Favier by Favier v. Winick

• Decision Date: 27 April 1992
• Court: New York Supreme Court
• Parties: Matthew O'Neill FAVIER, an infant under the age of 14 years, by his father and natural guardian, Brian O. FAVIER and Brian O. Favier, individually, Plaintiff, v. Martin WINICK, M.D., Defendant.

Page 907

583 N.Y.S.2d 907

151 Misc.2d 910

Matthew O'Neill FAVIER, an infant under the age of 14 years,

by his father and natural guardian, Brian O.

FAVIER and Brian O. Favier, individually, Plaintiff, v. Martin WINICK, M.D., Defendant.

Supreme Court, Suffolk County,

Trial Term Part 28.

April 27, 1992.

Peter D. Baron, Baron & Vesel, P.C., Kew Gardens, for plaintiff.

Furey, Furey, Lapping, Demaria & Schwarz, P.C., Hempstead, for defendant.

ALAN D. OSHRIN, Justice.

Plaintiff, Brian O. Favier, commenced a medical malpractice action on behalf of his son Matthew O'Neil Favier, an infant under the age of fourteen. Plaintiff moves in limine for an Order prohibiting defendant from commenting either in his opening statement or in summation regarding the parent's alleged failure to consent to or have the infant undergo a second remedial surgical procedure. Plaintiff also asks that the defendant be precluded from calling any witnesses or offering any testimony as to whether a second operative procedure would alleviate the problem which he claims was caused by the alleged malpractice.

The issue of whether the decision of the parents of the infant plaintiff to forego remedial medical treatment or surgery in mitigation of damages can be attributed to the infant and presented to the jury, appears to be one of first impression in the State of New York.

Generally, a party who claims to have suffered personal injuries by reason of the defendant's negligence or other tortious conduct is required to use reasonable and proper effort to make the damage as small as practicable, and is not entitled to recover for any damage which by the use of such effort might have been avoided (Lyons v. Erie Railway Co., 57 N.Y. 489 [1874]; Blate v. Third Ave. Railroad Co., 44 App.Div. 163, 60 N.Y.S. 732 [1899]. With respect to remedial surgery, the law does not require a plaintiff who sustained a personal injury by reason of the tortious act of the defendant to submit to a surgical operation which may be dangerous to life, even though it may possibly result in a cure of his physical condition, in order to reduce the defendant's damages (Williams v. City of Brooklyn, 33 App.Div. 539, 53 N.Y.S. 1007 [1898]. The injured person is bound to submit to a surgical operation only when a reasonably prudent person under the circumstances would do so (Wolf v. Third Ave. Railway Co., 67 App.Div. 605, 74 N.Y.S. 336 [1902]; Williams v. City of Brooklyn, 33 App.Div. 539, 53 N.Y.S. 1007, supra).

With respect to infants, General Obligations Law sec. 3-111 provides "[i]n an action brought by an infant to recover damages for personal injury the contributory negligence of the infant's parent or other custodian shall not be imputed to the infant" (McKinneys Con.Laws of N.Y., Book 23A, G.O.L. sec. 3-111). This statute recognizes the strong public policy in New York against imputing a parent's negligence to an infant plaintiff (Searles v. Dardani, 75 Misc.2d 279, 347 N.Y.S.2d 662 [1973]. Inasmuch as the effect of contributory or comparative negligence is to reduce the amount of damages ultimately awarded by a jury a policy of not imputing the negligence of the parent serves to accomplish the same goal as not allowing a claim of mitigation of damages, namely: preserving the infant's claim undiminished by parental activity. This is readily seen by an examination of the two concepts. In the first, the entitlement of the infant is reduced by the act of the parent which may be said to be partly responsible for causing the injury. In the second, defendant alleges the failure to mitigate damages has, in effect, caused a continuation or prohibited the elimination or reduction of the injury. Both are paths to the same result.

Although the General Obligations Law speaks only of contributory negligence, by analogy, and for the reasons discussed below, the Court finds that a parent's decision not to submit an infant to remedial medical treatment or surgery and concomitant failure to mitigate damages cannot be attributed to an infant plaintiff and, therefore, cannot be presented to the jury.

Pattern Jury Instruction (PJI) 2:325 provides an illustration of the Court's instruction to a jury when a plaintiff fails to mitigate damages by not having an operation. The editors observe at page 694 of the Comment that although no New York case dealing with an infant plaintiff could be found, the failure of an infant's parent to provide or consent to an operation is not imputable to the infant. The editors cite G.O.L. sec. 3-111 and a number of sister state decisions in support of their conclusion. The Court finds the reasoning of these cases to be sound and concludes that a child of the age of eleven is necessarily dependent upon his parents as regards the steps to be taken to bring about a recovery from an injury, that a neglect of proper surgical treatment by the parent cannot be imputed to the child and that no part of the infant plaintiff's damages may be reduced upon the conduct of the parents (see generally Lange v. Hoyt, 114 Conn. 590, 159 A. 575 [1932]; Wheatley v....