Lynch v. Bay Ridge Obstetrical and Gynecological Associates, P.C.

CourtNew York Court of Appeals
Writing for the CourtHANCOCK; TITONE; WACHTLER, C.J., and SIMONS, KAYE, ALEXANDER and BELLACOSA, JJ., concur with HANCOCK; TITONE
Citation536 N.Y.S.2d 11,72 N.Y.2d 632,532 N.E.2d 1239
Decision Date27 October 1988
Parties, 532 N.E.2d 1239, 57 USLW 2287 Jacqueline J. LYNCH et al., Appellants, v. BAY RIDGE OBSTETRICAL AND GYNECOLOGICAL ASSOCIATES, P.C., et al., Respondents.

Page 11

536 N.Y.S.2d 11
72 N.Y.2d 632, 532 N.E.2d 1239, 57 USLW 2287
Jacqueline J. LYNCH et al., Appellants,
v.
BAY RIDGE OBSTETRICAL AND GYNECOLOGICAL ASSOCIATES, P.C., et
al., Respondents.
Court of Appeals of New York.
Oct. 27, 1988.

Page 12

Joseph E. Mohbat, New York City, for appellants.

Jeffrey N. Rejan, New York City, and Alvin P. Bluthman, Brooklyn, for respondents.

OPINION OF THE COURT

HANCOCK, Judge.

Plaintiffs appeal from an order dismissing their malpractice complaint for failure to state a cause of action (CPLR 3211). In her complaint and supporting papers (see, CPLR 3211), plaintiff * alleges that she consulted defendant Rubino, her gynecologist, because she had not had a menstrual period for over three months and her "home pregnancy tests" were negative. After a visual examination and with no blood or urine analysis, defendant informed her that she was not pregnant. Without explaining any of the attendant risks, he prescribed the hormonal drug Provera. When plaintiff had the prescription filled, she became aware--from the warning on the label and advice given by the pharmacist--that the drug was known to pose a serious risk of producing congenital defects in the child if ingested during early pregnancy. Relying on Rubino's advice that she was not pregnant, plaintiff took the drug as prescribed. When menstruation did not occur, she consulted another gynecologist who ascertained from laboratory tests that she was indeed pregnant and cautioned her about the drug's potentially harmful effects on a fetus in early stages. Fearing that these harmful effects had occurred, plaintiff and her husband elected to have the pregnancy terminated.

Plaintiff alleges that defendants' negligence forced her either to risk having a congenitally defective child or to submit to an abortion in violation of her "personal, moral and religious convictions". She seeks damages for her physical, psychological, and emotional injuries resulting from the abortion and from having to decide whether to undergo it.

The courts below--citing Tebbutt v. Virostek, 65 N.Y.2d 931, 493 N.Y.S.2d 1010, 483 N.E.2d 1142, Bovsun v. Sanperi, 61 N.Y.2d 219, 473 N.Y.S.2d 357, 461 N.E.2d 843 and Vaccaro v. Squibb Corp., 52 N.Y.2d 809, 436 N.Y.S.2d 871, 418 N.E.2d 386--viewed the case as involving an injury to the fetus for which plaintiffs could not recover emotional or psychological damages. Additionally, the Appellate Division held that Rubino's conduct could not have been the proximate cause of the injuries stemming from the abortion. Unlike plaintiffs in Martinez v. Long Is. Jewish Hillside Med. Center, 70 N.Y.2d 697, 518 N.Y.S.2d 955, 512 N.E.2d 538, the court reasoned, plaintiffs here acted "on their own, without the affirmative advice of the defendants, thereupon took the final step of procuring an abortion" (134 A.D.2d 240, 242, 520 N.Y.S.2d 431). We now modify.

The complaint and affidavits sufficiently define a cause of action in malpractice for the physical and emotional injuries suffered by plaintiff as a result of defendants' negligence in rendering medical services to plaintiff, and, thereby, breaching their duty of care owed directly to her. Contrary to defendants' contentions, plaintiff is not seeking to recover for emotional distress resulting from injuries inflicted on

Page 13

the fetus (cf., Tebbutt v. Virostek, 65 N.Y.2d 931, 493 N.Y.S.2d 1010, 483 N.E.2d 1142, supra; Vaccaro v. Squibb Corp., 52 N.Y.2d 809, 436 N.Y.S.2d 871, 418 N.E.2d 386, supra ). The breach of duty claimed by plaintiff is Rubino's failure to perform a pregnancy test before advising her that she was not pregnant and before prescribing a drug with potentially harmful side effects if taken during early pregnancy. Indeed, according to her pleading she was the patient and she was the one injured by the negligent diagnosis and prescription. It is the erroneous advice that she was not pregnant--not an injury to a third person as in Tebbutt or Vaccaro or Bovsun--which, plaintiff asserts, led to the actions directly causing her injuries: her ingestion of the dangerous drug and her decision to terminate the pregnancy to avoid the drug's harmful effects. Reduced to its essentials, the case presents a malpractice action based on medical advice which put plaintiff in the position of having to make decisions and take actions which caused her physical and emotional injuries. That these decisions and actions involved an abortion does not, as defendants suggest, require us to regard the case as something it is not--i.e., an effort by plaintiff to assert a claim for damages on behalf of her unborn child for injuries done to it (see, Endresz v. Friedberg, 24 N.Y.2d 478, 301 N.Y.S.2d 65, 248 N.E.2d 901) or a claim for damages based on plaintiff's emotional and psychological stress in witnessing and knowing of the injury to the fetus and its loss (see, Tebbutt v. Virostek, supra ).

