Kalina v. General Hospital of the City of Syracuse

• Decision Date: 06 December 1962
• Citation: 235 N.Y.S.2d 808,18 A.D.2d 757
• Parties: Joseph KALINA, Appellant, v. GENERAL HOSPITAL OF the CITY OF SYRACUSE, Dr. Haluk Akyuz, Jane Doe and John Doe, the said names being fictitious, the parties intended being the persons who prepared the plaintiff's infant son for surgery and assaulted said infant, Respondents. Lee KALINA, Appellant, v. GENERAL HOSPITAL OF the CITY OF SYRACUSE et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 808

235 N.Y.S.2d 808

18 A.D.2d 757

Joseph KALINA, Appellant, v. GENERAL HOSPITAL OF the CITY OF SYRACUSE, Dr. Haluk Akyuz,

Jane Doe and John Doe, the said names being fictitious, the

parties intended being the persons who prepared the

plaintiff's infant son for surgery and assaulted said

infant, Respondents.

Lee KALINA, Appellant, v. GENERAL HOSPITAL OF the CITY OF SYRACUSE et al., Respondents.

Supreme Court, Appellate Division, Fourth Department.

Argued Sept. 13, 1962.

Decided Dec. 6, 1962.

deSilva & Fitzer, Syracuse, Donald Fitzer, Syracuse, of counsel, for appellants.

Hancock, Dorr, Ryan & Shove, Syracuse, Robert B. Simonton, Syracuse, of counsel, for respondents.

Before WILLIAMS, P. J., and BASTOW, GOLDMAN, HALPERN, and McCLUSKY, JJ.

MEMORANDUM.

Order insofar as appealed from affirmed without costs of this appeal to either party.

All concur, except HALPERN, J., who dissents and votes to reverse and to deny the motion in an Opinion.

HALPERN, Justice (dissenting).

I believe that the second cause of action alleged in the complaint states a good and sufficient cause of action and that the motion to dismiss the complaint should have been denied. (There are two actions, one brought by the father and the other by the mother; they will be referred to herein as if the father and mother were co-plaintiffs in a single action.)

So far as the defendant General Hospital is concerned, the complaint, in my opinion, is sufficient to charge the hospital with intentional wrongdoing. The complaint alleges that after the birth of the plaintiffs' son on September 20, 1958, the plaintiffs informed the Hospital that he 'was to be circumcized by a Rabbi ¹ in a ritualistic ceremony in accordance with the Jewish religion and Jewish custom and practice' and that, notwithstanding this affirmative notice, the Hospital participated, aided and assisted in an operation upon the plaintiffs' son by the defendant doctor, resulting in his circumcision, on September 24, 1958. The operation was performed by a person not qualified to perform it under Jewish religious law; the prescribed religious ritual was not observed; and the operation was performed prematurely on the 4th day, whereas the religious law requires it to be performed on the 8th day. All this, it is charged, 'violated the plaintiff[s'] religious rights, beliefs and customs.' It is further alleged that as a result 'the plaintiff[s] sustained severe and intense mental pain and anguish'. Giving the plaintiffs the benefit of all reasonable intendments of the pleading, the complaint may properly be construed as charging that the hospital intentionally inflicted 'mental pain and anguish' upon the plaintiffs. The right to recover for the intentional infliction of memtal anguish has long been recognized in New York State. (For the recent cases, see Halio v. Lurie, 15 A.D.2d 62, 222 N.Y.S.2d 759; Scheman v. Schlein, 35 Misc.2d 581, 231 N.Y.S.2d 548; Bergman v. Rubenfeld, City Ct., 66 N.Y.S.2d 895; Mitran v. Williamson, 21 Misc.2d 106, 197 N.Y.S.2d 689; Note, 12 Syracuse Law Rev. 131; for the older cases see Preiser v. Wielandt, 48 App.Div. 569, 62 N.Y.S. 890; Williams v. Underhill, 63 App.Div. 223, 71 N.Y.S. 291; Beck v. Libraro, 220 App.Div. 547, 221 N.Y.S. 737; see also American Law Institute, Restatement of Torts, 1948 Supplement, § 46; cf. Garrison v. Sun Printing & Publishing Ass'n, 207 N.Y. 1, 100 N.E. 430, 45 L.R.A.,N.S., 766).

Malice in the sense of ill will or a desire to cause injury is not essential to sustain a recovery for intentional wrongdoing. It is enough for the plaintiff to show that the defendant knowingly and intentionally did the act which caused the damage and that the damage was substantially certain to follow (Restatement of Torts, § 13, Comment d; Restatement of Torts Second, Tentative Draft No. 1, § 8 A; see Mitran v. Williamson, supra, 21 Misc.2d 106, 109, 197 N.Y.S.2d 689. 691, 692.) In this case, it sufficiently appears from the complaint that the hospital intentionally violated the plaintiffs' instructions and that the mental and emotional distress of the plaintiffs was substantially certain to follow from the violation.

Even if the complaint is construed as not charging an intentional violation by the hospital, the allegations of the complaint are sufficient to charge that the hospital acted recklessly in disregarding the plaintiffs' express directions and proceeding with the operation in violation of the plaintiffs' religious belief. Recklessness, under these circumstances, is the equivalent of intention (Beck v. Libraro, supra, 220 App.Div. 547, 548, 221 N.Y.S. 737, 738; Annotation 64 A.L.R.2d 100, at pp. 119-120; Prosser, 'Intentional Infliction of Mental Suffering', 37 Mich.L.Rev. 874, 878-879).

The liability of the hospital may also be predicated upon its contractual relationship with the plaintiffs. It is reasonably inferable from the complaint that the hospital promised the plaintiffs that it would obey their instructions and would respect their religious beliefs. It wilfully breached this promise. 'The defendant had reason to know when the contract was made that the breach would cause mental suffering' (Restatement of Contracts, § 341). The hospital is therefore liable for the mental suffering caused by the breach. The liability may be enforced by an action either in contract or in tort. (Gillespie v. Brooklyn Heights R. R. Co., 178 N.Y. 347, 70 N.E. 857, 66 L.R.A. 618; DeWolf v. Ford, 193 N.Y. 397, 86 N.E. 527, 21 L.R.A., N.S., 860; Aaron v. Ward, 203 N.Y. 351, 96 N.E. 736, 38 L.R.A.,N.S., 204; Boyce v. Greeley Square Hotel Co., 228 N.Y. 106, 126 N.E. 647; Smith v. Leo, 92 Hun 242). Furthermore, the hospital owed a special duty to protect the emotional tranquillity of the plaintiff Lee Kalina, who was a patient in the hospital and who had just undergone the strain of childbirth. One who bears a special contractual relationship to another giving rise to a duty to protect the other's emotional tranquillity is liable for any conduct causing emotional distress. (See cases supra and see generally McNiece, 'Psychic Injury and Tort Liability in New York', 24 St. John's Law Rev. 1, 37-44; Prosser, op. cit. supra, at pp. 881-883.)

As to the cause of action against the defendant doctor, it may well be that the allegations of the complaint are not sufficient to charge him with intentional wrongdoing or recklessness or breach of contractual relationship. But they are plainly sufficient to charge negligence on his part. According to the allegations of the complaint, the hospital made a notation upon the son's hospital record 'that the plaintiff's said son was to be ritualistically circumcized.' It was certainly negligent on the part of the defendant doctor to proceed with the operation without reading the hospital record and without consulting the plaintiffs. The complaint therefore states a cause of action against the doctor for the negligently causing of emotional distress and mental suffering.

That such a cause of action is cognizable in New York State was established by two recent decisions of the Court of Appeals. In Ferrara v. Galluchio, 5 N.Y.2d 16, at page 21, 176 N.Y.S.2d 996, at page 999, 152 N.E.2d 249, at page 252, 71 A.L.R.2d 331, the court held that 'Freedom from mental disturbance is now a protected interest in this State' and that recovery may be had for a violation of this freedom when a 'guarantee of genuineness' can be found 'in the circumstances of the case.' In the later case of Battalla v. State, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729, the court held that a recovery could be had for metal or emotional distress, without any contemporaneous physical contact or direct physical injury, overruling Mitchell v. Rochester Railway Co., 151 N.Y. 107, 45 N.E. 354, 34 L.R.A. 781.

It is true that in the complaint in the Battalla case there was a reference to 'residual physical manifestations' resulting from the mental or emotional disturbance, but there is nothing in the opinion of the court to indicate that the court meant to limit the right of recovery for mental or emotional disturbance to cases in which physical illness had resulted. (See note on the Battalla case, 37 N.Y.U.Law, Rev. 331, 334-337.) In modern times, it is recognized that there is no real distinction between emotional distress and physical illness. 'The point has been long ago made that, as a scientific matter, all severe emotional disturbances create bodily changes which are measurable. See Goodrich, Emotional Disturbance as Legal Damage, 20 Michigan L.Rev. 497 (1922)' (1 Harper and James Law on Torts, 666, note 5; see also Annotation 64 A.L.R.2d 100 at p. 104.) Physical illness resulting from mental or emotional disturbance may of itself be a guarantee of the genuineness of the alleged disturbance, but recovery may be had without a showing of physical illness, if it is otherwise established that the mental or emotional disturbance was genuine. 'Where such a guarantee can be found, and the mental distress is undoubtedly real and serious, there is no essential reason to deny recovery' (Prosser on Torts, (2nd ed.), p. 180). The genuineness of the mental distress is, of course, to be decided after a trial and not upon a motion addressed to the pleadings. (Battalla v. State, supra, 10 N.Y.2d 237, 242, 219 N.Y.S.2d 34, 38, 176 N.E.2d 729, 731).

Shortly after the decision of the Battalla case, the right to recover damages for emotional distress and mental suffering was upheld, where the body of a close relative had been improperly prepared for burial in a manner which violated the religious beliefs of the plaintiff (Lott v. State, 32 Misc.2d 296, 225 N.Y.S.2d 434). The Lott case was followed in Torres v. State, 34 Misc.2d 488, 228 N.Y.S.2d 1005. See also Nieman v. Upper Queens Medical Group, City Ct., 220 N.Y.S.2d 129.

Even before the Ferrara and Battalla cases, the courts of this state, in a variety of situations, had recognized the right to...