Ferrara v. Bernstein

179 A.D.2d 79

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 2, 1992
• Status: Published

Opinions

OPINION OF THE COURT

Asch, J.

Plaintiff commenced this medical malpractice action to recover for, inter alia, the emotional trauma and distress suffered when she experienced a spontaneous miscarriage after an unsuccessful abortion procedure.

Upon arriving at 1995 Broadway, the address of Lincoln Medical Practice, plaintiff Ferrara spoke to a receptionist behind a countertop desk. She "advised them that I had an appointment and what it was for, and they handed me papers and told me to go to a waiting area and sit down”. After she had completed the forms, plaintiff and her boyfriend, who had accompanied her, spoke to a nurse who came in and to whom they gave the forms. Plaintiff was told how much the procedure would cost, that she had to pay for it at that time and that she had a choice of either general or local anesthesia. In her testimony, plaintiff noted the people she spoke to did not identify themselves as working for anyone in particular. She did not recall seeing any signs in the room or any directories of personnel. She did remember, however, being told that she had to pay the fee in cash and did so. She also testified that no doctors’ names were mentioned to her at all. Another nurse performed the urine test and a blood test on plaintiff. She was then directed into another room where she changed into a paper gown and was brought into an operating room. After plaintiff lay down on the table, a nurse came in and took her blood pressure "or something” and advised her that the doctor would be right with her. When the doctor came in he introduced himself and told her he was Dr. Wyman Garrett. Dr. Garrett told plaintiff he was going to perform the abortion and explained the procedure. After the procedure, Dr. Garrett said "nothing” to plaintiff. He did come into the recovery room, took her blood pressure and asked how she felt. He did not tell her anything at the time about returning to the clinic, nor did he discuss anything about any follow-up visits with her. However, he told her that she might experience some cramps and that if they became severe or painful not to take aspirin but Tylenol. Just before plaintiff left, a nurse gave her a "Rogam” shot telling her they were giving it to her because she was RH negative. The charge for the shot was extra, $20 or $25. After plaintiff paid and was getting ready to leave, the nurse in the reception area told her to call and make an appointment for two weeks later for a follow-up visit but did not offer to make the appointment at that time. She was given a receipt for the shot on which the name "Lincoln Towers Medical Doctors’ Offices” appeared. On Monday or Tuesday, after the abortion, plaintiff called and made an appointment for a follow-up visit two Saturdays from the date on which she had the procedure done (i.e., for January 23). However, the second week after the abortion she experienced cramps and took Tylenol. On January 16, 1982 the Lincoln facility received a pathology report which suggested the possibility she was still pregnant. While a notation on the pathology report indicated the plaintiff had been called about the results and told to return to the center for a follow-up, plaintiff testified she never received any such call. In fact, she rescheduled her January 23, 1982 appointment for the following Saturday because a snowstorm had been predicted for the 23rd.

At the beginning of the third week after the abortion, plaintiff experienced additional cramps which became steadily worse until she had to leave work. She called the Lincoln facility on January 28, 1982 and was instructed to return that day. She requested an appointment for the following day but when the cramps grew even worse plaintiff asked her boyfriend to take her to the hospital in New Jersey. While in the hospital she experienced even more severe cramps and because she felt "pressure” went into the ladies’ room. While on the toilet, plaintiff suffered a spontaneous miscarriage and delivered a 4 Vi-inch fetus into the toilet. She testified she had looked down and saw her fetus, a baby boy hanging from her and became hysterical and started to scream. She was rushed with the fetus, still attached to the umbilical cord, to an examination table where a doctor delivered the placenta. Plaintiff remained in the hospital for about 2 or 3 days.

Plaintiff alleged she suffered posttraumatic depression, nightmares and sleeplessness. She also became withdrawn and was reluctant to resume normal intimate relations with men for a substantial period of time. Further, she visited a psychiatrist, one Dr. Gregorius, who testified as to his diagnosis that plaintiff still suffered from the emotional trauma.

Plaintiff sued Drs. Wyman Garrett and Stanley Bernstein who operates Lincoln’s Women’s Services as Stanley Bernstein doing business as Lincoln Women’s Services, individually. She also sued Bernstein doing business as Lincoln Women’s Services, and Lincoln Women’s Services. In addition, plaintiff joined Dr. Alan Morris who was charged with coordinating the operating schedules and overseeing the procedures performed at the facility as well as Lincoln Towers Medical Center and Bradford Medical Building Associates alleging that Lincoln Towers Medical Center and Bradford Medical Building Associates were entities related to Lincoln’s Women’s Services operated by Bernstein at the same location, the third floor of 1995 Broadway in Manhattan. Dr. Garrett defaulted at the commencement of the case and while Lincoln Towers Medical Center and Bradford Medical Building Associates, Inc., answered the complaint, their attorneys later withdrew and neither appeared at the trial.

