Park v. Chessin

CourtNew York Supreme Court Appellate Division
Citation400 N.Y.S.2d 110,60 A.D.2d 80
PartiesSteven M. PARK et al., etc., Respondents, v. Herbert CHESSIN et al., Appellants.
Decision Date11 December 1977

Page 110

400 N.Y.S.2d 110
60 A.D.2d 80
Steven M. PARK et al., etc., Respondents,
Herbert CHESSIN et al., Appellants.
Supreme Court, Appellate Division, Second Department.
Dec. 11, 1977.

Page 111

Martin, Clearwater & Bell, New York City (Peter E. Tangredi, New York City and Stephen J. Pribula, Mineola, of counsel), for appellants.

Toberoff & Gould, New York City, for respondents.


DAMIANI, Justice.

At the outset, the general rule should be noted that if a motion to dismiss for failure to state a cause of action (CPLR 3211, subd. (a), par. 7) is addressed to the complaint in its entirety, the validity of any single cause of action will suffice as a ground for denial of the motion (see, e. g., De Maria v. Josephs, 41 A.D.2d 655, 340 N.Y.S.2d 707). However, inasmuch as the plaintiffs have failed to appeal from the dismissal of four causes of action asserted in their complaint, the general rule is not applicable in this case.

In June, 1969 plaintiff Hetty Park gave birth to a baby who lived for only five hours. The cause of death was determined to be polycystic kidney disease, a fatal hereditary disease of such nature that there exists a substantial probability that any future baby of the same parents will be born with it. The plaintiffs allege that immediately after the death of this infant, delivered by the defendant obstetricians, they affirmatively sought out the medical counseling of the defendants involving the risk if any to a child to be born to them and whether it would be afflicted with polycystic kidney disease.

Plaintiffs contend in their amended complaint and bill of particulars, that, in response to their inquiries, the defendants, in wanton and gross disregard of known medical fact, gave them the medically inaccurate advice that the chances of having any future baby with polycystic kidney disease were "practically nil" inasmuch as the disease was not hereditary; that the defendants knew or should have known that the disease was hereditary; that the defendants knew that the plaintiffs would rely on the superior knowledge and medical expertise of the defendants in deciding whether to have another child, and would not have chosen to have another baby had medically accurate advice been rendered; and that the plaintiffs did in fact rely on the assurance and advice of the defendants so that the female plaintiff again became pregnant and had another baby (Lara Park), which was also delivered by the defendants, in July, 1970, and which, too, was born with polycystic kidney disease and that Lara lived for about two and one-half years before succumbing to this fatal disease.

Thereafter, in April, 1972, plaintiffs commenced this action, in the name of the infant to recover damages for so-called "wrongful life" and on their own behalf for medical expenses, emotional distress and loss of services, in medical malpractice and fraud, based, as the bill of particulars asserts, on the alleged negligent failure to properly "warn, advise (and) inform" the plaintiffs of the risks attendant upon a future pregnancy. These acts were alleged to be wrongful because they were "careless, reckless, heedless and (in) wanton disregar of the existing state of medical knowledge, under circumstances in which the defendants had an affirmative duty to give accurate medical-genetic advice, and

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all with subsequent and clearly foreseeable reliance by the plaintiffs, to their detriment. Reducing the amended complaint to elemental terms, the alleged medical malpractice in rendering incorrect medical advice, upon specific direct inquiry, was asserted to be the proximate cause of the injury to the plaintiffs of suffering the needless birth of the genetically deformed child.

Defendants moved to dismiss all eight causes of action based upon this court's rulings in Stewart v. Long Is. Coll. Hosp. (35 A.D.2d 531, 313 N.Y.S.2d 502, affd. 30 N.Y.2d 695, 332 N.Y.S.2d 640, 283 N.E.2d 616), and Howard v. Lecher (53 A.D.2d 420, 386 N.Y.S.2d 460, affd. 42 N.Y.2d 109, 397 N.Y.S.2d 363, 366 N.E.2d 64). Special Term dismissed various causes of action for emotional distress and fraud, but denied the balance of the motion and thus preserved the causes of actions to the infant for "wrongful life", and to the parents in medical malpractice for medical expenses and loss of the wife's services. While the plaintiffs have failed to appeal from the dismissal of four of their causes of action, the defendants have appealed from Special Term's preservation of the remaining four causes of action, i. e., the causes of actions to the infant for "wrongful life" and to the parents in medical malpractice for medical expenses and loss of the wife's services.

In my view, Special Term was correct in denying the motion to dismiss those four causes of action.

In Howard v. Lecher (53 A.D.2d 420, 386 N.Y.S.2d 460, affd. 42 N.Y.2d 109, 397 N.Y.S.2d 363, 366 N.E.2d 64, supra ), the majority of this court, in recognition of the fact that not all civil "wrongs" can find redress in the law, refused to impose upon all obstetricians the duty of becoming forced genetic counselors. A contrary holding would have compelled all such medical specialists to take lengthy genealogical histories of both parents, whether the patient affirmatively requested it or not, whether the medical circumstances indicated cause for alarm or not, and all at the inevitable penalty of bearing the ultimately legal liability should the infant be born with a genetic deformity. It was the view of the majority of this court in Howard that to validate the parents' cause of action, under the circumstances there presented, would make the physician a virtual insurer of the genetic health of newborns, ordinarily a mere fortuitous event. It was decided that no such duty existed between doctor and patient, and hence, in unilaterally seeking to expand the nature of the medical duty owed, the plaintiffs in Howard sought to impose an unwarranted and clearly intolerable burden upon the physician. This was said to be particularly true inasmuch as it is the expectant mother only, and not the father, who occupies the doctor-patient relationship. Yet validating the Howard cause of action would nevertheless compel the doctor to take a genealogical history of the nonpatient father, without whose help the physician could not reach any conclusions with respect to future progeny of the patient-wife. In affirming, the majority of the Court of Appeals agreed with the majority of this court, stating essentially that to validate the Howard cause of action "would require the extension of traditional tort concepts beyond manageable bounds" (Howard v. Lecher, 42 N.Y.2d at 111, 397 N.Y.S.2d at 364, 366 N.E.2d at 65) and that the court has always recognized that "the law must establish, circumscribe and limit the rules ascribing liability in a manner which accords with reason and practicality" (Howard v. Lecher, 42 N.Y.2d at 112, 397 N.Y.S.2d at 365, 366 N.E.2d at 66, citing Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419).

Upon a motion addressed to the sufficiency of a pleading, all of the facts asserted therein must be assumed to be true (Kober v. Kober, 16 N.Y.2d 191, 193, 264 N.Y.S.2d 364, 365, 211 N.E.2d 817, 818; Cohn v. Lionel Corp., 21 N.Y.2d 559, 562, 289 N.Y.S.2d 404, 407, 236 N.E.2d 634, 636). Examined in this light, the facts of the instant case are strikingly different from those in Howard v. Lecher (supra). Plaintiffs do not rest on what the defendant doctors "should have" done, notwithstanding a failure to actually

Page 113

request it. Plaintiffs here allege that they affirmatively sought a specific medical opinion of the defendants with respect to the risks entailed in having another child with one specific genetic disease, under circumstances in which the defendants knew or should have known that plaintiffs had genuine cause to be concerned, and that they would rely on the superior medical knowledge and advice of the defendants, and, in fact, did rely on that inaccurate advice, leading directly to the birth of another baby with this exact genetic disease.

It is a fixed principle of tort law that, "where a party's negligence is directly responsible for physical injury to another, there is no question but that the injured party may recover both for the actual physical injury sustained and for the concomitant mental and emotional suffering which flow as a natural consequence of the wrongful act" (Howard v. Lecher, 42 N.Y.2d 109, 111, 397 N.Y.S.2d 363, 364, 366 N.E.2d 64, 65, supra ). The "physical" injury asserted by plaintiffs here is essentially that the plaintiff wife needlessly suffered the birth of the deformed infant, although it is also alleged that at the conclusion of the pregnancy, the plaintiff-wife was hospitalized for hemorrhaging prior to the delivery.

The judicial inquiry is whether such conduct by the defendants, wrongful to the plaintiffs, is a wrong which is cognizable at law (see, e. g., Tobin v. Grossman, 24 N.Y.2d 609, 615, 301 N.Y.S.2d 554, 558, 249 N.E.2d 419, 422). I believe that it is. Clearly, if the allegations are proven, then the defendants were negligent in giving inaccurate medical advice or in failing to ascertain the correct state of medical knowledge to so advise the plaintiffs or both. "While for one to be held liable in negligence he need not foresee novel or extraordinary consequences, it is enough that he be aware of the risk of danger" (Johnson v. State of New York, 37 N.Y.2d 378, 382, 372 N.Y.S.2d 638, 642, 334 N.E.2d 590, 593). Since the plaintiff wife was the patient of the defendants, and the one to whom a duty of professional medical care was directly owed, it is inconceivable to conclude that the defendants were not "aware of the risk of danger" that false advice would pose (see Johnson v. State of New York, supra, p. 382, 372 N.Y.S.2d p. 642, 334 N.E.2d p....

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