Martell v. St. Charles Hosp.

• Decision Date: 19 October 1987
• Parties: Maria MARTELL, Plaintiff, v. ST. CHARLES HOSPITAL, Lea Tala and Jerome Weinraub, Defendants.
• Court: New York Supreme Court

Page 342

523 N.Y.S.2d 342

137 Misc.2d 980

Maria MARTELL, Plaintiff, v. ST. CHARLES HOSPITAL, Lea Tala and Jerome Weinraub, Defendants.

Supreme Court, Trial Term,

Suffolk County, Part X.

Oct. 19, 1987.

Morris J. Eisen, P.C., New York City, for plaintiff.

Wortman, Fumuso, Kelly, DeVerna & Snyder, Huntington, for Lea Tala.

Furey & Furey, P.C., Hempstead, for defendant Jerome Weinraub.

Montfort, Healy, McGuire & Salley, Mineola, for defendant St. Charles Hosp.

DANIEL F. LUCIANO, Justice.

This is an action commenced by the plaintiff, Maria Martell, seeking to recover for emotional injuries allegedly sustained as a consequence of being erroneously informed by the defendant physicians, Lea Tala and Jerome Weinraub, that she was suffering from cancer, upon examination of x-rays taken of the plaintiff's, Maria Martell, back at the emergency room of the defendant, St. Charles Hospital, on July 28, 1982.

There are several applications currently before the Court.

The defendant, Lea Tala, has moved "for an Order pursuant to CPLR 3211(a)(7), dismissing the plaintiff's Complaint for failure to state a cause of action or in the alternative, an Order striking the plaintiff's Note of Issue for the reason that discovery in this action is not complete". The defendant, Jerome Weinraub, has cross-moved for "[a]n Order dismissing the plaintiff's Complaint pursuant to CPLR Section 3211(a)(7) for failure to state a cause of action, or in the alternative, directing plaintiff to submit a medical affidavit substantiating the proximate cause between her alleged mental anguish and the treatment provided by the defendants in this action". The defendant, St. Charles Hospital, has moved for an order: "(1) Pursuant to CPLR 3212 granting defendant ST. CHARLES HOSPITAL summary judgment dismissing plaintiff's complaint for failure to state a cause of action, or in the alternative, (2) Limiting the plaintiff's damages to the two days between the original diagnosis by Dr. Tala and the second diagnosis by the plaintiff's personal physician, that being the time that the plaintiff was uninformed (sic) as to her true medical condition."

The plaintiff, Maria Martell, has responded with three cross-motions seeking costs upon the three said cross-motions and for the motion and two cross-motions of the respective defendants, Lea Tala, Jerome Weinraub and St. Charles Hospital, on the ground that those applications by the said defendants are "spurious and frivolous."

(Another motion by the defendant, Jerome Weinraub, seeking to strike the plaintiff's, Maria Martell, note of issue and other relief is considered in a separate order and opinion.)

Initially it is observed that the motion by the defendant, Lea Tala, and the cross-motion by the defendant, Jerome Weinraub, to dismiss for failure to state a cause of action pursuant to Civil Practice Law and Rules 3211(a)(7), made after joinder of issue shall be deemed a motion and cross-motion for summary judgment. ( Kotick v. Desai, 123 A.D.2d 744, 507 N.Y.S.2d 217; Impastato v. DeGirolamo, 95 A.D.2d 845, 464 N.Y.S.2d 382; 4 Weinstein-Korn-Miller, New York Civil Practice, paragraph 3211.02; see Rich v. Lefkovits, 56 N.Y.2d 276, 452 N.Y.S.2d 1, 437 N.E.2d 260.)

The motion and the cross-motion of the defendant doctors, Lea Tala and Jerome Weinraub, raise the issue of whether the claimed emotional injuries are compensable under the circumstances alleged herein.

In Kennedy v. McKesson Co., 58 N.Y.2d 500, 462 N.Y.S.2d 421, 448 N.E.2d 1332, the Court of Appeals categorized three types of cases relating to this issue. "The first recognizes that when there is a duty owed by defendant to plaintiff, breach of that duty resulting directly in emotional harm is compensable even though no physical injury occurred." (58 N.Y.2d at 504, 462 N.Y.S.2d 421, 448 N.E.2d 1332.) The second category involves those cases in which a plaintiff seeks recovery for emotional injuries for shock and fear incurred as a consequence of physical injuries sustained by a third person, although the plaintiff himself or herself was not in the "zone of danger". In this category of cases the plaintiff is not entitled to recover damages. "The third branch of the emotional injury decisions involves the violation of a duty to plaintiff which results in physical injury to a third person but only financial or emotional harm or both to the plaintiff." (58 N.Y.2d at 505, 462 N.Y.S.2d 421, 448 N.E.2d 1332.) In these cases recovery for emotional injury is not allowed.