In addressing defendants' contention that the claimed negligence could not, as a matter of law, be the proximate cause of the injuries incident to the abortion, we must, of course, assume the truth of the allegations in the complaint and supporting affidavits (Cohn v. Lionel Corp., 21 N.Y.2d 559, 562, 289 N.Y.S.2d 404, 236 N.E.2d 634). Ordinarily, plaintiff's allegations that the injury was a consequence of her physician's negligent advice would be sufficient to create a question of fact for the jury (see, Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666; Sewar v. Gagliardi Bros. Serv., 69 A.D.2d 281, 289, 418 N.Y.S.2d 704 affd. 51 N.Y.2d 752, 432 N.Y.S.2d 367, 411 N.E.2d 786). Defendants argue, however, that this case presents an exception to the rule because plaintiff did not submit to the abortion on the advice of her physician, as in Martinez, but made the choice to proceed on her own. The independence of plaintiff's decision, defendants contend, elevates her choice to a superseding cause which absolves them from liability. We disagree.

We have recognized that an intervening act which is "not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct * * * may well be a superseding act which breaks the causal nexus (see, e.g., Martinez v. Lazaroff, 48 N.Y.2d 819, 820 Ventricelli v. Kinney System Rent A...

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51 practice notes
  • Montagnino v. Inamed Corp., INDEX NO. 13532/07
    • United States
    • United States State Supreme Court (New York)
    • 11 Mayo 2012
    ...suffered the injury complained of. (Lyons v. McCauley, 252 A.D.2d 516, 675 N.Y.S.2d 375 (2d Dept. 1998); Lynch v. Bay Ridge Obstetrical, 72 N.Y.2d 632, 536 N.Y.S.2d 11 (1998)). The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted communi......
  • Williams v. Manchester, No. 1-05-2126.
    • United States
    • United States Appellate Court of Illinois
    • 16 Marzo 2007
    ...219, 588 A.2d 1264 (1991), Deutsch v. Shein, 597 S.W.2d 141 (Ky.1980); Lynch v. Bay Ridge Obstetrical & Gynecological Associates, P.C., 72 N.Y.2d 632, 536 N.Y.S.2d 11, 532 N.E.2d 1239 (1988). Each of these cases, thus, allowed the woman to be compensated for her injuries from the loss of th......
  • Brooklyn Navy Yard Asbestos Litigation, In re, No. 1197
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 30 Junio 1992
    ...nor foreseeable. Woodling v. Garrett Corp., 813 F.2d 543, 555 (2d Cir.1987); Lynch v. Bay Ridge Obstetrical & Gynecological Assocs., 72 N.Y.2d 632, 636, 536 N.Y.S.2d 11, 13, 532 N.E.2d 1239, 1241 (1988); Restatement (Second) of Torts § 442 (1965). An intervening act breaks the causal nexus ......
  • In re Joint Eastern & Southern Dist. Asbestos Lit., No. 88 Civ. 3317 (RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 23 Julio 1993
    ...must be neither normal nor foreseeable, see Woodling, 813 F.2d at 555; Lynch v. Bay Ridge Obstetrical & Gynecological Assocs., P.C., 72 N.Y.2d 632, 636, 536 N.Y.S.2d 11, 13, 532 N.E.2d 1239, 1241 (1988), which breaks the usual causal nexus of proximate cause because it is extraordinary unde......
  • Request a trial to view additional results
51 cases
  • Montagnino v. Inamed Corp., INDEX NO. 13532/07
    • United States
    • United States State Supreme Court (New York)
    • 11 Mayo 2012
    ...suffered the injury complained of. (Lyons v. McCauley, 252 A.D.2d 516, 675 N.Y.S.2d 375 (2d Dept. 1998); Lynch v. Bay Ridge Obstetrical, 72 N.Y.2d 632, 536 N.Y.S.2d 11 (1998)). The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted communi......
  • Williams v. Manchester, No. 1-05-2126.
    • United States
    • United States Appellate Court of Illinois
    • 16 Marzo 2007
    ...219, 588 A.2d 1264 (1991), Deutsch v. Shein, 597 S.W.2d 141 (Ky.1980); Lynch v. Bay Ridge Obstetrical & Gynecological Associates, P.C., 72 N.Y.2d 632, 536 N.Y.S.2d 11, 532 N.E.2d 1239 (1988). Each of these cases, thus, allowed the woman to be compensated for her injuries from the loss of th......
  • Brooklyn Navy Yard Asbestos Litigation, In re, No. 1197
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 30 Junio 1992
    ...nor foreseeable. Woodling v. Garrett Corp., 813 F.2d 543, 555 (2d Cir.1987); Lynch v. Bay Ridge Obstetrical & Gynecological Assocs., 72 N.Y.2d 632, 636, 536 N.Y.S.2d 11, 13, 532 N.E.2d 1239, 1241 (1988); Restatement (Second) of Torts § 442 (1965). An intervening act breaks the causal nexus ......
  • In re Joint Eastern & Southern Dist. Asbestos Lit., No. 88 Civ. 3317 (RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 23 Julio 1993
    ...must be neither normal nor foreseeable, see Woodling, 813 F.2d at 555; Lynch v. Bay Ridge Obstetrical & Gynecological Assocs., P.C., 72 N.Y.2d 632, 636, 536 N.Y.S.2d 11, 13, 532 N.E.2d 1239, 1241 (1988), which breaks the usual causal nexus of proximate cause because it is extraordinary unde......
  • Request a trial to view additional results

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