Landon by Landon v. New York Hosp.

• Decision Date: 22 May 1984
• Citation: 101 A.D.2d 489,476 N.Y.S.2d 303
• Parties: Terri LANDON, an infant, by her father and natural guardian, Leonard LANDON, Leonard Landon and Marlene Landon, Plaintiffs-Respondents, v. The NEW YORK HOSPITAL and Neil Lieblich, Defendants, and Donald R. Skog and Virginia E. Pomeranz, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 303

476 N.Y.S.2d 303

101 A.D.2d 489

Terri LANDON, an infant, by her father and natural guardian Leonard LANDON, Leonard Landon and Marlene Landon Plaintiffs-Respondents, v. The NEW YORK HOSPITAL and Neil Lieblich, Defendants and Donald R. Skog and Virginia E. Pomeranz, Defendants-Appellants.

Supreme Court, Appellate Division,

First Department.

May 22, 1984.

Matthew J. McMahon, New York City, of counsel (Charles L. Bach, Jr., New York City, with him on the brief, Heidell, Pittoni & Moran, P.C., New York City, attorneys), for defendant-appellant Skog.

Seymour Armstrong, New York City, of counsel (Lawrence M. Rosenberg, Herbert M. Horowitz, P.C. and Morton Berger, New York City, attorneys) for plaintiffs-respondents.

Before MURPHY, P.J., and KUPFERMAN, CARRO, ASCH and FEIN, JJ.

FEIN, Justice.

Defendants are alleged to have failed to diagnose, in a timely fashion, bacterial meningitis, contracted by the infant-plaintiff. In the second and third causes of action plaintiff-parents individually allege causes of action for psychic trauma, pain and agony of mind and body and other emotional and physical injury from this experience. In the fifth and sixth causes of action each parent alleges loss of consortium as a result of the other's injuries as alleged in the second and third causes of action.

In essence the parents seek recovery for the emotional harm or distress sustained in witnessing their child's deterioration from meningitis, for the fear that they themselves might have contracted meningitis and for the harm done to them by their exposure to meningitis during the period of alleged delay in diagnosis and treatment.

It has repeatedly been held that there is no recovery in this State for psychic or emotional injuries suffered as a result of observing injury inflicted upon one's child (Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807; Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419). This principle extends to the area of medical malpractice in negligently failing to diagnose a malady or disease, or risk of same, to which the plaintiffs' child has become exposed (Howard v. Lecher, 42 N.Y.2d 109, 397 N.Y.S.2d 363, 366 N.E.2d 64; Aquilio v. Nelson, 78 A.D.2d 195, 434 N.Y.S.2d 520; see also Vaccaro v. Squibb Corporation, 52 N.Y.2d 809, 436 N.Y.S.2d 871, 418 N.E.2d 386). These and other cases hold that psychic or emotional injury is cognizable only when alleged by one to whom a duty of care was owed or who has also suffered direct injury as a result of another's negligence or malpractice (see Shanahan v. Orenstein, 52 A.D.2d 164, 383 N.Y.S.2d 327, app. dsmd. 40 N.Y.2d 985, 390 N.Y.S.2d 927, 359 N.E.2d 435). However, where a duty to the parent is breached, liability ensues. This was the case in Johnson v. Jamaica Hospital (95 A.D.2d 598, 467 N.Y.S.2d 634), where the parents were permitted to sue to recover for psychic injuries stemming from their 9-day old daughter's "disappearance" from the defendant hospital to which they had entrusted her. The child had been kidnapped from the hospital. A divided court ruled that the hospital "owed a direct duty to the plaintiffs to care for and protect their infant daughter whom they had left in its custody, and plaintiffs, as 'direct victims' * * * of the breach complained of, are possessed of a cognizable cause of action for their psychic injuries (cf. Kennedy v. McKesson Co., 58 N.Y.2d 500, 462 N.Y.S.2d 421, 448 N.E.2d 1332). Such a claim constitutes an exception to the general rule precluding recovery for negligently caused psychological trauma with ensuing emotional, rather than physical, consequences" (95 A.D.2d at pp. 599-600, 467 N.Y.S.2d 634).

In contrast, a doctor or a hospital cannot be held liable to the patient's family for emotional distress or psychic harm as a result of malpractice in treating the patient (Quijije v. Lutheran Medical Center, 92 A.D.2d 935, 460 N.Y.S.2d 600, app. dsmd. 59 N.Y.2d 1025, 466 N.Y.S.2d 966, 453 N.E.2d 1255; Rainnee v. Community Memorial Hospital, 87 A.D.2d 707, 448 N.Y.S.2d 897, mot. for lv. to app. den. 57 N.Y.2d 607, 455 N.Y.S.2d 1026; Bessette v. St. Peter's Hospital, 51 A.D.2d 286, 381 N.Y.S.2d 339).

