Kroupa v. SouthAmpton Hospital

In an action to recover damages for medical malpractice, etc., plaintiff Bernard Kroupa, the father of the infant plaintiff, appeals from an order of the Supreme Court, Suffolk County, entered January 8, 1975, which denied his motion to dismiss the counterclaim for indemnity asserted in defendant’s amended answer. Order reversed, with $20 costs and disbursements, motion granted, and counterclaim dismissed. 927 The malpractice resulting in the infant plaintiffs injuries is alleged to have been defendant’s failure to properly diagnose the illness from which he was suffering when he was brought to the emergency room of the defendant hospital on May 7, 1972 suffering violent stomach pains and nausea. It is further alleged that, as a result of that negligence, and defendant’s further negligence in discharging him from the hospital on that day, he suffered, among other serious injuries, a ruptured appendix requiring his readmission to the defendant hospital in a critical condition on May 17, 1972. Defendant, in its amended answer, has alleged in a counterclaim against plaintiff Bernard Kroupa, that he is barred from any recovery because he sought no medical aid for the infant plaintiff from May 7, 1972 until May 17, 1972, when the infant plaintiff was readmitted to the defendant hospital. Further, defendant requests, in the event it is found negligent, that it be indemnified by plaintiff Bernard Kroupa. Even if. Bernard Kroupa did not properly exercise his parental discretion in failing to seek medical aid for the infant plaintiff after defendant discharged him from its hospital on May 7, 1972 and until defendant readmitted him on May 17, 1972, there is no recognizable tort action which the infant has against his father which defendant may assert as a bar to its liability or as a basis for indemnification from plaintiff Bernard Kroupa on the authority of Dole v Dow Chem. Co. (30 NY2d 143). (Holodook v Spencer, 36 NY2d 35, 44, 51; Ryan v Fahey, 43 AD2d 429, 435, affd 36 NY2d 35, 51; Lastowski v Norge Coin-O-Matic, 44 AD2d 127, 133.) Hopkins, Acting P. J., Martuscello, Margett, Christ and Munder, JJ., concur.