Park v. Chessin

60 A.D.2d 80, 400 N.Y.S.2d 110, 1977 N.Y. App. Div. LEXIS 13966
CourtAppellate Division of the Supreme Court of the State of New York
DecidedDecember 11, 1977
StatusPublished
Cited by19 cases

This text of 60 A.D.2d 80 (Park v. Chessin) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Park v. Chessin, 60 A.D.2d 80, 400 N.Y.S.2d 110, 1977 N.Y. App. Div. LEXIS 13966 (N.Y. Ct. App. 1977).

Opinions

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 [83]*83entirety, 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 disre[84]*84gard” 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 [85]*85unwarranted 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.

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Bluebook (online)
60 A.D.2d 80, 400 N.Y.S.2d 110, 1977 N.Y. App. Div. LEXIS 13966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/park-v-chessin-nyappdiv-1977.