Albala v. City of New York

OPINION OF THE COURT Bloom, J. This case presents us with a novel and perplexing issue. We are here called upon to determine whether a tort, committed against the mother of a child yet unconceived, gives rise to a cause of action in favor of the child if, as is here claimed, that tort resulted in injury to the child during the period of gestation. On December 27, 1971, Ruth Albala, the mother of the infant plaintiff, underwent an abortion at Bellevue Hos [390] pital. During the procedure her uterus was perforated. In June, 1973 Ruth commenced an action for malpractice. Her husband, Bernard, sued for loss of consortium. In or about September, 1975 the infant plaintiff, Jeffrey, was conceived. After what was apparently a normal term pregnancy, Jeffrey was born on June 3,1976. In June, 1979 approximately three years after his birth and some seven years, six months after commission of the alleged tort upon Ruth, the malpractice suit was settled for $175,000. The settlement occurred during the course of the trial of that action. It is now contended that as a result of the perforation of Ruth’s uterus, Jeffrey was born brain damaged. Accordingly, this action was instituted on September 26,1978, almost seven years after the commission of the alleged act of malpractice and some two years, three months after the birth of Jeffrey. The complaint alleges five causes of action. The first two causes are on behalf of Jeffrey and allege the malpractice committed upon Ruth and the negligence of defendants in treating her, with resultant injury to Jeffrey. The third cause, also on behalf of Jeffrey, is bottomed upon the failure of defendants to inform Ruth of the risks and hazards of the treatment accorded her by reason of which the consent given by her to the procedures performed was an uninformed consent, with consequent injury to Jeffrey. The final two causes of action are for loss of the child’s services, society and companionship and for expenses incurred and to be incurred, including medical attention. One cause is alleged on behalf of each parent. Defendants moved for summary judgment. Special Term granted the motion, holding that no such action is cognizable under our law. We affirm. No case decided in this State deals precisely with the issue here raised. We must, therefore, turn to cases which inform by laying down guidelines. At the outset, we note that if the complaint sets forth a viable cause of action, we need not now concern ourselves with whether there was a timely filing of a notice of claim under section 50-e of the General Municipal Law and section 20 of the New York [391] City Health and Hospitals Corporation Act (L 1969, ch 1016, § 1, as amd) (Cohen v Pearl Riv. Union Free School Dist., 51 NY2d 256). Despite the explosive expansion of tort law in the recent past, we think it fair to say that none of the cases which removed a bar to suit, therefore recognized by law, created a new cause of action. “That no such claim has ever before been accepted by a court is not in itself an unscalable barrier. As claimant reminds us, our own court has in the last 15 years permitted suits to lie for wrongs which earlier decisions had found not suable—for instance, Wood v. Lancet (303 N. Y. 349); Bing v. Thunig (2 N Y 2d 656); Ferrara v. Galluchio (5 N Y 2d 16); Battalla v. State of New York (10 N Y 2d 237); Greenberg v. Lorenz (9 NY 2d 195); Goldberg v. Kollsman (12 N Y 2d 432). But in none of these did we declare that to be an actionable wrong which the law had found before to be no wrong at all—in other words, we did not in the instances cited create new causes of action. In each of those causes we decided that an earlier court-created immunity or exemption should no longer be provided” (Williams v State of New York, 18 NY2d 481, 483 [emphasis supplied]). Thus, our courts have recognized causes of action for injuries to a viable child, in utero, a cause which, prior thereto, had been held nonactionable (Woods v Lancet, 303 NY 349, supra; Kelly v Gregory, 282 App Div 542). The concept which granted immunity to hospitals in medical malpractice actions, bottomed on the theory that doctors and nurses, though salaried employees of the hospital, were independent contractors for whose acts the hospital was not liable (Schloendorff v Society of N. Y. Hosp., 211 NY 125) was overruled and liability has been imposed upon the hospital for both medical and administrative acts under the doctrine of respondeat superior (Bing v Thunig, 2 NY2d 656, supra). The right to damages resulting from tort has been expanded to include psychological injuries, even where no physical contact was involved (Battalla v State of New York, 10 NY2d 237, supra; Ferrara v Galluchio, 5 NY2d 16, supra); subject, however, to the limitation that recovery may not be had for such injuries when the wrong is committed against another (Tobin v Grossman, 24 NY2d 609). [392] The doctrine of privity, theretofore applicable to the implied warranties of merchantability and fitness for use, is no longer recognized (Greenberg v Lorenz, 9 NY2d 195, supra; Randy Knitwear v American Cyanamid Co., 11 NY2d 5; cf. Goldberg v Kollsman Instrument Corp., 12 NY2d 432, supra). Millington v Southeastern Elevator Co. (22 NY2d 498), did no more than eliminate the gender basis for denial to a wife of an action for loss of consortium, a right long possessed by a husband. More recently, the Court of Appeals refused to recognize a cause of action on behalf of a child born with polycystic kidney disease who was conceived following medical advice, allegedly incorrect, given to the parents of the child that danger of the disease reoccurring was “practically nil” (Park v Chessin, 46 NY2d 401, 407). That case, although denominated a “wrongful life” case, bears marked resemblance to the case at bar. There, Hetty Park gave birth to a baby afflicted with polycystic kidney disease. The child died five hours after birth. Thereafter, the Parks consulted with the obstetrician who had treated Mrs. Park during her first pregnancy to determine the likelihood of reoccurrence in a subsequent child. They were advised that the disease was not hereditary and the probability of conceiving a second child afflicted with the disease was substantially nonexistent. Based upon this information, the Parks exercised a conscious choice to seek conception of a second child. Subsequently, Hetty Park gave birth to a second baby. That child was also born with polycystic kidney disease and died within two and one-half years after her birth. The court held that although the law permitted assertion of a cause of action by the parents in their own right limited to a recovery of their pecuniary loss, no cause of action would lie on behalf of the deceased infant. While both the plurality and concurring opinions in Park discuss the issue of “wrongful life” in ethical and moral terms, the basic teaching of that case, like the basic teaching of Tobin (supra), reduces itself to the principle that a wrong committed against one which results in damage to another is not actionable by the other. As our brother Carro has noted in his dissent, there are three cases, all in other jurisdictions, which hold that action [393] will lie in favor of an infant for damages flowing from a tort committed upon the mother prior to conception (Renslow v Mennonite Hosp., 67 Ill 2d 348; Bergstreser v Mitchell, 577 F2d 22; Jorgensen v Meade Johnson Labs., 483 F2d 237). Two of these cases—Bergstreser and Jorgensen —were bottomed upon the speculation that the States involved—Missouri and Oklahoma—if and when called upon to decide the issue, would hold that such a right of action exists. The third case—Renslow—was decided by a sharply divided court. It is most interesting to note that both the Renslow and Bergstreser courts, in concluding as they did, relied, in part at least, on the Special Term holding in Park v Chessin (88 Misc 2d 222), a holding expressly repudiated by our Court of Appeals (Park v Chessin, 46 NY2d 401, supra). In these circumstances we are constrained to conclude, unless otherwise instructed by superior judicial authority or by the Legislature, that no cause of action lies on behalf of Jeffrey. As to the fourth and fifth causes of action set forth on behalf of Ruth and Bernard, they were necessarily a part of the malpractice action which was settled in June, 1979 during trial. Although clothed in a new theory and seeking augmented damages, all of the matters alleged in these two causes of action flowed from and were part of the wrong committed against Ruth in 1971. They were encompassed in the settlement reached and may not now be the subject of separate action. Accordingly, the order of the Supreme Court, New York County (Hughes, J.), entered April 8,1980, granting summary judgment to defendants is affirmed without costs.