GRECO v. SALDANHA (1999)

In this action by plaintiff to recover damages for alleged medical malpractice, defendants Anne L.D. Saldanha, M.D., and Niagara Medical Associates, P.C., appeal from an order denying their motion to strike that portion of plaintiff's bill of particulars asserting a claim for loss of childbearing capacity and attendant emotional and mental injuries, and to preclude plaintiff from adducing evidence in support of that claim.

 “It is well settled that there may be no recovery ‘for the loss of offspring, as such’ ” (Villa v. Marciano, 167 A.D.2d 828, 829, 561 N.Y.S.2d 938, quoting Endresz v. Friedberg, 24 N.Y.2d 478, 488, 301 N.Y.S.2d 65, 248 N.E.2d 901;  see, Hahn v. Taefi, 115 A.D.2d 946, 947, 497 N.Y.S.2d 522).  “Thus, plaintiff may not recover for the effect of her alleged sterility in depriving her of children or of their companionship” (Villa v. Marciano, supra, at 829, 561 N.Y.S.2d 938;  see, Hahn v. Taefi, supra, at 947, 497 N.Y.S.2d 522).  “Recovery may be had, however, for physical and mental injuries, including emotional distress, suffered by plaintiff as a consequence of defendants' breach of duty” (Villa v. Marciano, supra, at 829, 561 N.Y.S.2d 938;  see, Tebbutt v. Virostek, 65 N.Y.2d 931, 493 N.Y.S.2d 1010, 483 N.E.2d 1142;  Hahn v. Taefi, supra, at 947, 497 N.Y.S.2d 522).  “Consequently, if plaintiff's alleged sterile condition resulted from injuries that she suffered as a consequence of defendants' malpractice, she may recover not only for the physical injuries inflicted but also for the mental and emotional distress attending those injuries” (Villa v. Marciano, supra, at 829, 561 N.Y.S.2d 938;  see, Hahn v. Taefi, supra, at 947, 497 N.Y.S.2d 522).

Order unanimously affirmed with costs.

MEMORANDUM: