Cohen v. Cabrini Med. Ctr.

• Decision Date: 04 May 2000
• Citation: 730 N.E.2d 949,709 N.Y.S.2d 151,94 N.Y.2d 639
• Parties: ALAN P. COHEN et al., Appellants, v. CABRINI MEDICAL CENTER et al., Defendants, and RICHARD AMELAR, Respondent.
• Court: New York Court of Appeals Court of Appeals

94 N.Y.2d 639

730 N.E.2d 949

709 N.Y.S.2d 151

ALAN P. COHEN et al., Appellants, v. CABRINI MEDICAL CENTER et al., Defendants, and RICHARD AMELAR, Respondent.

Court of Appeals of the State of New York.

Argued April 4, 2000.

Decided May 4, 2000.

Warner & Joselson, New York City (Jonathon D. Warner of counsel), for appellants.

Kopff, Nardelli & Dopf, L. L. P., New York City (Martin B. Adams of counsel), for respondent.

Chief Judge KAYE and Judges BELLACOSA, SMITH, CIPARICK, WESLEY and ROSENBLATT concur.

OPINION OF THE COURT

LEVINE, J.

Plaintiff Amy Margolis appeals from an Appellate Division order affirming dismissal of her cause of action for personal injuries she allegedly suffered by reason of the medical malpractice of defendant Dr. Richard Amelar in performing surgery upon her husband, plaintiff Alan P. Cohen. As set forth in the complaint, bill of particulars and other submissions in opposition to defendant's motion to dismiss, Margolis alleges that, after unsuccessful efforts to conceive a child and consultations with various fertility experts, she and her husband consulted with Amelar, a urologist who specializes in male infertility. Upon Amelar's recommendation, Cohen decided to undergo a bilateral varicolectomy, a surgical procedure to enhance his fertility. Amelar told the couple that there was a 50-70% chance of success and provided them with a study he had co-authored, "Varicole and Male Infertility: 25 Years' Experience."

Amelar performed the surgery two months later at defendant Cabrini Medical Center. Instead of improving Cohen's fertility, however, the complaint alleges that his sperm count dropped because Amelar improperly removed a section of artery as well as vein during the surgery. As a result, Margolis contends that she could be impregnated only through in vitro fertilization (IVF). After undergoing eight unsuccessful IVF attempts using Cohen's sperm and her own eggs, she finally became impregnated on the ninth attempt, in which donor eggs and Cohen's sperm were used.

Both plaintiffs then commenced this action for damages caused by defendant's alleged medical malpractice. The complaint contains three causes of action: (1) for personal injuries sustained by Cohen, (2) for personal injuries sustained by Margolis and (3) a derivative claim for Margolis' loss of consortium. Amelar moved to dismiss the second cause of action for Margolis' injuries and to strike from her bill of particulars any claims related to her pain, suffering and mental anguish due to the IVF procedures and her inability to bear her own genetic children with Cohen. Supreme Court granted defendant's motion.

The Appellate Division unanimously affirmed on the ground that Amelar did not owe Margolis any duty of care as she was not his patient (262 AD2d 159). It then certified the following question to this Court: "Was the order of the Supreme Court, as affirmed by this Court, properly made?" We answer that question in the affirmative.

The personal injuries for which plaintiff Margolis seeks recovery here consist of psychological harm attributable to her loss of opportunity to achieve normal conception by her husband, and physical and psychological harm, plus pecuniary loss, all resulting from undergoing IVF procedures in order to conceive. The courts below properly held that plaintiff cannot recover because Amelar was under no legal duty of care to her to prevent those injuries.

The imposition of a legal duty of care does not turn merely on the foreseeability of the harm resulting from an actor's conduct (see, Tobin v Grossman, 24 NY2d 609, 615), a factor heavily relied upon by plaintiff here. Rather, as we have repeatedly emphasized, "[c]ourts resolve legal duty questions by resort to common concepts of morality, logic and considerations of the social consequences of imposing the duty" (Tenuto v Lederle Labs., 90 NY2d 606, 612).

No duty can be imposed here on the basis of a doctor-patient relationship between plaintiff and Amelar. While plaintiff did participate in her husband's consultation with the doctor, no treatment or care of plaintiff was ever contemplated. Although in limited circumstances a physician's duty of care has been extended to a patient's family members, our courts have been especially circumspect in doing so. Thus, no duty was found to run to parents from a physician who failed to make a timely diagnosis of their child's meningitis, to prevent emotional harm from either "witnessing their child's deterioration from meningitis, [or] for the fear that they themselves might have contracted meningitis" (Landon v New York Hosp., 101 AD2d 489, 490, affd for reasons stated below 65 NY2d 639).

On the other hand, in Tenuto (supra), we posited a pediatrician's duty of care extending to the parent of an infant vaccinated for paralytic poliomyelitis. Allegedly because of the physician's failure to warn or advise the parent to take precautions against "contact" polio, which results from contact with the feces or saliva of one who had received this specific form of polio vaccine, the parent became infected with the disease and was rendered a paraplegic. The parent's averments in Tenuto were sufficient to establish a special relationship connecting physician, child and parent, and the resultant duty of care to the parent. The critical factors we identified in extending the duty included (1) the parent had engaged the physician and relied exclusively on his...