WEED v. MEYERS (1998)

These medical malpractice actions were commenced by plaintiffs, individually and as parents of their two infant children, to recover damages allegedly resulting from the failure of Robert A. Smallman, M.D. (defendant), to warn of the risk that a child born to plaintiff James Weed (father) could develop retinoblastoma, a hereditary form of eye cancer.   Defendant, an ophthalmologist, treated the father for retinoblastoma in 1966 and continued to see the father periodically for routine eye examinations until August 1990.   The children, born in August 1989 and December 1990, were each diagnosed with retinoblastoma.   The complaints seek damages for injury to the children, emotional and psychological harm to the father and pecuniary expenses incurred for the care and treatment of the children.

 Supreme Court properly granted the motions of defendant for summary judgment dismissing the complaints against him.   The causes of action on behalf of the children cannot be maintained against defendant based upon his alleged failure to provide genetic counseling to the father (see, Becker v. Schwartz, 46 N.Y.2d 401, 411, 413 N.Y.S.2d 895, 386 N.E.2d 807;  Keselman v. Kingsboro Med. Group, 156 A.D.2d 334, 335, 548 N.Y.S.2d 287, lv. dismissed 76 N.Y.2d 845, 560 N.Y.S.2d 129, 559 N.E.2d 1288).   Further, the children were not identifiable beings within the zone of danger when the alleged malpractice was committed, and defendant owed no duty to them independent of the duty owed to their father (see, Albala v. City of New York, 54 N.Y.2d 269, 272, 445 N.Y.S.2d 108, 429 N.E.2d 786;  cf., Tenuto v. Lederle Labs., Div. of Am. Cyanamid Co., 90 N.Y.2d 606, 614, 665 N.Y.S.2d 17, 687 N.E.2d 1300).  “In the absence of duty, there is no breach and therefore no liability” (De Angelis v. Lutheran Med. Ctr., 84 A.D.2d 17, 22, 445 N.Y.S.2d 188, affd. 58 N.Y.2d 1053, 462 N.Y.S.2d 626, 449 N.E.2d 406;  see, Moore v. Shah, 90 A.D.2d 389, 391, 458 N.Y.S.2d 33).

 Contrary to the contention of plaintiffs, their derivative causes of action did not accrue upon the birth of the children but on the date of the alleged malpractice (see, Jorge v. New York City Health & Hosps. Corp., 79 N.Y.2d 905, 906, 581 N.Y.S.2d 654, 590 N.E.2d 239;  cf., LaBello v. Albany Med. Ctr. Hosp., 85 N.Y.2d 701, 704, 628 N.Y.S.2d 40, 651 N.E.2d 908).   Because the alleged malpractice occurred more than 2 1/212 years prior to the commencement of the actions, the derivative causes of action are time-barred (see, CPLR 214-a).   Finally, the father may not recover damages for emotional injuries he allegedly sustained as the result of defendant's failure to warn him of the risk that his children could inherit retinoblastoma (see, Vaccaro v. Squibb Corp., 52 N.Y.2d 809, 436 N.Y.S.2d 871, 418 N.E.2d 386;   Becker v. Schwartz, supra, at 413, 413 N.Y.S.2d 895, 386 N.E.2d 807;  Howard v. Lecher, 42 N.Y.2d 109, 112, 397 N.Y.S.2d 363, 366 N.E.2d 64).

Order unanimously affirmed without costs.

MEMORANDUM: