Spano v. Bertocci

• Decision Date: 04 November 2002
• Citation: 299 A.D.2d 335,749 N.Y.S.2d 275
• Court: New York Supreme Court — Appellate Division
• Parties: ANDREA SPANO et al., Appellants-Respondents,<BR>v.<BR>BALDO BERTOCCI, Defendant, and<BR>ESTHER BALDINGER, Respondent-Appellant.

299 A.D.2d 335

749 N.Y.S.2d 275

ANDREA SPANO et al., Appellants-Respondents,

v. BALDO BERTOCCI, Defendant, andESTHER BALDINGER, Respondent-Appellant.

Decided November 4, 2002.

O'Brien, J.P., Friedmann, Schmidt and Townes, JJ., concur.

Ordered that the order is affirmed insofar as appealed from; and it is further,

Ordered that the order is reversed insofar as cross-appealed from, and that branch of the motion of the defendant Esther Baldinger pursuant to CPLR 4404 (a) was, in effect, to set aside so much of the jury verdict as was in favor of the plaintiff Andrea Spano and against her is granted; and it is further,

Ordered that one bill of costs is awarded to the defendant Esther Baldinger.

The plaintiff Andrea Spano (hereinafter the mother) suffers from epilepsy, and requires medication to control epileptic seizures. From 1990, and at all relevant times through 1995, her treating neurologists, including the defendant Dr. Esther Baldinger, have prescribed Depakote to control her seizures. Although she had previously been informed that she should not become pregnant while taking Depakote because it increased the risks of birth defects, in or about June 1994, the mother told Dr. Baldinger that she was trying to become pregnant. According to the mother, Dr. Baldinger informed her that she could safely become pregnant while taking Depakote, as long as she also took folic acid. In or about December 1994, the mother became pregnant with the infant plaintiff, who was born in August 1995, with, among other medical conditions, spina bifida.

The mother, on behalf of herself and the infant plaintiff, commenced the instant action against, among others, Dr. Baldinger to recover damages for medical malpractice. The mother alleged causes of action on behalf of herself and the infant plaintiff based on lack of informed consent and Dr. Baldinger's alleged departures from good and accepted medical practice. At trial, the plaintiffs asserted, inter alia, that Dr. Baldinger had departed from good and accepted practice in her treatment of the mother by, among other things, failing to remove the mother from Depakote and placing her on an alternative medication, by increasing the mother's dosage of Depakote while she was pregnant, and by relying on folic acid as protection against the risks posed by Depakote. They also asserted causes of action based on lack of informed consent due to Dr. Baldinger's alleged failure to warn the mother of the risks of birth defects inherent in taking Depakote.

After trial, the jury found in Dr. Baldinger's favor on the foregoing issues concerning her alleged departure from good and accepted practices, but found in favor of the plaintiffs on the cause of action based on lack of informed consent. The jury awarded damages to the mother for the extraordinary costs of raising the infant plaintiff to age 21, and to the infant plaintiff for past and future pain and suffering, future loss of earnings, and the extraordinary expenses the infant would incur from age 21 through the rest of his life.

Subsequently, Dr. Baldinger moved and the plaintiffs cross-moved to set aside the verdict insofar as it was unfavorable to them. By order dated September 29, 2000, the trial court, inter alia, granted that branch of Dr. Baldinger's motion which was, in effect, to set aside so much of the verdict as was in favor of the infant plaintiff and against her, but denied that branch of her motion which was, in effect, to set aside so much of the verdict as was in favor of the mother and against her. The plaintiffs appeal and Dr. Baldinger cross-appeals from stated portions of the order.

Generally, a surviving child has a right to recover for tortiously inflicted prenatal injuries, including those caused by a physician's failure to obtain the informed consent of the mother (see Hughson v St. Francis Hosp. of Port Jervis, 92 AD2d 131; Kelly v Gregory, 282 App Div 542). However, it is well settled that no cause of action may be maintained on behalf of an infant plaintiff for "wrongful life," i.e., that he or she would never have been born but for the negligence of the defendant (see Alquijay v St. Luke's-Roosevelt Hosp. Ctr., 63 NY2d 978, 979; Becker v Schwartz, 46 NY2d 401; Keselman v Kingsboro Med. Group, 156 AD2d 334). However, a parent may maintain a cause of action on his or her own behalf for "the extraordinary costs incurred" in raising a child with a disability (Ciceron v Jamaica Hosp., 264 AD2d 497, 498; see Alquijay v St. Luke's-Roosevelt Hosp. Ctr., supra; Becker v Schwartz, supra at 411-412).

Contrary to the plaintiffs' contention, the trial court properly granted that branch of Dr. Baldinger's motion...