Karlsons v. Guerinot

• Decision Date: 15 April 1977
• Citation: 394 N.Y.S.2d 933,57 A.D.2d 73
• Parties: Arvids KARLSONS, Individually, et al., v. Gerard T. GUERINOT, M.D. and Harold F. Grunert, Jr., M.D., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 933

394 N.Y.S.2d 933

57 A.D.2d 73

Arvids KARLSONS, Individually, et al., v. Gerard T. GUERINOT, M.D. and Harold F. Grunert, Jr., M.D. Respondents.

Supreme Court, Appellate Division, Fourth Department.

April 15, 1977.

Robert F. Wood, P. C., Rochester (Michael Calvette, Rochester, of counsel), for appellants.

Martin, Ganotis, Amsler & Brown, Syracuse (George Mould, Fayetteville, of counsel), for respondents.

Before MOULE, J. P., and CARDAMONE, SIMONS, DILLON and WITMER, JJ.

MOULE, Justice Presiding.

Plaintiffs parents and child appeal from a judgment dismissing certain of their causes of action against defendants, duly licensed physicians, for damages sustained as a result of the birth of the child.

According to the complaint on June 26, 1973 plaintiff, Irene Karlsons, retained the services of defendants as obstetrician and gynecologist to counsel and assist her by providing pre- and postnatal care. Although defendants were informed of her medical history, including the fact that she was 37 years old, had a thyroid condition and had previously given birth to a deformed child, they failed to inform and advise her and her husband of the risks involved in the pregnancy, particularly with regard to the likelihood of giving birth to another deformed child. Defendants also failed to inform her of the existence of an amniocentesis test which, when administered, could detect whether the fetus was in fact deformed. Plaintiffs further alleged that, had she been informed either of the risks of her pregnancy or of the fact that the fetus was deformed, she would not have consented to continuation of the pregnancy. Subsequently, on January 9, 1974 plaintiff gave birth to a mongoloid child.

In their complaint plaintiffs set forth eleven causes of action seeking damages based upon theories of negligence, malpractice, lack of informed consent, breach of contract and what has now come to be termed as "wrongful life". Plaintiff wife sought damages for pain, suffering and mental anguish incident to the delivery of the child and also that caused by the birth of their child in an impaired condition, for care and support of the child, for loss of potential income as a result of such care, for loss of consortium and for the development of cancer of the breast allegedly related to and caused by her emotional and physical stress. Plaintiff husband sought to recover medical expenses for services rendered to his wife and their child as well as damages for loss of the child's services, for expenses of care and support, for loss of consortium and for his pain and suffering and mental anguish as a result of the birth of their child in an impaired condition. Plaintiffs husband and wife also asserted a separate cause of action on behalf of their child seeking damages for pain and suffering, for the burden of living an impaired life and for the loss of ability to earn a living. Based upon these causes of action plaintiffs sought $25,000,000 in compensatory damages and $2,000,000 in punitive damages.

After service of their answer, defendants jointly moved for summary judgment pursuant to CPLR 3212 upon the grounds that there was no triable issue of fact and no merit to the complaint. Special Term partially granted the motion, and judgment was entered dismissing the following causes of action: the claims of plaintiffs husband and wife for pain, suffering and mental anguish as a result of the birth of their child in an impaired condition; the claim for damages on behalf of the child as well as the husband's derivative claim for loss of his child's services; the claims based upon theories of lack of informed consent and breach of contract; the wife's claim for damages due to her development of cancer ¹; and the claim for punitive damages.

As their first contention plaintiffs urge that Special Term erred in dismissing their cause of action for pain, suffering and mental anguish as a result of the birth of their deformed child.

We held in Ziemba v. Sternberg, 45 A.D.2d 230, 231, 357 N.Y.S.2d 265, 267, that an action is maintainable by a parent against a physician for the negligent failure to diagnose a pregnancy such that the mother was prevented from aborting the child within a reasonable time (see also, Chapman v. Schultz, 47 A.D.2d 806, 367 N.Y.S.2d 1018). The question here, however, is not whether plaintiffs have properly alleged the necessary elements of a cause of action for negligence based upon medical malpractice, but whether, assuming they have alleged such cause of action, they can recover for pain, suffering and mental anguish as a result of the birth of their deformed child (see Howard v. Lecher, 53 A.D.2d 420, 386 N.Y.S.2d 460).

