Hughson v. St. Francis Hosp. of Port Jervis

• Decision Date: 07 March 1983
• Citation: 459 N.Y.S.2d 814,92 A.D.2d 131
• Parties: Durinda HUGHSON, an infant, etc., Respondent, v. ST. FRANCIS HOSPITAL OF PORT JERVIS, New York, Defendant, Stanley Brunn, M.D. et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 814

459 N.Y.S.2d 814

92 A.D.2d 131

Durinda HUGHSON, an infant, etc., Respondent, v. ST. FRANCIS HOSPITAL OF PORT JERVIS, New York, Defendant Stanley Brunn, M.D. et al., Appellants.

Supreme Court, Appellate Division Second Department.

March 7, 1983.

Meiselman, Farber, Stella & Moran, P.C., Poughkeepsie (Myra I. Packman, Poughkeepsie, of counsel), for appellants.

Pegalis & Wachsman, P.C., Great Neck (Roger K. Solymosy, Great Neck, of counsel), for respondent.

Before GIBBONS, J.P., and THOMPSON, WEINSTEIN and RUBIN, JJ.

WEINSTEIN, Justice.

The issue before us is one of first impression in the appellate courts: whether there exists a cognizable independent cause of action on behalf of an infant, born alive, against a physician, for prenatal injuries arising out of the failure to obtain the informed consent of the mother. The question arises in the posture of a cross motion by the defendant physicians (hereinafter appellants) to dismiss the infant plaintiff's second cause of action. (The first cause of action on behalf of the infant is for medical malpractice.) The pleadings and papers submitted at Special Term are devoid of any information as to the nature of the injury sustained by the infant or the specific advice which the physicians failed to impart before rendering treatment. We must, therefore, decide the issue on that basis, as did Special Term. We must also, of course, assume the infant plaintiff's allegations to be true (see Howard v. Lecher, 42 N.Y.2d 109, 112, 397 N.Y.S.2d 363, 366 N.E.2d 64).

We note at the outset that we are not here dealing with a claim for a preconception tort or "wrongful life", claims which do not state legally cognizable causes of action (Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807; Albala v. City of New York, 54 N.Y.2d 269, 445 N.Y.S.2d 108, 429 N.E.2d 786). Unlike the infants in Becker and its companion case of Park v. Chessin, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807, who would assertedly have chosen never to have been born at all rather than to have been born with Down's Syndrome or polycystic kidney disease, the infant at bar would presumably have been born normal and healthy but for the appellants' wrongful act. Unlike the infant in Albala, who had not been conceived at the time his mother's uterus was negligently perforated during a prior abortion (allegedly resulting in brain damage to the later conceived infant), the infant at bar was an identifiable being within the zone of danger at the time of the wrongful act. Thus, this case would appear to fall squarely within the general rule that a surviving child has a right to recover for tortiously inflicted prenatal injuries (Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691; Kelly v. Gregory, 282 App.Div. 542, 125 N.Y.S.2d 696).

There being no problem as to the ascertainment of damages, and causation being assumed, the only issue is as to the appellants' duty. While foreseeability of future injury alone does not establish the existence of a duty owing to an unborn infant by its mother's physicians, it is now beyond dispute that in the case of negligence resulting in prenatal injuries, both the mother and the child in utero may each be directly injured and are each owed a duty, independent of the other (Albala v. City of New York, supra, 54 N.Y. at p. 272, 445 N.Y.S.2d 108, 429 N.E.2d 786).

We hold that the nature of the tort, predicated on a failure to obtain informed consent, is insufficiently distinguishable from other tortious acts which may result in recovery by the child, and that therefore, encompassed within the independent duty flowing between doctor and infant in utero is the obligation of the physician to obtain informed consent from the parent.

Appellants do not claim that they can never be liable for the injuries sustained by the infant in utero. Rather, they argue that their obligation to disclose the risks and alternatives of obstetric care runs to the mother, who must necessarily consent for both herself and the infant in utero; that the infant's cause of action must therefore be held to be derivative to the mother's cause of action; and that, since the mother asserts no cause of action for lack of informed consent and, indeed is time-barred from doing so, the infant's claim must fail. More particularly, appellants rely upon Shack v. Holland, 89 Misc.2d 78, 389 N.Y.S.2d 988, which upheld an infant plaintiff's cause of action against a doctor for lack of informed consent of the mother. Insofar as pertinent, Special Term (MONTELEONE, J.) there reasoned as follows (p. 85, 389 N.Y.S.2d 988):

"Having concluded that the unborn plaintiff has a cause of action and that the duty to disclose the reasonable foreseeable risks involved is grounded in negligence, the immediate question is whether this plaintiff has a cause of action against this defendant for lack of informed consent to the mother of the child here involved.

"The court is convinced that the second cause of action on behalf of plaintiff, Neil Shack, states a good cause of action. The court finds that although the obligation to disclose runs to the mother, plaintiff, Neil Shack, then unborn but within his mother's womb, comes within the area of persons to be protected. The lack of informed consent of the mother would have its effect upon the fetus to be born for good or ill. A child in its mother's womb is a foreseeable circumstance. Conduct, which creates a risk of harm to a woman, includes also a risk of harm to her unborn child. The standard of care imposed upon the doctor by the statute inures to the benefit of her unborn child. This is a classic example of derivative liability whereby a plaintiff may institute an action to redress a wrong done to himself which is proximately caused by a wrong done to another."

Although upholding the second cause of action on behalf of the infant, Special Term in Shack dismissed the third cause of action on behalf of the mother for damages for loss of services and medical expenses. The mother's claim, being derivative, could not be tolled along with the infant's main claim and, hence, was barred by the Statute of Limitations.

Defendants misread Shack. While Special Term did therein speak of "derivative liability" and redressing "a wrong done to [a plaintiff] which is proximately caused by a wrong done to another", it clearly did not use that term in the strict legal sense. Had that been the case, the infant's cause of action for lack of informed consent would have been dismissed as well, since any claim by the mother for lack of informed consent was also time-barred and the derivative cause could not then stand by itself.

Appellants also argue that section 2805-d of the Public Health Law, which governs the cause of action for lack of informed consent, must be strictly construed. Since the statute does not specifically authorize a fetus to maintain a claim for lack of informed consent for obstetrical care rendered to the mother, appellants urge that no such right of recovery may be implied by the courts.

Section 2805-d of the Public Health Law reads as follows "Limitation of medical malpractice action based on lack of informed consent

"1. Lack of informed consent means the failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation.

"2. The right of action to recover for medical malpractice based on a lack of informed consent is limited to those cases involving either (a) non-emergency treatment, procedure or surgery, or (b) a diagnostic procedure which...