VASIU v. BERG (2021)

DECISION & ORDER

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Peter J. O'Donoghue, J.), entered July 19, 2017.  The order, insofar as appealed from, granted those branches of the separate motions of the defendants Robert Berg and Arcadia OB/GYN, P.C., and the defendant Peter Kratka which were for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, and those branches of the separate motions of the defendants Robert Berg and Arcadia OB/GYN, P.C., and the defendant Peter Kratka which were for summary judgment dismissing the complaint insofar as asserted against each of them are denied.

The plaintiffs, who are the parents of a severely disabled child, commenced this action against, among others, the defendants Robert Berg and Arcadia OB/GYN, P.C. (hereinafter Arcadia), and the defendant Peter Kratka, alleging that they committed medical malpractice in failing to properly diagnose the child's various medical conditions in utero and advise the plaintiffs of their options.  The plaintiffs seek to recover their pecuniary loss arising from the extraordinary costs of raising a child with severe disabilities.  Berg and Arcadia moved, and Kratka separately moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against each of them.  The Supreme Court, among other things, granted those branches of their motions.  The plaintiffs appeal.

Parents may maintain a cause of action on their own behalf for the extraordinary costs incurred in raising a child with a disability (see Becker v. Schwartz, 46 N.Y.2d 401, 411–413, 413 N.Y.S.2d 895, 386 N.E.2d 807;  Mayzel v. Moretti, 105 A.D.3d 816, 962 N.Y.S.2d 656;  DeChico v. Northern Westchester Hosp. Ctr., 73 A.D.3d 838, 840, 900 N.Y.S.2d 743).  “To succeed on such a cause of action, which ‘sound[s] essentially in negligence or medical malpractice,’ [a plaintiff] ‘must demonstrate the existence of a duty, the breach of which may be considered the proximate cause of the damages suffered by’ [the injured party]” (Mayzel v. Moretti, 105 A.D.3d at 817, 962 N.Y.S.2d 656, quoting Becker v. Schwartz, 46 N.Y.2d at 410, 413 N.Y.S.2d 895, 386 N.E.2d 807;  see B.F. v. Reproductive Medicine Assoc. of N.Y., LLP, 30 N.Y.3d 608, 614, 69 N.Y.S.3d 543, 92 N.E.3d 766).  “Specifically, the parents must establish that malpractice by a defendant physician deprived them of the opportunity to terminate the pregnancy within the legally permissible time period, or that the child would not have been conceived but for the defendant ‘s malpractice” (Mayzel v. Moretti, 105 A.D.3d at 817, 962 N.Y.S.2d 656;  see Becker v. Schwartz, 46 N.Y.2d at 410, 413 N.Y.S.2d 895, 386 N.E.2d 807;  DeChico v. Northern Westchester Hosp. Ctr., 73 A.D.3d at 840, 900 N.Y.S.2d 743).  “[T]he 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” (Mayzel v. Moretti, 105 A.D.3d at 817, 962 N.Y.S.2d 656;  see Mickens v. LaSala, 8 A.D.3d 453, 779 N.Y.S.2d 115).  “Since the plaintiffs' recovery is limited to their personal pecuniary loss, expenses covered by other sources such as private insurance or public programs are not recoverable” (Mayzel v. Moretti, 105 A.D.3d at 817, 962 N.Y.S.2d 656;  see Kubik v. Erhart, 78 A.D.3d 905, 906, 911 N.Y.S.2d 456;  Mickens v. LaSala, 8 A.D.3d 453, 779 N.Y.S.2d 115).

Contrary to the contention of Berg and Arcadia, they are not entitled to summary judgment dismissing the complaint insofar as asserted against them on the issue of liability.  Although the affidavit of their expert did demonstrate their prima facie entitlement to judgment as a matter of law on this issue, the affidavit of the plaintiffs' expert in response presented a credibility battle between the parties' experts, and “ ‘issues of credibility are [best] left to a jury for its resolution’ ” (Leto v. Feld, 131 A.D.3d 590, 592, 15 N.Y.S.3d 208, quoting Barbuto v. Winthrop Univ. Hosp., 305 A.D.2d 623, 624, 760 N.Y.S.2d 199;  see Stoves v. City of New York, 293 A.D.2d 666, 741 N.Y.S.2d 269;  Halkias v. Otolaryngology–Facial Plastic Surgery Assoc., 282 A.D.2d 650, 724 N.Y.S.2d 432).

The Supreme Court should also have denied those branches of the respective motions which sought summary judgment on the basis that there is no triable issue of fact with respect to the plaintiffs' claims of extraordinary expenses.  The record demonstrates a triable issue of fact as to whether the child's medical conditions caused the plaintiffs to incur extraordinary expenses, including the cost of child care above what the plaintiffs would have spent had their child been born without disabilities and the costs of medical care and equipment directly attributable to the child's disabilities which were not reimbursed by other sources (see Mayzel v. Moretti, 105 A.D.3d at 817, 962 N.Y.S.2d 656;  Kubik v. Erhart, 78 A.D.3d at 906, 911 N.Y.S.2d 456).

DILLON, J.P., LASALLE, BARROS and CONNOLLY, JJ., concur.