Tenuto v. Lederle Laboratories, Div. of American Cyanamid Co.

• Decision Date: 29 August 1994
• Citation: 207 A.D.2d 541,616 N.Y.S.2d 391
• Parties: Dominick TENUTO, et al., Appellants, v. LEDERLE LABORATORIES, DIVISION OF AMERICAN CYANAMID COMPANY, Defendant. Leroy L. Schwartz, M.D., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 391

616 N.Y.S.2d 391

207 A.D.2d 541

Dominick TENUTO, et al., Appellants, v. LEDERLE LABORATORIES, DIVISION OF AMERICAN CYANAMID COMPANY Defendant Leroy L. Schwartz, M.D., Respondent.

Supreme Court, Appellate Division Second Department.

Aug. 29, 1994.

Edelman & Edelman, P.C., Brooklyn (Martin W. Edelman and Sandra K. Janin, of counsel), for appellants.

Heidell, Pittoni, Murphy & Bach, P.C., New York City (Rosary A. Morelli and J. Robert Sandoval, of counsel), for respondent.

Before MANGANO, P.J., and BRACKEN, JOY and HART, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Richmond County (Amann, J.), dated December 22, 1992, which granted the defendant Schwartz's motion for summary judgment dismissing the complaint insofar as it is asserted against him.

ORDERED that the order is affirmed, with costs.

This is an action to recover damages for personal injuries allegedly sustained by the plaintiffs, when exposed to a "live polio virus * * * contained in the excrement of their infant daughter" as a result of defendant, Dr. Schwartz's failure to inform the plaintiffs that they might contract paralytic poliomyelitis through contact with their daughter's excrement.

It is undisputed that on January 9, May 7, and July 3, 1979, Dr. Schwartz administered an oral polio vaccine, Orimune (hereinafter OPV), to the plaintiffs' infant daughter, Diana Tenuto.

After the second administration of the OPV, on or about May 20, 1979, the plaintiff-father underwent a non-emergency operative procedure, i.e., an anal fistula, after which he continued his usual contact with his daughter and allegedly, within three weeks after the second administration of the vaccine, contracted paralytic poliomyelitis. The action by Elizabeth Tenuto is a derivative one for loss of services.

Dr. Schwartz moved for summary judgment on the ground that the plaintiffs failed to state a cause of action cognizable under the laws of the State of New York.

The duty of the physician or "person providing * * * treatment" to obtain an informed consent is expressly provided by the Legislature through Public Health Law Statute § 2805-d(1) as follows:

"Lack of informed consent means the failure of the person providing professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical * * * practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation".

The clear and unambiguous wording of the statute evinces an intent by the Legislature to include only "patients" within its scope.

Contrary to the plaintiffs' contention, the courts have not extended protection under Public Health Law § 2805-d to non-patient third parties. Such protection has only been extended to recognize a fetus in utero subject to treatment under the unique circumstances imposed by pregnancy (see, Hughson v. St. Francis Hosp. of Port Jervis, 92 A.D.2d 131, 459 N.Y.S.2d...