AND BEENA JOHN AS PARENTS AND NATURAL GUARDIANS OF AN INFANT AND AN INFANT v. WENDY CHUNG THE NEW YORK AND PRESBYTERIAN HOSPITAL NEW YORK PRESBYTERIAN COLUMBIA UNIVERSITY MEDICAL CENTER THE NEUROLOGICAL INSTITUTE NEW YORK PRESBYTERIAN MORGAN STANLEY CHILDREN HOSPITAL TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK MORIS ANGULO WINTHROP PEDIATRIC ASSOCIATES PC

Reset A A Font size: Print

Supreme Court, New York County, New York.

Stanley John AND BEENA JOHN AS PARENTS AND NATURAL GUARDIANS OF A.J., AN INFANT AND A.D.J., AN INFANT, Plaintiff, v. Darryl De Vivo, WENDY CHUNG, THE NEW YORK AND PRESBYTERIAN HOSPITAL, NEW YORK-PRESBYTERIAN/COLUMBIA UNIVERSITY MEDICAL CENTER, THE NEUROLOGICAL INSTITUTE, NEW YORK-PRESBYTERIAN MORGAN STANLEY CHILDREN'S HOSPITAL, TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, MORIS ANGULO, WINTHROP PEDIATRIC ASSOCIATES, PC, Defendant.

805256/2017

Decided: October 24, 2018

The following e-filed documents, listed by NYSCEF document number (Motion 001) 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37 were read on this motion to/for DISMISSAL.

This is Defendants', DARRYL C. De VIVO, M.D., WENDY CHUNG, M.D., THE NEW YORK PRESBYTERIAN HOSPITAL s/h/a "NEW-YORK-PRESBYTERIAN/COLOMBIA UNIVERSITY MEDICAL CENTER, THE NEUROLOGICAL INSTITUTE, NEW YORK-PRESBYTERIAN MORGAN STANLEY CHILDREN'S HOSPITAL and TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, motion, pursuant to CPLR 3211(a)(7), to dismiss Plaintiffs' causes of action on behalf of infant A.D.J. for failure to state a cause of action.

Plaintiffs bring this action in their representative capacity as parents of two children, A.J., born in 2007, and A.D.J., born in 2014.

On a motion to dismiss for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory. McKinney's CPLR 3211(a)(7). Endless Ocean LLC v. Twomey, Latham, Shea, Kelley, Dubin and Quartarro, 113 AD3d 587, 979 N.Y.S.2d 84 (N.Y.A.D. 2nd Dept.2014).

In the instant matter, the complaint alleges that Wendy Chung, M.D., a physician that specializes in genetics and Defendant, Darryl De Vivo, M.D., a physician specializing in pediatric neurology, failed to properly diagnosis, Plaintiff, A.J. with Hunter's Syndrome. Rather, the Defendants diagnosed A.J. with Duplication 7Q11.23 Syndrome and that A.J. was treated for the Duplication 7Q11.23 Syndrome, not his true condition of Hunter's Syndrome.

Dr. De Vivo continued the care of A.J. from on or about October 24, 2008, up to July 7, 2016. Dr. Chung cared for A.J. from on or about January 2009 until September 30, 2010.

Plaintiffs claim that at all times A.J. was being treated improperly for Duplication 7Q11.23 Syndrome, which he did not have, and not for Hunter's Syndrome, which was the genetic condition ultimately diagnosed.

Furthermore, Plaintiffs' parents, it is claimed, relied upon the misdiagnosis, care, treatment and advice of the Defendant doctors that future children would not be at risk for the genetic syndrome Duplication 7Q11.23.

A.D.J. was born in 2014 and the continued misdiagnosis of Duplication 7Q11.23 Syndrome for A.J. was utilized in A.D.J.'s care and treatment as well.

On or about May 20, 2016, A.J. was diagnosed with Hunter's Syndrome and A.D.J. was diagnosed on or about July 26, 2016, with Hunter's Syndrome.

The essence of the complaint at bar concerning A.D.J. is that A.D.J. was treated for Duplication 7Q11.23 Syndrome for two (2) years and that that treatment for the wrong genetic disorder caused him significant pain and suffering.

Upon oral argument, Plaintiffs' attorney and Defendants' attorneys all agreed that A.J. could maintain a cause of action against Defendants and that the parents' case was time barred.

It is also undisputed that Defendants, Dr. De Vivo and Dr. Chung, never had a patient- physician relationship with Plaintiff, A.D.J., only Plaintiff, A.J. Plaintiffs' Bill of Particulars delineates the lack of a physician's duty to A.D.J. who was not even conceived at the time of the medical treatment at issue.