The Court of Appeals has addressed the question of under what circumstances recovery may be had for the negligent infliction of emotional harm. In Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419 the Court examined the viability of a mother's cause of action against a negligent driver for psychological and physical injury caused by the trauma of observing her infant child seriously injured in an automobile accident. While holding that one may have a cause of action for injuries sustained by a negligently induced mental trauma without physical impact (24 N.Y.2d at 613, 301 N.Y.S.2d at 556, 249 N.E.2d at 420), the Court dismissed the mother's cause of action upon public policy grounds stating:

"The problem of unlimited liability is suggested by the unforeseeable consequence of extending recovery for harm to others than those directly involved in the accident. If foreseeability be the sole test, then once liability is extended the logic of the principle would not and could not remain confined. It would extend to older children, fathers, grandparents, relatives, or others in loco parentis, and even to sensitive caretakers, or even any other affected bystanders. Moreover, in any one accident, there might well be more than one person indirectly but seriously affected by the shock of injury or death to the child" (24 N.Y.2d at 616, 301 N.Y.S.2d at 559, 249 N.E.2d at 423).

Despite the barrier erected by the Tobin decision, the Court in Johnson v. State of New York, 37 N.Y.2d 378, 372 N.Y.S.2d 638, 334 N.E.2d 590 permitted a plaintiff to maintain an action against the State for emotional harm allegedly caused by a state hospital's negligent transmittal of a telegram falsely informing plaintiff of her mother's death. In distinguishing its earlier decision in Tobin, the Court reasoned that:

"Claimant was not indirectly harmed by injury caused to another; she was not a mere eyewitness of or bystander to injury caused to another. Instead, she was the one to whom a duty was directly owed by the hospital, and the one who was directly injured by the hospital's breach of that duty. Thus, the rationale underlying the Tobin case, namely, the real dangers of extending recovery for harm to others than those directly involved, is inapplicable to the instant case * * *

Moreover, not only justice but logic compels the further conclusion that if claimant was entitled to recover her pecuniary losses she was also entitled to recover for the emotional harm caused by the same tortious act" (37 N.Y.2d at 383, 372 N.Y.S.2d at 643, 334 N.E.2d at 593).

Here, Special Term's dismissal of plaintiff's cause of action was based solely upon the authority of the Second Department's recent decision in HOWARD V. LECHER, 53 A.D.2D 420, SUPRA, 386 N.Y.S.2D 460². In that case, which involves a factual situation similar to the one here, the parents of an infant born with Tay-Sachs disease sought damages for mental distress and emotional disturbances suffered by them. They alleged, inter alia, that defendant obstetrician knew or should have known that being of Eastern European background they were potential carriers of the disease; that he was negligent either in failing to take a proper history of them or in evaluating the history that he did take; and that he should have informed them of certain tests which could have been administered to detect whether the fetus carried the disease. The court dismissed the parents' cause of action based upon its interpretation of the Tobin and Johnson decisions stating that:

"(W)hile in this case the defendant may or may not have treated the plaintiff wife, or advised her and the plaintiff husband according to accepted medical standards of his profession, the fact is that the injury from which their alleged emotional harm stemmed was suffered by the child" (53 A.D.2d at 423, 386 N.Y.S.2d at 461).

Additionally, the court grounded its holding upon the conclusion that it is virtually impossible to evaluate as compensatory damages the anguish to the parents of rearing either a malformed child or a child born with a fatal disease, measured against the denial to them of the benefits of parenthood (53 A.D.2d at 424, 386 N.Y.S.2d at 462). We reject this approach however and find the cause of action here to be maintainable.

Defendants were under a duty to plaintiff wife to provide her with proper medical care during her pregnancy. They allegedly breached that duty by not properly diagnosing the condition of the child, thus precluding a decision to abort. As a result, the mongoloid child was born, creating the source of the parents' alleged emotional harm. We cannot agree with the conclusions of the Second Department in Howard that the injury from which the parents' alleged emotional harm stemmed was suffered solely by the child and, therefore, resulted in only indirect harm to the parents. Rather, the pain, suffering and mental anguish suffered by plaintiffs as a result of the birth of their mongoloid child is the type of direct injury flowing from defendants' alleged breach of duty to the parents that was contemplated by the Court of Appeals in Johnson. Additionally, the principal reason for denying recovery for emotional harm, viz., the possibility of numerous fictitious claims,...