Creed v. United Hosp.

• Decision Date: 06 July 1993
• Citation: 190 A.D.2d 489,600 N.Y.S.2d 151
• Parties: Cora Balafas CREED, et al., Respondents, v. UNITED HOSPITAL, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 151

600 N.Y.S.2d 151

190 A.D.2d 489

Cora Balafas CREED, et al., Respondents, v. UNITED HOSPITAL, et al., Appellants.

Supreme Court, Appellate Division Second Department.

July 6, 1993.

Marion Polovy, New York City, for appellant Albert Parker.

Bower & Gardner, New York City (Howard R. Cohen and Richard W. Derry, of counsel), for appellants United Hosp. and I.V.F. Australia (USA) Ltd.

Jason Shulman, New York City, for respondents.

Before MANGANO, P.J., and O'BRIEN, RITTER and PIZZUTO, JJ.

MANGANO, Presiding Justice.

The primary issue to be resolved on this appeal is whether the plaintiffs' malpractice action, which seeks damages for emotional and psychic injuries only, can withstand a motion to dismiss for failure to state a cause of action. In our view, this question must be answered in the negative.

I

The defendant Dr. Albert Parker was retained under a written agreement with the defendant I.V.F. Australia (USA) Ltd. (hereinafter I.V.F. [USA], to assist in the performance of in vitro fertilizations. In 1987, the plaintiffs, a married couple, enrolled in the in vitro fertilization program conducted by these defendants, and, in October 1987, in vitro fertilization of ova of the wife was achieved. While the wife was in the operating room for the purpose of having her fertilized ova implanted, she was advised by the defendant Parker that he had previously implanted her fertilized ova in another woman.

The plaintiffs commenced the instant action alleging, inter alia, that the defendants Parker and I.V.F. (USA) had committed malpractice in implanting the wife's fertilized ova in the wrong woman. Although the complaint alleges in boilerplate language that the wife had suffered "injuries both internal and external" as a result of the malpractice, the crux of the damages sought by the plaintiffs can be found in paragraph "TWELFTH" of the complaint which states that the wife suffered "serious and permanent injury to her psyche" as a result of the malpractice. In addition, the husband interposed a cause of action to recover damages for loss of consortium.

The defendant Parker moved, and the defendants United Hospital and I.V.F. (USA) separately moved, inter alia, to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action.

The Supreme Court denied these motions on the ground that the complaint alleged "physical and emotional injuries" and therefore stated a "prima facie cause of action".

II

In our view, the complaint must be dismissed on the ground that it fails to state a cause of action.

We note that although the complaint states that the wife "suffered injuries both internal and external" as a consequence of the malpractice, the affidavits submitted by the plaintiffs, in opposition to the defendants' motions to dismiss for failure to state a cause of action, are totally silent on this issue. In an apparent attempt to cure this omission, the plaintiffs' appellate brief states that:

"[t]he physical intrusion into the body of the wife, under anesthesia, to extract [ova], for in vitro fertilization, entitles plaintiffs to recover for physical injury and emotional harm, resulting from the malpractice of defendants in implanting the wife's [ova] into the wrong woman."

It is well settled that the "circumstances under which recovery may be had for purely emotional harm are extremely limited and, thus, a cause of action seeking such recovery must generally be premised upon a breach of a duty owed directly to the plaintiff which either endangered the plaintiff's physical safety or caused the plaintiff fear for his or her own physical safety" (Lancellotti v. Howard, 155 A.D.2d 588, 589-590, 547 N.Y.S.2d 654). Thus, as an illustrative example of this rule, the courts of this State have consistently held that "absent independent physical injuries, [a] plaintiff wife may not recover for emotional and psychic harm as a result of [a] stillborn birth" (Friedman v. Meyer, 90 A.D.2d 511, 512, 454 N.Y.S.2d 909, appeal dismissed 59 N.Y.2d 763; Tebbutt v. Virostek, 102 A.D.2d 231, 477 N.Y.S.2d 776, affd. 65 N.Y.2d 931, 493 N.Y.S.2d 1010, 483 N.E.2d 1142; Wittrock v. Maimonides Med. Center-Maimonides Hosp., 119 A.D.2d 747, 501 N.Y.S.2d 764; Farago v. Shulman, 104 A.D.2d 965, 480 N.Y.S.2d 758, affd. 65 N.Y.2d 763, 492 N.Y.S.2d 32, 481 N.E.2d 572). In Farago v. Shulman, supra, the plaintiffs commenced an action to recover damages for alleged medical malpractice which resulted in the stillbirth of their child. The claimed injuries were the loss of the child and the emotional and psychological trauma resulting from that loss. In order to establish the requisite physical injury, the plaintiffs moved to amend their bill of particulars to include claims for blood loss and pain resulting from an allegedly improperly performed episiotomy and its subsequent repair. In reversing an order, inter alia, granting the plaintiffs' motion to amend their bill of particulars, this court held:

"In the instant case, the episiotomy was merely another aspect of...