In any case of medical malpractice it is foreseeable that many individuals at various degrees of closeness to the directly injured party will suffer emotional distress. If such foreseeability is held to create or define a duty as a foundation for liability, it may well open our courts to an inundation of claims for emotional injuries extending far afield of the epicenter of the injury, "like the ripplings of the waters, without end" (Tobin v. Grossman, supra, 24 N.Y.2d at p. 619, 301 N.Y.S.2d 554, 249 N.E.2d 419). Thus far this problem has been dealt with in this State by limiting recovery for emotional distress to those directly injured as a result of the act of negligence or malpractice, and denying the claims of third parties as mere "bystanders" (Lafferty v. Manhasset Medical Center Hospital, 54 N.Y.2d 277, 445 N.Y.S.2d 111, 429 N.E.2d 789).

Special Term recognized as much in interpreting the second and third causes of action in the complaint as stemming not from the adult plaintiffs' observance of the disease's impact upon the infant-plaintiff, but rather from "the psychic injuries and the increased apprehension of contracting the disease * * * alleged to flow from the increased exposure to meningitis". In this respect the court viewed the adult plaintiffs as parties directly injured by the malpractice because of their alleged trauma over exposure to their child's contagious disease. Such a theory of recovery would open up a wide area for claims in that anyone having a reasonable fear of exposure to a contagious disease, no matter how distantly related to the victim of the disease, would now have a cognizable cause of action against a doctor who failed timely to make a proper diagnosis. Neither logic nor policy warrant an extension of the scope of duty owed to such a widening class of potential claimants. Indeed, the only cases permitting recovery for fear of contracting a non-contagious disease involved claims on behalf of the patients themselves, the victims of the malpractice alleged (Ferrara v. Galluchio, 5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249; see Trapp v. Metz, 28 N.Y.2d 913, 323 N.Y.S.2d 166, 271 N.E.2d 697, revg. 35 A.D.2d 851, 317 N.Y.S.2d 614). Opening our courts to the claims of third parties who fear the potential exposure to a contagious disease would escalate liability to all relatives and friends of the victim.

Since this case was argued, the Court of Appeals has reviewed the applicable law in deciding two cases, Bovsun v. Sanperi and Kugel v. Mid-Westchester Industrial Park, Inc. (61 N.Y.2d 219, 473 N.Y.S.2d 357, 461 N.E.2d 843). In Bovsun, the mother and daughter were passengers in a station wagon driven by the father. He stopped the car at the side of the road, alighted from the vehicle, went around to the rear and leaned inside the open tailgate window. His wife remained seated in the front passenger seat and the daughter in the rear passenger seat. The station wagon was struck in the rear by an automobile. The father was seriously injured. The mother and daughter suffered less serious injuries. Neither the mother nor the daughter actually saw the other vehicle strike their station wagon and injure the father. In the action brought to recover for the injuries sustained by the father, the mother and daughter included causes of action to recover damages for emotional distress premised upon the father's injuries.

In Kugel, the family car was being driven by the father. The mother was in the front passenger seat with their one year-old daughter in her lap. The other daughter, four years old, was also seated in the car. The car was struck by an automobile, causing physical injuries to all four members of the family. The one-year-old daughter died a few hours after the accident as a result of various severe injuries alleged to have been sustained in the accident. In the action to recover damages for the injuries sustained, the parents sought damages for "the immediate severe emotional trauma of seeing suffer extreme physical injury within their close proximity." The Court of Appeals sustained both complaints, albeit acknowledging the reluctance of the courts of this state to recognize any liability for mental distress which may result from the mere observation of a third person's peril or harm.

The court distinguished Tobin v. Grossman (supra), where recovery was denied a mother who had been in no danger of bodily harm herself but had sought damages for the mental distress she suffered in viewing the serious injuries sustained by her daughter when the child was struck by an automobile. There the premise for the denial of liability was that liability to the foreseeable bystander could not be limited in any rational way and could lead to unlimited liability albeit the bystander may well have been within the "zone of danger."

The Tobin court stated, at 24 N.Y.2d p. 613, 301 N.Y.S.2d 554, 249 N.E.2d 419, that the issue was "whether the concept of duty in tort should be extended to third persons, who do not sustain any physical impact in the accident or fear for their own safety." The zone-of-danger rule allows one who is threatened with bodily harm in consequence of a defendant's negligence to recover for emotional distress resulting from viewing the death of, or serious physical injury to, a member of his or her immediate family....