Park v. Chessin , 60 A.D.2d 80 ( 1977 )

OPINION OF THE COURT

Damiani, J.

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 AD2d 655). 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 disregard” of the existing state of medical knowledge, under circumstances in which the defendants had an affirmative duty to give accurate medical-genetic advice, and 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 AD2d 531, affd 30 NY2d 695), and Howard v Lecher (53 AD2d 420, affd 42 NY2d 109). 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 AD2d 420, affd 42 NY2d 109, 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 ultimate 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 gentic 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 NY2d, at p 111) and that the court had 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 NY2d, at p 112, citing Tobin v Grossman, 24 NY2d 609).

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 NY2d 191, 193; Cohn v Lionel Corp., 21 NY2d 559, 562). 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 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 NY2d 109, 111, 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 NY2d 609, 615). 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 NY2d 378, 382). 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). The act of giving wrong genetic-medical advice to plaintiffs, who foreseeably would rely on the defendants’ superior knowledge, is an "act as to * * * [plaintiffs with] possibilities of danger so many and apparent as to entitle * * * [them], to be protected against the doing of it though the harm was unintended” (Palsgraf v Long Is. R. R. Co., 248 NY 339, 345).

No new duty is imposed on any physician in these circumstances; rather validating the parents’ cause of action in the instant case merely extends to a physician a pre-existing duty widely recognized in numerous fields of classic tort law, that one may not speak without prudence or due care when one had a duty to speak, knows that the other party intends to rely on what is imparted, and does, in fact, so rely to his detriment. The injuries that flow therefrom include the economic injuries represented by provable medical and support expenses incurred during the lifetime of the child (see International Prods. Co. v Erie R. R. Co., 244 NY 331; Ultra-mares Corp. v Touche, 255 NY 170). Specifically excluded from recovery under the parents’ cause of action, however, are damages flowing from emotional distress, or mental anguish, to the mother, owing to the inability to calculate damages, and the absence of duty (see, e.g., Howard v Lecher, 42 NY2d 109, 112, supra; Tobin v Grossman, 24 NY2d 609, supra and cases cited therein). This reasoning is not unlike that employed by the Fourth Department in Ziemba v Sternberg (45 AD2d 230) in upholding an action by a parent against a physician for the negligent failure to diagnose a pregnancy so that the mother was prevented from aborting the fetus within a reasonable time, and more recently in Karlsons v Guerinot (57 AD2d 73, 78), in upholding an action quite similar to the one at bar, i.e., against a physician for failure to inform parents of the risks inherent in a second pregnancy with respect to having a deformed child. Validating the causes of action on behalf of both parents, as so limited, would not "inevitably lead to the drawing of artificial and arbitrary boundaries”, as it is only the parents, and not any third party, who would foreseeably rely on the advice of the physician whether to have the baby (Howard v Lecher, 42 NY2d 109, 113, supra; cf. Tobin v Grossman, supra). For these reasons, the first cause of action on behalf of the mother, and the seventh cause of action, on behalf of the father, are valid on their face. Likewise, the fifth cause of action, to the father for loss of his wife’s services, is a valid cause of action, as these damages ordinarily flow from the tort (see dissenting opinion of Cooke, J. in Howard v Lecher, supra, p 116).

The final question is whether there exists a viable cause of action on behalf of the infant for "wrongful life”, the sixth cause of action. The Court of Appeals, in Howard v Lecher, has stated (p 112) that the existence of such a cause of action "has not yet been addressed by our court (cf. Johnson v Yeshiva Univ., 42 NY2d 818), nor is it the question now before us.”

It is commonly said that causes of action for "wrongful life” have not met favor in the courts of this and other jurisdictions (see, e.g., Karlsons v Guerinot, 57 AD2d 73, 79-81, supra; Williams v State of New York, 18 NY2d 481; Stewart v Long Is. Coll. Hosp., 35 AD2d 531, affd 30 NY2d 695, supra; Gleitman v Cosgrove, 49 NJ 22; Zepeda v Zepeda, 41 Ill App 2d 240 cert den 379 US 945; see, also, Note, A Cause of Action for "Wrongful Life”: [A Suggested Analysis], 55 Minn L Rev 58). Rejection has been based on various theories: from the inability to find that the infant is worse off as a result of the negligence which caused the wrongful life, than had the infant never been born (see Karlsons v Guerinot, supra, pp 79-80); to the fact that the fetus could not be legally aborted at the time (see Stewart v Long Is. Coll. Hosp., 35 AD2d 531, supra); and to the impossibility of calculating damages (Gleitman v Cosgrove, 49 NJ 22, supra; Williams v State of New York, supra). But cases are not decided in a vacuum; rather, decisional law must keep pace with expanding technological, economic and social change. Inherent in the abolition of the statutory ban on abortion (Penal Law, former § 125.05; cf. Education Law, former § 6514) is a public policy consideration which gives potential parents the right, within certain statutory and case law limitations, not to have a child. This right extends to instances in which it can be determined with reasonable medical certainty that the child would be born deformed. The breach of this right may also be said to be tortious to the fundamental right of a child to be born as a whole, functional human being. Under the circumstances presented, the portion of the complaint which seeks recovery on behalf of the infant for injuries and conscious pain and suffering caused by defendants’ negligence should be permitted to stand. Thus, I consider the sixth cause, asserted on behalf of the child, to state a cause of action.

Accordingly the order appealed from should be modified by granting so much of the defendants’ motion as requests dismissal of those portions of the first and fifth causes of action which seek to recover damages (1) for the "mental anguish” or emotional distress of plaintiff Hetty B. Park and (2) for the loss of that plaintiff’s services, insofar as the claim for loss of services is based upon her mental anguish or emotional distress.