The instant matter is whether a cause of action may be maintained by A.D.J., who had not been cared or treated by Defendants, but who was not treated properly for two (2) years due to Defendants alleged misdiagnosis of A.D.J.'s older brother A.J. It is also clear that this is not a claim for wrongful life, but for pain and suffering of A.D.J. due to improper treatment based upon a misdiagnosis of A.J.

Initially, Defendants' argue that a physician's duty can only arise from a physician-patient relationship with only very limited exceptions. Defendants argue that those limited exceptions do not apply to the case at bar.

"Generally, a doctor only owes a duty of care to his or her patient. [Courts] have been reluctant to expand a doctor's duty of care to a patient to encompass nonpatients. A critical concern underlying this reluctance is the danger that a recognition of a duty would render doctors liable to a prohibitive number of possible plaintiffs." McNulty v. City of New York, 100 NY2d 227, 792 N.E.2d 162, (2003).

"While moral and logical judgments are significant components of the analysis, [Courts] are also bound to consider the larger social consequences of our decisions and to tailor our notion of duty so that the legal consequences of wrongs are limited to a controllable degree." Eiseman v. State, 70 NY2d 175, 511 N.E.2d 1128 (1987).

An example of a case where duty was extended beyond the physician-patient relationship is Tenuto v. Lederle Labs., Div. of Am. Cyanamid Co., 90 NY2d 606, 687 N.E.2d 1300 (1997). In Tenuto, a doctor was found liable to the father of an infant who received an oral polio vaccine from the doctor.

At the time of the oral polio vaccine, the infant patient was five months old. Oral polio vaccines are associated with certain unique risks. In particular, "on a rare but statistically predictable basis, the live viruses lodging in the infant recipient's gastrointestinal tract may grow and revert to virulent form. When those wild viruses are later discharged from the infant's bowel in excretion or from the mouth in saliva, contact with the feces or saliva by the child's adult caretakers may result in infection and, in the case of vulnerable adults (i.e., unvaccinated or where immunization has weakened over time), may result in paralytic polio." Id.

In the Tenuto case, the Plaintiffs alleged that the doctor knew the infant's father was about to undergo elective surgery. The doctor never inquired whether the father had been vaccinated and failed to warn about the associated risk given the surgical wounds which would result from the surgery. The father was thereafter exposed and contracted polio, which rendered him a permanent paraplegic.

In determining liability, the Court stated that a "well-established predicate for extending a physician's duty of care to third parties is when the service performed on behalf of the patient necessarily implicates protection of household members or other identified persons foreseeably at risk because of a relationship with the patient, whom the doctor knows or should know may suffer harm by relying on prudent performance of that medical service." Id.

The Court was very clear that its holding in Tenuto was to be construed extremely narrowly. The "existence of a special relationship sufficient to supply the predicate for extending the duty to warn and advise plaintiffs of their peril and the need to employ precautions is especially pointed where, as here, the physician is a pediatrician engaged by the parents to provide medical services to their infant, and whose services, by necessity, require advising the patient's parents. Thus, the special relationship factor is triangulated here, involving interconnections of reliance running directly between plaintiffs and [the doctor], and indirectly from their status and responsibility as the primary caretakers of his infant patient." Id.

The Court also noted that governmental health officials had recommended informing consumers of the specific risk for almost a decade prior to the vaccine in question being administered and the vaccine's manufacturer as well as the Physician's Desk reference both recommended informing parents of the risks so that suitable precautions could be taken.

In contrast to the Tenuto case is McNulty v. City of New York. In McNulty, the Plaintiff was a friend of a patient brought to the emergency room for symptoms later determined to be meningitis. Plaintiff asked several doctors at the hospital who were treating the patient whether she needed to be treated as well, having been in close contact with the patient prior to their being admitted. Plaintiff alleged that all of the doctors said she did not need to be treated. Plaintiff eventually contracted meningitis.

The Court did not find a duty to Plaintiff on the part of the Defendant doctors. The Court made particular note of "the fact that [P]laintiff's illness did not arise as a result of the doctors' treatment of [Plaintiff and], up until the time that [P]laintiff allegedly approached the doctors, they had never met her. Unlike Tenuto where the parents had hired the doctor and relied exclusively on his medical advice, [P]laintiff approached several doctors whom she came into contact with, not including her personal doctor, regarding her concerns of having been in contact with someone diagnosed with meningitis." Supra McNulty v. City of New York, 100 NY2d 227, 792 N.E.2d 162, (2003).

