves to amend her complaint and bills of particulars to clarify her alternative theories.

For the reasons explained below, the court determines defendants' motions for partial summary judgment and plaintiff's subsequent motion to amend her pleadings as follows. The court grants plaintiff's motion to amend her complaint and bill of particulars as specified, on the condition that the note of issue is vacated to provide defendants an opportunity to move again for partial summary judgment on her claim for emotional distress, unless defendants stipulate that the note of issue not be vacated. C.P.L.R. §§ 3025(b), 3212(a). Therefore the court denies defendants' current motions for partial summary judgmentwithout prejudice, insofar as they seek dismissal of her claim for emotional distress. C.P.L.R. § 3212(b) and (e).

Regarding the claims that remain unaffected by plaintiff's proposed amendments, the court denies defendants' current motions, with prejudice, insofar as they seek dismissal of the mother's claims for lost support, services, or protection that are of pecuniary value or other pecuniary loss from the child's wrongful death. The court grants defendants' current motions insofar as they seek dismissal of the mother's claims for loss of the child's services during the child's life and for loss of the child's society, comfort, and affection, whether during the child's life or due to the child's wrongful death. Id.

II. PLAINTIFF MOTHER'S CLAIMS FOR PECUNIARY LOSS

If plaintiff ultimately prevails on her claim that her child was stillborn due to medical malpractice and never born alive, then the expectant mother may recover for her resulting emotional distress, but may not recover on behalf of the unborn child, who, having not been born alive, would have no estate. Sheppard-Mobley v. King, 4 N.Y.3d at 636-37, 797 N.Y.S.2d 403, 830 N.E.2d 301; Broadnax v. Gonzalez, 2 N.Y.3d at 154-55, 777 N.Y.S.2d 416, 809 N.E.2d 645. Currently, however, plaintiff still maintains her alternative theory of relief: that her child was born alive and then died due to malpractice. If plaintiff instead prevails on this claim, then she may not recover for her resulting emotional distress, Sheppard-Mobley v. King, 4 N.Y.3d at 634, 797 N.Y.S.2d 403, 830 N.E.2d 301; Warnock v. Duello, 30 A.D.3d 818, 819, 816 N.Y.S.2d 595 (3d Dep't 2006), but may recover on behalf of her deceased child's estate for any pecuniary losses resulting from her child's death.

Pecuniary losses may include medical and funeral expenses and loss of future voluntary support and assistance that the child would have provided to her mother, even of only a nominal value. Parilis v. Feinstein, 49 N.Y.2d 984, 985, 429 N.Y.S.2d 165, 406 N.E.2d 1059 (1980); Liff v. Schildkrout, 49 N.Y.2d 622, 633, 427 N.Y.S.2d 746, 404 N.E.2d 1288 (1980); Lopez v. Gomez, 305 A.D.2d 292, 292, 761 N.Y.S.2d 601 (1st Dep't 2003). The child's immediate death does not totally extinguish the claims for lost services or pecuniary loss, as long as the injuries are not speculative.

The burden falls on defendants who move for summary judgment dismissing these claims, to establish that the alleged pecuniary injuries are speculative in plaintiff's circumstances, a showing defendants fail to make. Therefore the court denies defendants' motions with prejudice, insofar as they seek dismissal of plaintiff mother's claims for lost support, services, or protection that are of pecuniary value or other pecuniary loss from the child's wrongful death. At trial, of course, plaintiff will bear the burden to demonstrate the pecuniary losses to the estate.

These claims for pecuniary losses, however, survive only as long as plaintiff continues to pursue her wrongful death theory. If she prevails on her claim that her child was stillborn due to medical malpractice and never born alive, then the expectant mother must abandon all claims premised on the wrongful death of a child born alive who then died due to malpractice. They include the claims for lost support, services, protection, or other assistance from the child of pecuniary value, due to her death. Sheppard-Mobley v. King, 4 N.Y.3d at 636-37, 797 N.Y.S.2d 403, 830 N.E.2d 301; Broadnax v. Gonzalez, 2 N.Y.3d at 154, 777 N.Y.S.2d 416, 809 N.E.2d 645.

