Opinion
12-14-2016
Anneya WARD, appellant, v. Chista SAFAJOU, etc., et al., defendants, Nhan Tai, etc., et al., respondents.
John H. Fisher, P.C. (Powers & Santola, LLP, Albany, NY [Michael J. Hutter ], of counsel), for appellant. Westermann, Sheehy, Keenan, Samaan & Aydelott, LLP, White Plains, NY (Mary Pat Burke and Jennifer Bennice of counsel), for respondents Nhan Tai and Gail McDonald–Pearson. Phelan, Phelan & Danek, LLP, Albany, NY (Timothy S. Brennan of counsel), for respondent Vassar Brothers Hospital.
John H. Fisher, P.C. (Powers & Santola, LLP, Albany, NY [Michael J. Hutter ], of counsel), for appellant.
Westermann, Sheehy, Keenan, Samaan & Aydelott, LLP, White Plains, NY (Mary Pat Burke and Jennifer Bennice of counsel), for respondents Nhan Tai and Gail McDonald–Pearson.
Phelan, Phelan & Danek, LLP, Albany, NY (Timothy S. Brennan of counsel), for respondent Vassar Brothers Hospital.
RUTH C. BALKIN, J.P., THOMAS A. DICKERSON, SYLVIA O. HINDS–RADIX, and VALERIE BRATHWAITE NELSON, JJ.
In an action to recover damages for medical malpractice, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Putnam County (Lubell, J.), dated August 6, 2014, as granted that branch of the motion of the defendants Nhan Tai and Gail McDonald–Pearson which was for summary judgment dismissing the complaint insofar as asserted against them, and the separate motion of the defendant Vassar Brothers Hospital for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
The plaintiff commenced this action to recover damages for emotional distress she allegedly sustained as a result of the defendants' medical malpractice in failing to recognize or act upon fetal distress, causing in utero injury to her fetus. The defendants Nhan Tai and Gail McDonald–Pearson moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff could not recover for any alleged emotional distress because the infant was born alive. The defendant Vassar Brothers Hospital separately moved for summary judgment dismissing the complaint insofar as asserted against it on the same ground. In opposition to the motions, the plaintiff conceded that the infant was born alive, but argued that she nonetheless could recover for her own emotional distress because the infant had no consciousness from the time of birth until she died eight days later. The Supreme Court awarded summary judgment to the moving defendants dismissing the complaint insofar as asserted against each of them on the ground that because the infant was born alive, the mother could not recover for her own emotional distress.
When an infant who is injured by medical malpractice while in utero survives the pregnancy, the infant may seek damages for his or her injuries (see Sheppard–Mobley v. King, 4 N.Y.3d 627, 636, 797 N.Y.S.2d 403, 830 N.E.2d 301 ; Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691 ). If the pregnant mother suffers an independent injury as a result of malpractice, she may commence suit to recover for her own personal injuries (see Sheppard–Mobley v. King, 4 N.Y.3d at 636, 797 N.Y.S.2d 403, 830 N.E.2d 301 ; Ferrara v. Bernstein, 81 N.Y.2d 895, 898, 597 N.Y.S.2d 636, 613 N.E.2d 542 ). If the malpractice causes a stillbirth or miscarriage, the mother can recover for emotional injuries even without showing that she suffered an independent physical injury (see Broadnax v. Gonzalez, 2 N.Y.3d 148, 777 N.Y.S.2d 416, 809 N.E.2d 645 ). However, where, as here, the alleged medical malpractice causes in utero injury to a fetus that is born alive, the mother cannot recover damages for emotional harm (see Sheppard–Mobley v. King, 4 N.Y.3d 627, 797 N.Y.S.2d 403, 830 N.E.2d 301 ).
We disagree with the plaintiff's contention that her case falls within a legal void left open by the Court of Appeals' determinations in Sheppard–Mobley v. King, 4 N.Y.3d 627, 797 N.Y.S.2d 403, 830 N.E.2d 301 and Broadnax v. Gonzalez, 2 N.Y.3d 148, 777 N.Y.S.2d 416, 809 N.E.2d 645. In Broadnax v.
Gonzalez, the Court of Appeals overruled prior precedent and held that a mother could recover for emotional injuries when medical malpractice caused a stillbirth or a miscarriage (see id. ). It did so in order to remedy the injustice that a negligent medical caregiver otherwise was immunized when the malpractice caused a miscarriage or stillbirth, since the fetus cannot commence suit and the parent cannot assert a cause of action to recover damages for wrongful death where there was no birth (see Sheppard–Mobley v. King, 4 N.Y.3d at 637, 797 N.Y.S.2d 403, 830 N.E.2d 301 ; Broadnax v. Gonzalez, 2 N.Y.3d at 154, 777 N.Y.S.2d 416, 809 N.E.2d 645 ). The Court provided a remedy to this "narrow, but indisputably aggrieved, class of plaintiffs" (Broadnax v. Gonzalez, 2 N.Y.3d at 154, 777 N.Y.S.2d 416, 809 N.E.2d 645 ). In Sheppard–Mobley v. King, the Court declined to broaden that narrow class to cases where the fetus is born alive, noting that "a child born alive may bring a medical malpractice action for physical injuries inflicted in the womb" (Sheppard–Mobley v. King, 4 N.Y.3d at 637, 797 N.Y.S.2d 403, 830 N.E.2d 301 ; see Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691 ). The instant case falls squarely within Sheppard–Mobley (cf. Warnock v. Duello, 30 A.D.3d 818, 819, 816 N.Y.S.2d 595 ).
Contrary to the plaintiff's contention, an infant who dies soon after birth is not without a remedy to recover for any alleged wrongs suffered in utero (see Sheppard–Mobley v. King, 4 N.Y.3d at 636, 797 N.Y.S.2d 403, 830 N.E.2d 301 ; Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691 ; Levin v. New York City Health & Hosps. Corp. [Harlem Hosp. Ctr.], 119 A.D.3d 480, 484, 990 N.Y.S.2d 490 ; James v. Middletown Community Health Ctr., 278 A.D.2d 280, 281, 718 N.Y.S.2d 358 ; cf. Cummins v. County of Onondaga, 84 N.Y.2d 322, 324, 618 N.Y.S.2d 615, 642 N.E.2d 1071 ; McDougald v. Garber, 73 N.Y.2d 246, 255, 538 N.Y.S.2d 937, 536 N.E.2d 372 ; Parilis v. Feinstein, 49 N.Y.2d 984, 985, 429 N.Y.S.2d 165, 406 N.E.2d 1059 ; Rivera v. City of New York, 80 A.D.3d 595, 597, 915 N.Y.S.2d 281 ).
Accordingly, the Supreme Court properly awarded summary judgment to the moving defendants dismissing the complaint insofar as asserted against each of them.