| DeChico v Northern Westchester Hosp. Ctr. |
| 2010 NY Slip Op 04133 [73 AD3d 838] |
| May 11, 2010 |
| Appellate Division, Second Department |
| Maria DeChico, Respondent, v Northern WestchesterHospital Center et al., Appellants. |
—[*1] Garson DeCorato & Cohen, LLP, New York, N.Y. (Joshua R. Cohen, Brian M. Dunphy,Erin M. Hargis, and Andrew Garson of counsel), for appellants Women's Medical Association,PLLC, Ruth Tessler, and Annette Maffei. Kent, Hazzard, Wilson, Conroy, Verni & Freeman, LLP, White Plains, N.Y. (James C.Freeman of counsel), for respondent.
In an action to recover damages for medical malpractice, etc., the defendants NorthernWestchester Hospital Center and Francene Gallousis appeal, and the defendants Women'sMedical Association, PLLC, Ruth Tessler, and Annette Maffei separately appeal from an orderof the Supreme Court, Westchester County (Loehr, J.), entered March 11, 2009, which deniedtheir respective motions for summary judgment dismissing the complaint insofar as assertedagainst them.
Ordered that the order is reversed, on the law, with one bill of costs to the defendantsappearing separately and filing separate briefs, and the respective motions of the defendantsNorthern Westchester Hospital Center and Francene Gallousis, and the defendants Women'sMedical Association, PLLC, Ruth Tessler, and Annette Maffei for summary judgmentdismissing the complaint insofar as asserted against them are granted.
The plaintiff, Maria DeChico (hereinafter the mother), is the mother of a child, GianlucaDeChico (hereinafter the child), who was born on June 24, 2004. During her pregnancy with thechild, the mother received pre-natal care from the defendants Ruth Tessler and Annette Maffei,obstetricians-gynecologists associated with the defendant Women's Medical Association, PLLC(hereinafter the Medical Association). At approximately the 28th week of the pregnancy, anultrasound revealed a dilated ventricle in the brain of the fetus. Dr. Tessler referred the motherfor a more detailed ultrasound to be performed by the defendant Francene Gallousis, anobstetrician-gynecologist and specialist in maternal fetal medicine at the defendant NorthernWestchester Hospital Center. Dr. Gallousis performed an ultrasound at approximately the 29thweek of pregnancy, which indicated the presence of a unilateral ventriculmegaly, a swelling ordefect of one side of the ventricle of the brain. Dr. Gallousis subsequently performed furtherultrasounds, which confirmed that finding. She also referred the mother to a perinatologist todiscuss the care that the child would require after the birth. The mother continued to receive carefrom Tessler, Maffei, and other physicians at the Medical Association throughout the pregnancyand delivery. After birth, the child was diagnosed with schizencephaly, a rare and severecongenital brain defect.[*2]
The mother, individually and on behalf of the child,commenced this action, inter alia, to recover damages for the extraordinary costs of the child'smedical care. The mother alleged, among other things, that the defendants had departed from theapplicable standard of care in failing to fully advise her of the significance of the ultrasoundfindings, failing to order further tests, including a fetal MRI, and failing to advise her regardingpossible termination of the pregnancy. The defendants Northern Westchester Hospital Centerand Francene Gallousis moved, and the defendants Medical Association, Ruth Tessler, andAnnette Maffei separately moved, for summary judgment dismissing the complaint insofar asasserted against them.
The Supreme Court erred in denying the defendants' respective motions for summaryjudgment dismissing the complaint insofar as asserted against them. "[I]t is well settled that nocause of action may be maintained on behalf of an infant plaintiff for 'wrongful life,' i.e., that heor she would never have been born but for the negligence of the defendant" (Spano vBertocci, 299 AD2d 335, 337 [2002], quoting Alquijay v St. Luke's-Roosevelt Hosp.Ctr., 63 NY2d 978, 979 [1984]; see Becker v Schwartz, 46 NY2d 401 [1978]).Accordingly, the Supreme Court should have awarded summary judgment dismissing so much ofthe complaint as sought to assert a wrongful life cause of action on behalf of the child (seeBecker v Schwartz, 46 NY2d at 401).
