DeAngelis v. Lutheran Medical Center

• Citation: 445 N.Y.S.2d 188,84 A.D.2d 17
• Parties: Barbara DeANGELIS, individually, etc., et al., Respondents, v. LUTHERAN MEDICAL CENTER et al., Appellants, et al., Defendants. M. Philip AMODEO, as Administrator, etc., et al., Appellants, v. Thomas N. PRECIOUS et al., Respondents.
• Decision Date: 21 December 1981
• Court: New York Supreme Court Appellate Division

Page 188

445 N.Y.S.2d 188

84 A.D.2d 17

Barbara DeANGELIS, individually, etc., et al., Respondents, v. LUTHERAN MEDICAL CENTER et al., Appellants, et al., Defendants.

M. Philip AMODEO, as Administrator, etc., et al., Appellants, v. Thomas N. PRECIOUS et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

Dec. 21, 1981.

Frank E. Maher, Brooklyn, for appellant Lutheran Medical Center, and Barry, McTiernan & Moore, New York City, for appellant Victory Memorial Hospital (one brief filed).

Stutman & Rothberg, New York City (Steven W. Stutman, New York City, of counsel), for respondents DeAngelis.

Moran, Spiegel, Palmer, Pergament & Brown, Poughkeepsie (Donald D. Brown, Jr., and Keith V. LaRose, Poughkeepsie, of counsel), for appellants Amodeo and LeHenaff.

J. George Spitz, Poughkeepsie (James M. Fedorchak, Poughkeepsie, of counsel), for respondent Thomas N. Precious.

Gross, Gross & Gross, Liberty (S. Richard Gross, Liberty, of counsel), for respondents Honda.

Before HOPKINS, J. P., and GIBBONS, RABIN and COHALAN, JJ.

GIBBONS, Justice.

The issue on these appeals is whether a child has a cause of action for the loss of parental consortium for injuries negligently inflicted on the parent by third parties. After a review of the considerable arguments that have been generated on both sides of the question, we conclude that no such cause of action should be recognized. We perceive several practical and policy considerations that support this conclusion, notwithstanding the real harm suffered by a child upon the loss of parental care, guidance and training.

In the first case, DeAngelis v. Lutheran Medical Center, Barbara DeAngelis was admitted to the Lutheran Medical Center for a tubal ligation for the purpose of sterilization. The operation was performed by defendant Dr. K. Y. Jamal. Some eleven months later, Mrs. DeAngelis was admitted to defendant Victory Memorial Hospital, allegedly for treatment of abdominal pains arising out of the prior operation. Subsequently, she commenced suit against the Lutheran Medical Center, Dr. Jamal and Victory Memorial Hospital, alleging medical malpractice, inter alia, in the diagnosis and treatment of her condition. The complaint also contained causes of action numbered fifth, sixth, seventh and eighth, which were brought on behalf of Mrs. DeAngelis' three minor children, Deirdre, Denise and Joseph, which seek damages for the children's loss of the "aid, comfort and services" of their mother. Thereafter, defendant Lutheran Medical Center moved, and the other codefendants cross-moved, for a dismissal of the afore-mentioned causes of action asserted on behalf of the children. Special Term denied the motion and cross motions, but without prejudice to renew at the time of trial.

In the companion case, Amodeo v. Precious, Francoise LeHenaff, while driving an automobile owned by her husband, Herve LeHenaff, was injured in a collision with an automobile owned and driven by Thomas Precious. ¹ The complaint alleges the negligence of Mr. Precious in the operation of his vehicle and also joins as defendants, McCallum Chevrolet, American Honda Motor Company and Honda Motor Company, which are the dealer, distributor and manufacturer, respectively, of the car driven by Mrs. LeHenaff. Causes of action for negligence in the design and manufacture of the vehicle, breach of warranty and products liability were brought against the latter three defendants. In addition, three causes of action were brought on behalf of Mrs. LeHenaff's two minor children, Sophie and Laurent, seeking damages for the lost "society, services and companionship" of their mother. Subsequently, Special Term granted the defendants' motions to dismiss the ninth, twelfth and fifteenth causes of action, which are the causes brought on behalf of the minor children. Since we agree with Special Term's decision in Amodeo v. Precious, we affirm the order in that case. However, the contrary order in DeAngelis v. Lutheran Medical Center must be reversed, and the fifth, sixth, seventh and eighth causes of action must be dismissed as to the appellants.

