Foote v. Albany Med. Ctr. Hosp.

• Decision Date: 15 February 2011
• Citation: 944 N.E.2d 1111,16 N.Y.3d 211,2011 N.Y. Slip Op. 01049,919 N.Y.S.2d 472
• Parties: Kristi FOOTE et al., Respondents,v.ALBANY MEDICAL CENTER HOSPITAL et al., Appellants, et al., Defendant.
• Court: New York Court of Appeals Court of Appeals

16 N.Y.3d 211

944 N.E.2d 1111

919 N.Y.S.2d 472

2011 N.Y. Slip Op. 01049

Kristi FOOTE et al., Respondents,

v.ALBANY MEDICAL CENTER HOSPITAL et al., Appellants, et al., Defendant.

Court of Appeals of New York.

Feb. 15, 2011.

Heidell, Pittoni, Murphy & Bach, LLP, New York City (Daniel S. Ratner and Daryl Paxson of counsel), Petrone & Petrone, P.C., Buffalo, for Birth & Beyond Midwifery Practice of Oneonta, PLLC and another, Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Robert A. Raush of counsel), for Albany Medical Center Hospital and others and Brown & Tarantino, LLC, White Plains (Katherine W. Dandy of counsel), for Brian S. Evanczyk and another, appellants.Powers & Santola, LLP, Albany (Michael J. Hutter of counsel), for respondents.

OPINION OF THE COURT

CIPARICK, J.

Plaintiffs Kristi Foote and Tim Sheridan are the parents of a child born in August 2003 with Joubert Syndrome, a neurological disorder causing abnormalities in brain development and function and resulting in developmental and behavioral deficits. After the child's birth, plaintiffs commenced this medical malpractice “wrongful birth” action ( see Becker v. Schwartz, 46 N.Y.2d 401, 409, 413 N.Y.S.2d 895, 386 N.E.2d 807 [1978] ) against numerous medical providers who allegedly failed to detect and/or failed to inform them of the abnormal cerebellar development of the fetus. Plaintiffs allege that steps would have been taken to terminate the pregnancy had they been properly informed. They seek damages for the extraordinary expenses involved in caring for their severely disabled child, including medical treatment and supplies, surgical treatment, physical therapy, vision therapy, occupational therapy, a home health aide, and special educational services.

Defendants moved for summary judgment dismissing the complaint, submitting expert affidavits stating that the extraordinary expenses necessary for the child's care have been and will continue to be completely covered by certain enumerated governmental programs. In opposition to defendants' motion, plaintiffs submitted the affirmation of Dr. Joseph Carfi, M.D., who prepared a “life care plan” and report detailing the care required for the child. According to Dr. Carfi, the government programs referenced by defendants' experts provided only a “minimum level of services” so as to create a “basic floor of opportunity.” Dr. Carfi also took the position that “optimal care” for the child required more services than those provided by government programs and, as a result, plaintiffs had or would be forced to bear out-of-pocket expenses related to the child's special medical and educational needs. Supreme Court granted defendants' motion for summary judgment, concluding that plaintiffs had failed to raise a triable issue of fact as to whether they had or would incur extraordinary expenses in providing for the medical and educational care of their son (19 Misc.3d 1142[A], 2008 N.Y. Slip Op. 51138 [U], 2008 WL 2310948 ).

On plaintiffs' appeal, the Appellate Division unanimously reversed ( see Foote v. Albany Med. Ctr. Hosp., 71 A.D.3d 25, 892 N.Y.S.2d 203 [3d Dept.2009]). Although it agreed that most of plaintiffs' expenses in caring for the child had been and would continue to be covered under government programs, the Appellate Division concluded that the aid received by plaintiffs for such programs would, under the statutory collateral source rule, merely serve to offset any award of damages made after trial ( see id. at 28, 892 N.Y.S.2d 203). The Appellate Division also concluded that Dr. Carfi's “affirmation, report and life-care plan, which distinguish between the ‘basic floor’ of services provided by public education

[944 N.E.2d 1113 , 919 N.Y.S.2d 474]

and the level necessary to meet all of the son's needs, [were] sufficient to raise a question of fact” for trial ( id.). Because Supreme Court had not considered defendants' alternative basis for summary judgment—that plaintiffs could not establish a deviation from the applicable standard of medical care—the Appellate Division remitted for consideration of that issue.

The Appellate Division granted defendants leave to appeal and certified a question inquiring whether it erred, “as a matter of law, in reversing ... the order of the Supreme Court ... and...