Although a child may not maintain a wrongful life cause of action, a parent may, under somecircumstances, maintain a cause of action on his or her own behalf for the extraordinary costsincurred in raising a child with a disability (see Becker v Schwartz, 46 NY2d at411-412). In order to succeed on such a cause of action, which "sound[s] essentially innegligence or medical malpractice," a "plaintiff must demonstrate the existence of a duty, thebreach of which may be considered the proximate cause of the damages suffered by the injuredparty" (Becker v Schwartz, 46 NY2d at 410). Specifically, the plaintiff must establishthat malpractice by a physician deprived the parent of the opportunity to terminate the pregnancywithin the legally permissible time period or that the child would not have been conceived butfor the defendants' malpractice (see Becker v Schwartz, 46 NY2d at 410).
Here, the evidence established, as a matter of law, that any negligence on the part of thedefendants did not proximately cause the complained-of damages. The affidavits submitted bythe parties' various experts contained differing opinions as to, inter alia, whether additional testsshould have been performed after the April 21, 2004, ultrasound revealed the presence of adilated ventricle of the fetal brain. The mother did not allege that any affirmative action orinaction by the defendants caused or exacerbated the condition of the fetus. In addition, themother did not submit any evidence, and her expert physicians, an obstetrician-gynecologist anda radiologist, did not opine, that any further tests should have been performed prior to April 21,2004. Rather, her complaint is based solely upon the defendants' alleged failure to performfurther tests and to render appropriate advice after the April 21, 2004, ultrasound. It isundisputed that at the time of the April 21, 2004, ultrasound, the gestation period was 27 weeksand six days, plus or minus 18 days (i.e. at least 25 weeks). Pursuant to Penal Law §125.05, it is unlawful for a physician, pregnant woman, or other person to terminate a pregnancyafter the twenty-fourth week of gestation, unless necessary to preserve the life of the mother.Here, the mother did not allege, nor is there any evidence, that her life was jeopardized by thecontinuation of the pregnancy. Therefore, any negligence by the defendants in connection withtreatment, testing, or advice after the April 21, 2004, ultrasound cannot be said to haveproximately caused the complained-of injuries, namely, the continuation of the pregnancy andbirth of the child (see Becker v Schwartz, 46 NY2d at 410; Spano v Bertocci,299 AD2d at 337).
The mother's expert affidavits failed to raise a triable issue of fact as to whether thedefendant physicians had a duty to advise the mother as to the legality of late-term pregnancytermination in states other than New York (see generally Langan v St. Vincent's Hosp. of N.Y., 64 AD3d 632[2009]). Moreover, contrary to the mother's contention, the instant action does not involve thedeprivation of a federal constitutional right (see generally Planned Parenthood ofSoutheastern Pa. v Casey, 505 US 833, 846 [1992]). Under these circumstances, theSupreme Court should have awarded summary judgment dismissing the cause of action assertedindividually by the mother to recover the child's extraordinary medical costs.[*3]
The complaint also asserted a cause of action based onlack of informed consent. Pursuant to Public Health Law § 2805-d (2), the "right of actionto recover for medical . . . malpractice based on lack of informed consent is limitedto those cases involving either (a) non-emergency treatment, procedure or surgery, or (b) adiagnostic procedure which involved invasion or disruption of the integrity of the body." Here,the mother did not allege that the defendants failed to obtain her informed consent in connectionwith the performance of any affirmative treatment or testing involving a violation of her physicalintegrity. Consequently, the defendants established their prima facie entitlement to judgment as amatter of law with respect to the cause of action based on lack of informed consent, and themother failed to raise a triable issue of fact in opposition thereto (see Public Health Law§ 2805-d; Flanagan v CatskillRegional Med. Ctr., 65 AD3d 563, 566-567 [2009]; Schel v Roth, 242 AD2d697 [1997]). Therefore, the Supreme Court should have granted the defendants' respectivemotions for summary judgment dismissing the complaint insofar as asserted against them.Rivera, J.P., Florio, Miller and Austin, JJ., concur.