Testimony elicited by plaintiff was that Dr. Stanley Bernstein, a urologist, took over the lease to almost 7,000 square feet of medical and office space located on the third floor at 1995 Broadway. He leased from its owner all of the medical equipment on the premises for $23,000 per month. He paid an additional $2,000 per month for 1,000 square feet of office space on the floor for his own personal use and then entered into an agreement with the landlord which gave him the exclusive right to provide any physician practicing on the premises of the third floor with “clerical and administrative” support services. Dr. Bernstein also filed certificates to do business under the names Lincoln Women’s Services and Lincoln Medical Practice. He advertised for abortions under these names. He also entered into an agreement with Dr. Alan Morris pursuant to which Dr. Morris was responsible for coordinating the abortion schedules. Doctors doing abortions could only use the procedure rooms with Dr. Bernstein’s approval and he and he alone reviewed the credentials of gynecologists or other physicians seeking to practice on the third floor. In addition to placing advertising for abortion services on the premises under the name Lincoln Medical Practice and Lincoln Women’s Services, Dr. Bernstein provided the abortion service operation through an entity he owned known as Lincoln Service Group, with administrative help. He hired receptionists, secretaries, and other medical support personnel and provided the operation with telephone facilities and other services as well. The entire third floor had only one switchboard managed by Dr. Bernstein’s employees and there was only one telephone number for all the offices on the floor. This was the telephone number used in the advertisements by Lincoln’s Women’s Services seeking abortion patients. Moneys were collected from abortion service patients by the employees of Dr. Bernstein and a portion of those moneys was allocated by Dr. Bernstein to the various persons performing abortions such as Dr. Morris and Dr. Garrett. Dr. Bernstein, in paying these doctors, would deduct from the fees charged patients, moneys to repay him for the individual doctor’s use of the medical office space, secretarial services, and anesthesiological services, and supplies and for advertising, leaving the individual abortion doctor with approximately $25 for each abortion performed by him. Usually, Dr. Garrett got paid in cash for only those abortions performed by him and billed Dr. Morris for his services. However, at times, Dr. Bernstein would give Dr. Garrett an envelope containing cash in payment for such services. There was a sign on the premises which read Lincoln Medical Practice. However, as each physician was granted permission to practice on the third floor, Dr. Bernstein would contact the landlord and request that that doctor’s name be listed on the building’s directory under the heading Lincoln Medical offices. There were more than 150 abortions per week performed at this facility.

After a jury verdict of $315,000 was returned in favor of the plaintiff, the IAS court granted a new trial on all issues unless the plaintiff agreed to accept the reduced amount of $125,000, the sum of $20,000 representing pain and suffering and $105,000 for plaintiff’s emotional distress.

Defendants contend that the award for physical pain and suffering must be dismissed because these injuries are a natural accompaniment of the childbirth process, citing Prado v Catholic Med. Center (145 AD2d 614). Prado sought damages because of a delay in performing a Caesarean section which resulted in a stillbirth. Prado, and the cases which hold likewise, deny recovery for pain naturally associated with the childbirth process (supra, at 615). Unlike the plaintiffs in those cases, the plaintiff herein did not receive treatment, however negligent, for pregnancy and childbirth. She was treated for a medical termination of pregnancy. Accordingly, the physical pains she suffered from the abortion or miscarriage, while they might be naturally associated with the childbirth process, most emphatically were not naturally associated with the abortion procedure for which she had contracted, and the lack of success of which, the jury determined, she had not been properly informed. To express it differently, the plaintiff’s injuries were not a natural accompaniment of her underlying condition or illness for which she was treated.