At common law, all of the rights of the family group were vested in the father, and any injuries inflicted on the members of the family were actionable only by the father. The earliest cases which recognized the husband's claim for consortium, analogized the husband's loss of his wife's "company" to the master's loss of the services of a servant (see, e.g., Guy v. Livesey, 2 Cro.Jac. 501, 79 Eng.Rep. 428 Hyde v. Scyssor, 2 Cro.Jac. 538, 79 Eng.Rep. 462 Yet, at common law, neither a wife nor child could recover if deprived of a husband's or parent's society or services (see Prosser, Torts §§ 124, 125, pp. 886, 894; 2 Cooley, Torts § 174, p. 41). Although initially based on the lost services of his injured spouse, the husband's consortium claim eventually expanded to include recovery for the loss of the other aspects of their relationship, i.e., the deprivation of affection, aid, comfort, society, companionship and sexual relations (see Prosser, Torts § 125, p. 888; 1 Harper and James, Law of Torts, § 8.9, pp. 635-636; Judicial Treatment of Negligent Invasion of Consortium, 61 Columbia L.Rev. 1341, 1343; Dwork, The Child's Right to Sue for Loss of a Parent's Love, Care and Companionship Caused by Tortious Injury to the Parent, 56 Boston Univ.L.Rev. 722).

Recently, however, the vast majority of jurisdictions have allowed the wife to recover damages for the lost consortium of her husband who had been negligently injured (see American Export Lines, Inc. v. Alvez, 446 U.S. 274, 284-285, 100 S.Ct. 1673, 1679-1680, 64 L.Ed.2d 284). In New York, the recognition of the wife's claim came as recently as 1968, in the case of Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 293 N.Y.S.2d 305, 239 N.E.2d 897. The Court of Appeals, relying, in part, on the passage of the Married Women's Emancipation Acts, stated (p. 509, 293 N.Y.S.2d 305, 239 N.E.2d 897) that it was correcting "an unjust discrimination under New York law". The concept of spousal consortium was held to include (p. 502, 293 N.Y.S.2d 305, 239 N.E.2d 897) "not only loss of support or services * * * also embraces such elements as love, companionship, affection, society, sexual relations, solace and more".

In the instant cases, plaintiffs seek to extend the law of consortium to recognize a child's claim for the loss of the companionship, love, emotional support and services, etc., of a parent arising out of the physical injuries negligently inflicted on the parent. We decline to do so based on countervailing policy considerations. "Decisions delineating the extent of tort liability are * * * pronouncements of social policy which should reflect the often subtle balance of the interests involved" (see Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424, 430, dissenting opn. by LEVIN, J.). While the real and significant harm suffered by children of parents who are physically injured cannot be denied (see Hoffman v. Dautel, 189 Kan. 165, 368 P.2d 57; Ferriter v. Daniel O'Connell's Sons, 413 N.E.2d 690 Cooney and Conway, The Child's Right to Parental Consortium, 14 John Marshall L.Rev. 341), not every loss can be made compensable, and the courts must draw the line where liability terminates (see Koskela v. Martin, 91 Ill.App.3d 568, 570, 47 Ill.Dec. 32, 414 N.E.2d 1148).

"While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree." (See Tobin v. Grossman, 24 N.Y.2d 609, 619, 301 N.Y.S.2d 554, 249 N.E.2d 419.)

As an exercise in delineating liability, the instant cases are somewhat analogous to the Court of Appeal's rejection of a right to recover for the mental and emotional injuries experienced by a "bystander" as a consequence of direct injuries to another (see Tobin v. Grossman, supra; Howard v. Lecher, 42 N.Y.2d 109, 397 N.Y.S.2d 363, 366 N.E.2d 64; Vaccaro v. Squibb Corp., 52 N.Y.2d 809, 436 N.Y.S.2d 871, 418 N.E.2d 386; Lafferty v. Manhasset Med. Center Hosp., 79 A.D.2d 996, 435 N.Y.S.2d 307, affd. 54 N.Y.2d 277, 445 N.Y.S.2d 111, 429 N.E.2d 789 As stated by Judge WACHTLER in Howard v. Lecher, supra, 42 N.Y.2d p. 113, 397 N.Y.S.2d 363, 366 N.E.2d 64, "can be no doubt that the plaintiffs have suffered and the temptation is great to offer them some form of relief. Ideally, there should be a remedy for every wrong. This is not the function of the law, however." In that case the Court of Appeals denied recovery in a malpractice action for mental and emotional injuries suffered by the parents of a child who was born with, and eventually succumbed to, Tay-Sachs disease.

Of the courts that have decided the question presented in the instant appeals, the vast majority have declined to authorize an action for loss of parental consortium. ² At the extreme, the right to damages for loss of consortium could conceivably be extended to brothers, sisters, cousins, inlaws, friends and others who would be deprived of a person's companionship (see Borer v. American Airlines, 19 Cal.3d 441, 446, 138 Cal.Rptr. 302, 563 P.2d 858). Although it is clear that there must be limits to a defendant's liability, it is not as easy to define precisely where the limits should be placed. "Requiring a defendant who has tortiously injured one person to pay for resulting losses experienced by every other person would place an entirely unreasonable burden on all human activity" (see Koskela v. Martin, 91 Ill.App.3d 568, 572, 47 Ill.Dec. 32, 414 N.E.2d 1148, supra; Prosser, Torts § 54). We believe that claims for loss of consortium, itself an historical curiosity, should be limited to the spousal relationship. "In defining the common law, it is this court's duty to consider the consequences of...