Clegg v. Chase

• Decision Date: 17 February 1977
• Citation: 89 Misc.2d 510,391 N.Y.S.2d 966
• Parties: Bobbie Jean CLEGG, Individually and as mother and natural guardian of Vonetta Lavonne Clegg, an infant under the age of 14 years, Plaintiffs, v. William J. CHASE, Defendant.
• Court: New York Supreme Court

Page 966

391 N.Y.S.2d 966

89 Misc.2d 510

Bobbie Jean CLEGG, Individually and as mother and natural

guardian of Vonetta Lavonne Clegg, an infant under

the age of 14 years, Plaintiffs, v. William J. CHASE, Defendant.

Supreme Court, Orange County.

Feb. 17, 1977.

Finkelstein, Mauriello, Kaplan & Levine, P.C., Newburgh, for plaintiffs.

Clark, Gagliardi & Miller, White Plains, for defendant.

JOHN W. SWEENY, Justice.

Defendant physician has moved to dismiss two causes of action alleged by plaintiff mother and her infant daughter. Both causes of action essentially seek the same quantum of damages for the economic injury which has been and will be sustained as the result of the birth of the infant plaintiff following the alleged negligence of the defendant in performing a tubal ligation upon the plaintiff mother.

Each cause of action contains two separate theories for recovery, viz, breach of warranty and negligence.

Plaintiffs' warranty actions must be dismissed since the complaint does not allege the existence of a special contract, accompanied by consideration separate and distinct from the fee for the sterilization operation (Robins v. Finestone, 308 N.Y. 543, 127 N.E.2d 330; Herrera v. Roessing, Colo.App., 533 P.2d 60 (1975); Rogala v. Silva, 16 Ill.App.3d 63, 305 N.E.2d 571 (1973); Ann. 43 A.L.R.3d 1221).

The remaining issue then is whether or not New York State recognizes a negligence cause of action against a physician for the economic loss which is sustained due to an unwanted conception and subsequent birth of a normal and healthy infant. Plaintiffs herein seek to recover both for medical expenses incident to the pregnancy and for the expense of rearing and educating the infant.

The Appellate Division of the Fourth Department has sanctioned such a cause of action against a physician who had misprescribed birth control medication and then misdiagnosed a pregnancy. The cause of action which the court recognized was one which sought recovery for educational and medical expenses of the child as well as for the mother's inability to earn a living by reason of her obligation to raise the child (Ziemba v. Sternberg, 45 A.D.2d 230, 357 N.Y.S.2d 265). In Cox v. Stretton, 77 Misc.2d 155, 352 N.Y.S.2d 834, the court recognized a cause of action on behalf of a parent for the damages incurred and to be incurred in raising, supporting and educating an unplanned, and as in this case, healthy child who was conceived after an alleged improperly performed vasectomy.

In both Ziemba and Cox, supra, the courts concluded that the decision in Stewart v. Long Is. Coll. Hosp., 35 A.D.2d 531, 313 N.Y.S.2d 502, aff'd. 30 N.Y.2d 695, 332 N.Y.S.2d 640, 283 N.E.2d 616 (parents of deformed child suing for mental anguish based on hospital's refusal to perform abortion in 1964) was no longer viable due to the 1970 amendment of § 125.05 of the Penal Law.

Notwithstanding these two precedents, there is the more recent and authoritative decision of the Second Department Appellate Division in Greenberg v. Kliot, 47 A.D.2d 765, 367 N.Y.S.2d 966, leave to appeal denied 37 N.Y.2d 707, 375 N.Y.S.2d 1026, 337 N.E.2d 618, as well as the First Department's decision in Johnson v. Yeshiva University, 53 A.D.2d 523, 384 N.Y.S.2d 455, to be considered.

Contrary to Ziemba and Cox, supra, each of these later cases relies upon the continued viability of Stewart, supra, and the proposition stated therein that causes of action based on failure to terminate (abort) life were not previously known to the law. The Stewart court had concluded that such causes of action should await legislative sanction and should not be accepted by judicial fiat, citing Williams v. State of New York, 18 N.Y.2d 481, 276 N.Y.S.2d 885, 223 N.E.2d 343, and Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419.

In Greenberg, supra, the mother of a physically and mentally defective infant brought suit against a physician who allegedly had refused to perform an 'amniocentesis test'. The parent alleged that had the test been performed, the results would have indicated a defective fetus and that she would have obtained a thereapeutic abortion. The complaint sought damages on behalf of the infant for its own agony of existence and damages on behalf of the mother for the pain and suffering, as well as mental anguish sustained both during the time of gestation and the anguish and hardship which she would endure raising a handicapped child.

The dismissal of the 'wrongful life' causes of action in Greenberg, supra, was affirmed by the Appellate Division with only a very terse reference to Stewart, supra.

In Johnson, supra, the defendant medical center and doctors were alleged to have in substance failed to order or properly perform amniotic fluid tests, failed to have advised the plaintiff mother than she should have legally aborted a fetus, and in fact incorrectly advised her that the infant in question would be born without mental or physical defects. In the fifth cause of action, the father of this handicapped infant sued for damages for the past, present and future care and treatment of his infant son. The Appellate Division of the First Department affirmed the dismissal of this cause of action for...