Defendants further assert that plaintiff’s claims for emotional distress must also be dismissed since plaintiff admits that this distress resulted from viewing the stillbirth of her fetus. Defendants contend that absent independent physical injury to the mother, she may not recover for emotional distress which arose from witnessing the birth of a deformed or stillborn baby, citing, inter alia, Tebbutt v Virostek (65 ). Once again, the defendants misinterpret the nature of plaintiff’s injuries and claims. Plaintiff, herein, alleged and proved physical injury distinct from any injury suffered by the fetus, unlike the facts in Tebbutt where the death of the fetus occurred one month before the stillbirth as a result of a negligently performed amniocentesis, and the court found the plaintiff alleged no physical injury distinct from that suffered by the fetus. Vaccaro v Squibb Corp. (52 NY2d 809), where a mother sought recovery for emotional injuries caused by harm done to the fetus of which she was unaware until the later birth, is also inapposite, since, there also, the mother did not allege independent injuries to herself, as plaintiff does herein. "Plaintiff does not seek to recover for consequential emotional harm caused by observing or learning of injury or death to a third person as did the plaintiffs in Tebbutt v Virostek (65 NY2d 931), Kennedy v McKesson Co. (58 NY2d 500), Becker v Schwartz (46 NY2d 401), Vaccaro v Squibb Corp. (52 NY2d 809); Howard v Lecher (42 NY2d 109) and Tobin v Grossman (24 NY2d 609). On the contrary, her mental anguish and depression are the direct result of defendants’ breach of a duty owed directly to her in giving her erroneous advice on which she affirmatively acted in deciding to have the abortion. The emotional distress for which she seeks recovery does not derive from what happened to the fetus; it derives from the psychological injury directly caused by her agreeing to an act which, as the jury found, was contrary to her firmly held beliefs. Defendants’ breach of duty was the precipitating and proximate cause of that injury.” (Martinez v Long Is. Jewish Hillside Med. Center, 70 NY2d 697, 699.)

Likewise in this case, plaintiff’s emotional distress does not derive so much as from what happened to the fetus, but rather from what happened to her in undergoing a spontaneous miscarriage. Further, as the jury found, her injuries were the direct result of the defendants’ negligence in failing to advise her that she could still be pregnant, thereby enabling her to obtain a timely second abortion. Accordingly, this is a malpractice action based on the failure to properly advise plaintiff of her condition which caused both her physical and emotional injuries. "That these decisions and actions involved an abortion does not, as defendants suggest, require us to regard the case as something it is not — i.e., an effort by plaintiff to assert a claim for damages on behalf of her unborn child for injuries done to it * * * or a claim for damages based on plaintiff’s emotional and psychological stress in witnessing and knowing of the injury to the fetus and its loss (see, Tebbutt v Virostek, supra). ” (Lynch v Bay Ridge Obstetrical & Gynecological Assocs., 72 NY2d 632, 636.)

The defendants further contend that the malpractice found by the jury was not the proximate cause of the injuries suffered by plaintiff, citing Koehler v Schwartz (48 NY2d 807). However, in that case, the plaintiff who was being treated for cancer, became pregnant and was advised to undergo an abortion, which she did. The procedure was unsuccessful and she gave birth to a healthy child. She brought a malpractice action alleging that she suffered emotional and psychic injuries from giving birth. The Court of Appeals found that there was no proof that the delay in notifying her of the failure of the abortion was an independent cause of her injuries, since the plaintiff had testified that she could not have undergone a second abortion. Here, on the other hand, there was proof submitted to the jury that had the fact that the abortion had been unsuccessful been communicated to the plaintiff, she would have sought appropriate medical treatment, i.e., a second abortion. Plaintiff had testified that she had discussed her pregnancy with her boyfriend and decided that she would be unable to rear a child.

Further, while the concept of proximate cause is circumscribed by policy considerations which limit the search for legal causes to place manageable limits upon the liability that flows from negligent conduct, there was enough evidence before the jury to establish a prima facie case generally showing that the negligence of Bernstein employees, in not advising plaintiff of the lab report indicating the abortion was unsuccessful, was a substantial cause of the events which produced the injury (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 314-315).

Defendant asserts that the jury’s finding that plaintiff was negligent in not returning on her own for a follow-up examination, but that this negligence was not a proximate cause of her injuries, was "inconsistent”. However, as alluded to by the Derdiarian court, there are degrees of negligence and degrees of proximate cause, circumscribed by policy considerations. The jury could well find the plaintiff negligent for not keeping a doctor’s appointment, or for not calling and making such an appointment when she felt a twinge or cramp. Compared to the negligence of the doctor or his staff which did not call to inform her the procedure was unsuccessful and to come back in, however, this negligence of the plaintiff was not the proximate cause of the injuries. The verdict, therefore, contrary to the assertion of defendant, was sensible, practical and consistent with the evidence.

We have examined the remaining contentions of defendants and plaintiffs and find them to be without merit.

Accordingly, the orders of the Supreme Court, New York County (Helen Freedman, J.), entered March 5, 1990, and June 7, 1990, which, inter alia, denied defendants-appellants’ motion to dismiss the plaintiff’s complaint, but granted the motion to set aside the verdict unless the parties stipulated to the sum of $125,000 as damages, should be affirmed, without costs or disbursements.