Friedman v. Meyer

• Decision Date: 18 October 1982
• Citation: 90 A.D.2d 511,59 N.Y.2d 763,454 N.Y.S.2d 909
• Parties: Ann FRIEDMAN et al., Respondents, v. Albert MEYER, M.D. et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 909

454 N.Y.S.2d 909

90 A.D.2d 511

Ann FRIEDMAN et al., Respondents, v.Albert MEYER, M.D. et al., Appellants.

Supreme Court, Appellate Division Second Department.

Oct. 18, 1982.

Furey, Furey, Gerver & McHenry, P. C., Hempstead (Robert K. Lapping, Hempstead, of counsel), for appellant Franklin General Hosp.

Kelly, Rode, Kelly & Burke, Mineola (Stephen P. Burke, Mineola, of counsel), for appellantAlbert Meyer(relying upon the brief submitted on behalf of the appellant hospital).

Gerald J. Mondora, New York City, for respondents.

Before THOMPSON, J. P., and BRACKEN, RUBIN and BOYERS, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action, defendants appeal from an order of the Supreme Court, Nassau County, dated June 2, 1981, denying their respective motions for summary judgment.

Order reversed, on the law, with $50 costs and disbursements payable to the appellant hospital, and defendants' motions for summary judgment are granted.

Plaintiffs allege that due to the negligence of defendants, or because of actions taken by them without the plaintiff wife's informed consent, the plaintiff wife was caused to deliver a stillborn infant.No physical injuries are claimed.Rather, the plaintiff wife seeks to recover solely for mental or emotional injuries and her husband seeks to recover for the loss of his wife's services.Special Term denied defendants' motions for summary judgment.We reverse.

It is by now well established that even assuming the death of the fetus in utero was caused by defendants' wrongful acts, absent independent physical injuries, the plaintiff wife may not recover for emotional and psychic harm as a result of the stillborn birth (seeVaccaro v. Squibb Corp., 52 N.Y.2d 809, 436 N.Y.S.2d 871, 418 N.E.2d 386;Becker v. Schwartz, 46 N.Y.2d 401, 386 N.Y.S.2d 807, 386 N.E.2d 807;Howard v. Lecher, 42 N.Y.2d 109, 397 N.Y.S.2d 363, 366 N.E.2d 64;see, also, Lafferty v. Manhasset Med. Center Hosp., 54 N.Y.2d 277, 445 N.Y.S.2d 111, 429 N.E.2d 789;Aquilio v. Nelson, 78 A.D.2d 195, 434 N.Y.S.2d 520).Endresz v. Friedberg, 24 N.Y.2d 478, 301 N.Y.S.2d 65, 248 N.E.2d 901, does not command otherwise.That case held that no action for wrongful death could be maintained by the personal representative of a stillborn fetus, although the plaintiff wife was held entitled to recover for the mental injuries she sustained, including "the emotional upset attending the stillbirths", as a concomitant to the actual physical injuries she had...