In summarizing its review of these cases the Court said, "[t]he rule to be distilled from those cases is that there is no duty to protect from emotional injury a bystander to whom there is otherwise owed no duty, and, even as to a participant to whom a duty is owed, such injury is compensable only when a direct, rather than a consequential, result of the breach." (58 N.Y.2d at 506, 462 N.Y.S.2d 421, 448 N.E.2d 1332.)

Thus, the Court of Appeals left undisturbed the ruling in Battalla v. State of New York, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729, which permitted a recovery for emotional injuries. In that case the infant plaintiff was placed in a ski chair lift by an employee of the defendant, State of New York, who failed to secure and properly lock the belt intended to protect the occupant. As a result the infant plaintiff became frightened and hysterical upon the descent suffering "severe emotional and neurological disturbances with residual physical manifestation." (10 N.Y.2d at 239, 219 N.Y.S.2d 34, 176 N.E.2d 729.)

The defendant doctors, Lea Tala and Jerome Weinraub, contend, however, that the circumstances alleged herein do not support the plaintiff's, Maria Martell, right to recover for her claimed emotional injuries. In support of this position they cite Green v. Leibowitz, 118 A.D.2d 756, 500 N.Y.S.2d 146, in which the Court rejected a claim of negligent infliction of emotional distress stating the following:

We also reject the plaintiff's contention that recovery may be had for the negligent infliction of emotional distress whenever a direct duty to the plaintiff is owed and a breach of that duty results in emotional injury. While the plaintiff is correct in stating that in New York, physical injury is no longer a necessary element of a cause of action to recover damages for negligent infliction of emotional distress ( see, e.g., Kennedy v. McKesson Co., 58 NY2d 500, 504 [462 N.Y.S.2d 421, 448 N.E.2d 1332] ), nevertheless, we have never recognized a cause of action as broad as that asserted by the plaintiff, which would indeed encompass the ordinary case of legal malpractice. While physical injury is no longer a necessary element, the cause of action must, nevertheless, be premised upon a breach of duty which "unreasonably endanger[s] the plaintiff's physical safety" ( Bovsun v Sanperi, 61 NY2d 219, 229 [473 N.Y.S.2d 357, 461 N.E.2d 843]; see also, Kennedy v McKesson Co., supra [while the plaintiff was allowed to seek recovery of pecuniary losses recovery for emotional disturbance was denied as he had not been exposed to risk of bodily harm by the negligence of the defendant]; Becker v Schwartz, 46 NY2d 401 [413 N.Y.S.2d 895, 386 N.E.2d 807] [the plaintiffs were not exposed to bodily harm, but were allowed to seek recovery for pecuniary losses sustained in consequence of the defendant's breach of due care owed to them in that regard]; Battalla v State of New York, 10 NY2d 237 [219 N.Y.S.2d 34, 176 N.E.2d 729] [damages are recoverable for psychic injury caused by fear for one's own physical safety] ).

(118 A.D.2d at 757, 500 N.Y.S.2d 146.)

In this Court's view the Appellate Division, Second Department, in Green v. Leibowitz, supra, has added a requirement of an additional element of cause of action to recover damages for emotional injuries not intended to be included by the Court of Appeals. In Kennedy v. McKesson Co., supra, the first category of cases, in which recovery for emotional injuries was permitted, was that in which there was a breach of a duty owed by a defendant to a plaintiff resulting directly in emotional harm. The Court of Appeals did not require that the breach of duty constitute the unreasonable placement of the plaintiff in physical danger. This may be concluded from the Court of Appeals' citation of Johnson v. State of New York, 37 N.Y.2d 378, 372 N.Y.S.2d 638, 334 N.E.2d 590 and Lando v. State of New York, 39 N.Y.2d 803, 385 N.Y.S.2d 759, 351 N.E.2d 426. The Appellate Division, Second Department, in Green v. Leibowitz, supra, at 757-758, 500 N.Y.S.2d 146, in dealing with these cases seemed merely to conclude that they represent another class of cases in which there may be recovery for emotional injury by stating "[n]or does the plaintiff's claim come within the recognized exception to the foregoing which permits recovery for emotional harm to a close relative resulting from the negligent failure to deliver a corpse, or the negligent delivery of a false message of death ..." citing Johnson v. State of New York, supra and Lando v. State of New York, supra. Certainly, in its recent opinion in Martinez v. Long Island Jewish Hillside Medical Center, 70 N.Y.2d 697, 518 N.Y.S.2d 955, 512 N.E.2d 538, the Court of Appeals gave no indication that it had added the element identified in Green v. Leibowitz, supra, as an element of the cause of action.

The rule of law set forth in Green v. Leibowitz, supra, which might appear to mandate dismissal of the complaint in the instant action has no application to the facts herein. What distinguishes Green v. Leibowitz, supra, from the case at bar, in this Court's view, is the foreseeability of the asserted wrongful act resulting in emotional injury.

In this regard it should be noted here that in tort law the term "foreseeability" has two distinct applications. In one instance it is used in the analysis of the question of whether a defendant has actually breached a duty to a plaintiff; that is whether "th...