III. PLAINTIFF MOTHER'S CLAIMS FOR LOST SOCIETY, COMFORT, AND AFFECTION

Plaintiff's claimed loss of her child's services or society, premised on her child's short life, fail in any event. Although a claim for loss of a child's services during the child's life may be viable when a child attains an age and capability to provide services, the short life span of plaintiff's child does not allow for such a claim. Given the child's short life, no such losses are demonstrable.

In no instance may a parent claim loss of a child's society, comfort, or affection. E.g., Endresz v. Friedberg, 24 N.Y.2d 478, 488, 301 N.Y.S.2d 65, 248 N.E.2d 901 (1969). Plaintiff's loss of her child's society during the child's short life is not compensable. Devito v. Opatich, 215 A.D.2d 714, 715, 627 N.Y.S.2d 441 (2d Dep't 1995). See De Angelis v. Lutheran Med. Center, 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, 449 N.E.2d 406 (1983); De'Leone v. City of New York, 45 A.D.3d 254, 255, 845 N.Y.S.2d 241 (1st Dep't 2007). Nor is lost society, comfort, or affection part of the compensable pecuniary losses suffered by the decedent child's distributees due to the child's death. N.Y. Est. Powers & Trusts Law § 5-4.3; Hernandez v. New York City Health & Hosps. Corp., 78 N.Y.2d 687, 693, 578 N.Y.S.2d 510, 585 N.E.2d 822 (1991); Gonzalez v. New York City Hous. Auth., 77 N.Y.2d 663, 667, 569 N.Y.S.2d 915, 572 N.E.2d 598 (1991); Johnson v. Manhattan & Bronx Surface Tr. Operating Auth., 71 N.Y.2d 198, 203, 524 N.Y.S.2d 415, 519 N.E.2d 326 (1988); Sand v. Chapin, 238 A.D.2d 862, 863-64, 656 N.Y.S.2d 700 (3d Dep't 1997). Such losses are never compensable, except insofar as they may bear on the mother's emotional distress from a stillbirth due to medical malpractice.

IV. PLAINTIFF'S MOTION TO AMEND HER PLEADINGS

A. APPLICABLE STANDARDS

C.P.L.R. § 3025(b) permits plaintiff to amend her complaint and bills of particulars as long as the proposed claims have merit, Fellner v. Morimoto, 52 A.D.3d 352, 353, 862 N.Y.S.2d 349 (1st Dep't 2008); Hoppe v. Board of Directors of 51-78 Owners Corp., 49 A.D.3d 477, 854 N.Y.S.2d 689 (1st Dep't 2008); Sabo v. Alan B. Brill, P.C., 25 A.D.3d 420, 421, 808 N.Y.S.2d 194 (1st Dep't 2006); Thompson v. Cooper, 24 A.D.3d 203, 205, 806 N.Y.S.2d 32 (1st Dep't 2005), and the amendments do not unfairly surprise or otherwise substantially prejudice defendants. Cherebin v. Empress Ambulance Serv., Inc., 43 A.D.3d 364, 365, 841 N.Y.S.2d 277 (1st Dep't 2007); Katechis v. Our Lady of Mercy Med. Ctr., 36 A.D.3d 514, 516, 828 N.Y.S.2d 58 (1st Dep't 2007); Thompson v. Cooper, 24 A.D.3d at 205, 806 N.Y.S.2d 32; Haggerty v. Everett Realty, 21 A.D.3d 268, 269, 800 N.Y.S.2d 7 (1st Dep't 2005). As the party seeking the amendments, plaintiff must demonstrate her proposed claims' merit. Hoppe v. Board of Directors of 51-78 Owners Corp., 49 A.D.3d 477, 854 N.Y.S.2d 689; Nathanson v. Tri-State Constr. LLC, 48 A.D.3d 373, 374, 853 N.Y.S.2d 299 (1st Dep't 2008); Robinson v. Canniff, 22 A.D.3d 219, 220, 801 N.Y.S.2d 597 (1st Dep't 2005); Zaid Theatre Corp. v. Sona Realty Co., 18 A.D.3d 352, 355, 797 N.Y.S.2d 434 (1st Dep't 2005). If she demonstrates meritorious claims, then the issue posed by her motion boils down to whether her added claims now would change defendants' position or hinder their defenses in a way that would have been...