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

• Decision Date: 23 October 1997
• Citation: 687 N.E.2d 1300,90 N.Y.2d 606,665 N.Y.S.2d 17
• Parties: , 687 N.E.2d 1300, 1997 N.Y. Slip Op. 8771 Dominick TENUTO et al., Appellants, v. LEDERLE LABORATORIES, DIVISION OF AMERICAN CYANAMID COMPANY, Defendant, and John H. Bishop, as Executor of Leroy L. Schwartz, Deceased, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 17

665 N.Y.S.2d 17

90 N.Y.2d 606, 687 N.E.2d 1300, 1997

N.Y. Slip Op. 8771

Dominick TENUTO et al., Appellants, v. LEDERLE LABORATORIES, DIVISION OF AMERICAN CYANAMID COMPANY, Defendant and John H. Bishop, as Executor of Leroy L. Schwartz, Deceased Respondent.

Court of Appeals of New York.

Oct. 23, 1997.

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

Heidell, Pittoni, Murphy & Bach, P.C., New York City (Daniel S. Ratner, Charles L. Bach, Jr. and Matthew S. Hirsch, of counsel), for respondent.

Donovan Leisure Newton & Irvine, New York City (J. Peter Coll, Jr., of counsel), for defendant.

OPINION OF THE COURT

LEVINE, Judge.

Plaintiffs appeal, pursuant to leave granted by this Court, from an order of the Appellate Division which (1) reversed, on the law, an order of Supreme Court denying the motion for summary judgment of defendant (now deceased) Leroy L. Schwartz, M.D., dismissing the cross claim of defendant Lederle Laboratories; (2) granted that motion; and (3) dismissed the cross claim. The appeal from this order, which is final as to defendant Schwartz under the principle of party finality, brings up for review a prior nonfinal order of the Appellate Division, which affirmed an order of Supreme Court granting defendant Schwartz's motion to dismiss plaintiffs' complaint against him pursuant to CPLR 3211(a)(7). Defendant Lederle Laboratories has not appealed the dismissal of its cross claim against defendant Schwartz. As set forth in the complaint, bill of particulars and other submissions in opposition to defendant Schwartz's motion to dismiss, plaintiffs' allegations, which we must accept as true and accord every possible favorable inference therefrom (see, Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511), would establish the following facts.

In May 1979, based upon advice from Dr. Schwartz, plaintiffs Dominick and Elizabeth Tenuto presented their five-month-old daughter to him for a second dosage of an oral poliomyelitis vaccine manufactured by defendant Lederle Laboratories, trade named "Orimune." Orimune and other similar oral vaccines consist of three live but weakened strains of the polio virus. Although the pharmaceutical manufacturer had rendered the viruses incapable of producing paralytic disease in a person receiving the vaccine, they cause the production of antibodies which will resist an attack by a wild or virulent polio virus. Typically, oral polio vaccines are administered to infants during their first year of life.

While an oral polio vaccine of live viruses has significant clinical advantages over the alternative, original method of polio vaccination (discovered by Dr. Jonas Salk) involving injection of a vaccine containing killed or inactivated polio virus strains, oral vaccines carry certain unique risks. Notably, as is described in detail in Plummer v. Lederle Labs., 819 F.2d 349, 351-353, cert. denied 484 U.S. 898, 108 S.Ct. 232, 98 L.Ed.2d 191, on a rare but statistically predictable basis, the live viruses lodging in the infant recipient's gastrointestinal tract may grow and revert to virulent form. When those wild viruses are later discharged from the infant's bowel in excretion or from the mouth in saliva, contact with the feces or saliva by the child's adult caretakers may result in infection and, in the case of vulnerable adults (i.e., unvaccinated or where immunization has weakened over time), may result in paralytic polio.

The foregoing risk of parental "contact" polio derived from oral vaccination of a child, has been known since 1961. By the 1970s, United States governmental health officials were recommending that consumers be advised of the risks as well as benefits of oral polio vaccines. Accordingly, as of 1977, defendant Lederle Laboratories included in its Orimune package insert some description of the risks and the recommendation, also reproduced in the Physician's Desk Reference, that such danger be communicated to the parents when an infant is to be orally vaccinated, so that suitable precautions can be taken. The insert also warned against injection of the vaccine directly into the bloodstream. ^*

Plaintiffs allege that Dr. Schwartz, although informed that Mr. Tenuto was about to undergo elective surgery, never inquired as to whether he had previously been vaccinated against polio nor advised plaintiffs of the risk of incurring contact polio and of the precautions necessary to prevent exposure, particularly in light of the surgical wound which would result from the immediately impending surgery of Mr. Tenuto.

As a consequence, in caring for his daughter following his operation, Mr. Tenuto was exposed to virulent polio viruses. Within 30 days of the infant's vaccination, Mr. Tenuto began to exhibit the symptoms of paralytic poliomyelitis and was then hospitalized and diagnosed as afflicted with that disease. His polio has rendered him a permanent paraplegic. Plaintiffs submitted, in camera, an affidavit from a qualified scientific expert that he was infected as a result of the oral vaccine administered to his daughter by Dr. Schwartz. A second affidavit, from a medical expert, expressed an opinion that, at the time the vaccine was administered to plaintiffs' infant daughter, the standard of medical care required advising parents of the risk of contact polio and that appropriate precautions should be taken.

The Tenutos subsequently brought this action against Dr. Schwartz and Lederle Laboratories, based on Mr. Tenuto's personal injury and his wife's derivative losses. Dr. Schwartz moved to dismiss the claims against him on the ground that they were based entirely on a failure to obtain the statutory informed consent mandated by Public Health Law § 2805-d--claims which would not lie because the Tenutos were not his patients. Supreme Court agreed and granted Dr. Schwartz's motion. The Appellate Division affirmed for the same reason (207 A.D.2d 541, 616 N.Y.S.2d 391).

We now reverse. The courts below too restrictively read plaintiffs' allegations contained in the complaint, bill of particulars and other papers. A statutory cause of action pursuant to Public Health Law § 2805-d was not the only cognizable legal theory upon which plaintiffs' allegations rested (see, Leon v. Martinez, supra, 84 N.Y.2d, at 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511). Both expressly and by fair implication, plaintiffs have alleged that Dr. Schwartz owed them a duty of care based on common-law principles of ordinary negligence and malpractice. That duty, claimed by plaintiffs, consisted among other things, of complying with the recommendations of the vaccine manufacturer to warn plaintiffs of their personal health risks from the vaccination of their infant daughter, to assess the particular vulnerabilities of plaintiffs to those risks and to advise plaintiffs of precautions to avoid or minimize them. We have concluded, under the circumstances of this case, that a duty of reasonable care extended to plaintiffs despite the absence of a direct doctor/patient treatment relationship between them and Dr. Schwartz.

"The question of whether a member or group of society owes a duty of care to reasonably avoid injury to another is of course a question of law for the courts" (Purdy v. Public Adm'r, 72 N.Y.2d 1, 8, 530 N.Y.S.2d 513, 526 N.E.2d 4, rearg. denied 72 N.Y.2d 953, 533 N.Y.S.2d 60, 529 N.E.2d 428; see also, Eiseman v. State of New York, 70 N.Y.2d 175, 187, 518 N.Y.S.2d 608, 511 N.E.2d 1128; De Angelis v. Lutheran Med. Ctr., 58 N.Y.2d 1053, 1055, 462...