| Mayzel v Moretti |
| 2013 NY Slip Op 02379 [105 AD3d 816] |
| April 10, 2013 |
| Appellate Division, Second Department |
| Meredith Mayzel et al., Respondents, v MichaelMoretti et al., Appellants, et al., Defendants. |
—[*1] Bartlett, McDonough & Monaghan, LLP (Kaufman Borgeest & Ryan LLP, Valhalla,N.Y. [Edward J. Guardaro, Jr., and Adonaid C. Medina], of counsel), for appellantRichmond University Medical Center. Rosenberg, Minc, Falkoff & Wolff, LLP, New York, N.Y. (SharonElmaleh-Schoenman of counsel), for respondents.
In an action to recover damages for medical malpractice, the defendant MichaelMoretti appeals, as limited by his brief, from so much of an order of the Supreme Court,Richmond County (McMahon, J.), dated November 4, 2011, as denied his second motionfor summary judgment dismissing the complaint insofar as asserted against him, and thedefendant Richmond University Medical Center separately appeals, as limited by itsbrief, from so much of the same order as denied that branch of its motion which was forsummary judgment dismissing so much of the complaint as alleged that it was vicariouslyliable for the alleged medical malpractice of the defendant Michael Moretti.
Ordered that the order is reversed insofar as appealed from, on the law, with one billof costs, the second motion of the defendant Michael Moretti for summary judgmentdismissing the complaint insofar as asserted against him is granted, and that branch of themotion of the defendant Richmond University Medical Center which was for summaryjudgment dismissing so much of the complaint as alleged that it was vicariously liable forthe alleged medical malpractice of the defendant Michael Moretti is granted.
The plaintiffs allege that the defendant Michael Moretti committed medicalmalpractice by failing to detect evidence of arterial septal defect on a sonogram of theirson performed in utero on June 16, 2008, and in failing to recommend further testingwhich would have revealed that he suffered from a form of Trisomy 9, a chromosomaldisorder which results in dysmorphisms in the skull and nervous system, and mentalretardation. The plaintiffs seek to recover certain allegedly extraordinary expenses theywill incur to meet their son's special needs.
Moretti and the defendant Richmond University Medical Center (hereinafter RUMC)[*2]separately moved for summary judgment dismissingthe complaint insofar as asserted against each of them. The Supreme Court, inter alia,denied Moretti's second motion, and denied that branch of RUMC's motion which wasfor summary judgment dismissing so much of the complaint as alleged that it wasvicariously liable for Moretti's alleged medical malpractice.
Although a child with a disability may not maintain a wrongful life cause of action,the child's parents may, under certain circumstances, maintain a cause of action on theirown behalf to recover the extraordinary costs incurred in raising the child (see Beckerv Schwartz, 46 NY2d 401, 411-412 [1978]; DeChico v Northern Westchester Hosp. Ctr., 73 AD3d838, 840 [2010]). To succeed on such a cause of action, which "sound[s] essentiallyin negligence or medical malpractice," the plaintiffs "must demonstrate the existence of aduty, the breach of which may be considered the proximate cause of the damagessuffered by" them (Becker v Schwartz, 46 NY2d at 410). Specifically, the parentsmust establish that malpractice by a defendant physician deprived them of theopportunity to terminate the pregnancy within the legally permissible time period, or thatthe child would not have been conceived but for the defendant's malpractice (seeid.; DeChico v Northern Westchester Hosp. Ctr., 73 AD3d at 840). Further,the claimed damages cannot be based on mere speculation, conjecture, or surmise, and,when sought in the form of extraordinary expenses related to caring for a disabled child,must be necessitated by and causally connected to the child's condition (see Mickens v LaSala, 8 AD3d453 [2004]). The "parents' 'legally cognizable injury' is 'the increased financialobligation arising from the extraordinary medical treatment rendered the child duringminority' " (Foote v AlbanyMed. Ctr. Hosp., 16 NY3d 211, 215 [2011], quoting Bani-Esraili vLerman, 69 NY2d 807, 808 [1987]). Since the parents' recovery is limited to theirpersonal pecuniary loss, expenses covered by other sources such as private insurance orpublic programs are not recoverable (see Kubik v Erhart, 78 AD3d 905 [2010]; Mickens vLaSala, 8 AD3d at 453).
Here, Moretti and RUMC satisfied their initial burden of demonstrating their primafacie entitlement to judgment as a matter of law by presenting affidavits from medicalexperts establishing that Moretti did not depart from the applicable standard of care ininterpreting the sonogram, and by tendering evidence in admissible form establishing thatthe plaintiffs' son's medical and developmental needs have been and continue to be paidfor by Medicaid at no cost to the plaintiffs (see Alvarez v Prospect Hosp., 68NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]; Mickens v LaSala, 8 AD3d at 453).
In opposition, the submission of the plaintiffs' expert physicians raised a triable issueof fact as to a departure by Moretti by establishing that he should have detected evidenceof arterial septal defect in the sonogram and recommended further tests, and that theseadditional tests would have revealed the plaintiffs' son's condition in utero, giving theplaintiffs an opportunity to terminate the pregnancy.
However, as to damages, the plaintiffs presented only conclusory evidence that theywill sustain a legally cognizable injury as a result of their son's birth. It is undisputed thatthe plaintiffs' son has been a resident of skilled nursing facilities since he was dischargedfrom the hospital following his birth, and Medicaid has paid and continues to pay for allof his care and treatment. The plaintiffs offered no proof that any of their son's medicalor developmental needs are not being appropriately met at the facility where he currentlyresides. Although the plaintiffs express a generalized desire for their son to live at home,they have taken no demonstrable steps toward preparing to remove him from his currentfacility, and have not formulated a definite plan to care for him at home. Among otherthings, the plaintiffs offered no evidence of the potential cost of renovating their home inFlorida to accommodate their son. In the absence of any evidence that the plaintiffsactually intend to care for their son at home in the future, the expert opinion of aregistered nurse, who prepared a "life care plan" for him, that the plaintiffs would incurextraordinary expenses in caring for their son if he were to live at home, was speculativeand conclusory and, thus, insufficient to raise a triable issue of fact in opposition to themotions (see Arredondo vValente, 94 AD3d 920 [2012]). The speculative nature of the life care planproffered by the plaintiffs' expert nurse distinguishes this case from Foote v AlbanyMed. Ctr. Hosp. (16 NY3d at 211). In Foote, where the severely disabledchild lived at home, the Court of Appeals concluded that the life care plan set forth bythe plaintiffs' expert was sufficient to demonstrate the existence of a triable issue of factas [*3]to whether the plaintiffs had or would incurextraordinary expenses in caring for their son because it raised an issue of fact as to"whether there is a difference between the resources provided by government programsand the extraordinary medical and other treatment or services necessary for the childduring minority" (id. at 215).
Accordingly, the Supreme Court should have granted Moretti's second motion forsummary judgment dismissing the complaint insofar as asserted against him, and thatbranch of RUMC's motion which was for summary judgment dismissing so much of thecomplaint as alleged that RUMC was vicariously liable for Moretti's alleged medicalmalpractice. Mastro, J.P., Austin, Cohen and Miller, JJ., concur.