The lack of a physician-patient relationship was a key point in the Court's determination that there was no duty.

The present case does not fit the extremely narrow exception for extending a doctor's duty beyond the strict confines of a physician-patient relationship.

Defendants' second argument in favor of dismissal is that New York does not recognize a cause of action on behalf of an infant not yet conceived at the time of the alleged negligence.

Courts do recognize causes of action on behalf of infants conceived, but not yet born at the time of an alleged tort. "[A]t the time the tort is committed there are two identifiable beings within the zone of danger each of whom is owed a duty independent of the other and each of whom may be directly injured." Albala v. City of New York, 54 NY2d 269, 429 N.E.2d 786 (1981).

In the Albala case, mother Plaintiff's uterus was perforated during the course of an abortion. The infant Plaintiff was conceived sometime after the abortion. The claim made on behalf of the infant Plaintiff was that he suffered brain damage as a result of the perforated uterus.

The Court made a clear distinction between cases where alleged pre-conception negligence resulted in injury to the later conceived child and cases where the alleged pre-conception negligence did not cause the injury, but was relied upon in the decision to conceive a child who Plaintiffs allege would not have been conceived but for the alleged negligence.

"[A] cause of action for wrongful life demands a calculation of damages dependent upon a comparison between the Hobson's choice of life in an impaired state and nonexistence. This comparison the law is not equipped to make." Id.

The Albala Court reasoned that the foreseeability of the mother Plaintiff conceiving another child "alone is not the hallmark of legal duty for if foreseeability were the sole test [Courts] could not logically confine the extension of liability." Id.

Defendants in the case at bar are correct in their assertion that New York does not recognize a cause of action on behalf of an infant not yet conceived at the time of the alleged negligence under the circumstances of the case.

Defendants' third argument is a corollary of their second. As stated in the Albala case cited above, New York does not recognize a cause of action for wrongful life on behalf of infant plaintiffs. Courts can decide cases where the allegation is a life diminished from what it would otherwise have been but for the alleged negligence. A case where the allegation is that there would be a life diminished irrespective of the alleged negligence as measured against never having lived at all is not a matter courts can decide. Id.

"The remedy afforded an injured party in negligence is designed to place that party in the position he would have occupied but for the negligence of the defendant." Becker v. Schwartz, 46 NY2d 401, 386 N.E.2d 807 (1978). How can Courts afford this remedy when the position that would have been occupied is to have never existed at all?

The Defendants' final argument is unrelated to the cause of action that they seek to dismiss, but is a recognition that a cause of action does exist on behalf of the parents. However, Defendants state, and Plaintiffs do not dispute, that the statute of limitations bars that cause of action.

"An action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness." NY CPLR 214-a.

"The cause of action permitting parents to recover the extraordinary expenses incurred to care for a disabled infant who, but for a physician's negligent failure to detect or advise on the risks of impairment, would not have been born, accrues upon the birth of the child." B.F. v. Reprod. Med. Assocs. of New York, LLP, 30 NY3d 608, 92 N.E.3d 766 (2017), reargument denied, 31 NY3d 991, 97 N.E.3d 397 (2018), and reargument denied, 31 NY3d 991, 97 N.E.3d 398 (2018).

A.D.J. was born in October 2014. Plaintiffs commenced this action in July 2017, three months beyond the expiration of the statute of limitations for the parents to maintain a cause of action.

"In the context of a CPLR 3211 motion to dismiss, the pleadings are necessarily afforded a liberal construction. Indeed, we accord [P]laintiffs the benefit of every possible favorable inference." Goshen v. Mut. Life Ins. Co. of New York, 98 NY2d 314, 774 N.E.2d 1190 (2002).

"For the purposes of our review, limited as it is to an evaluation of the sufficiency of plaintiffs' complaints, their allegations must be assumed to be true. Accordingly, we accept, without expressing any opinion as to [D]efendants' liability, each of [P]laintiffs' allegations: to wit, that [D]efendants failed to inform [P]laintiffs accurately of the risks involved in their pregnanc[y] and, that had they been accurately informed, [P]laintiffs would have chosen not to conceive." Becker v. Schwartz, 46 NY2d 401, 386 N.E.2d 807 (1978).

"A child is not entitled to damages based upon a claim that had defendants properly carried out their duty, the child would not have been brought into existence." Nieves v. Montefiore Med. Ctr., 305 AD2d 161, 760 N.Y.S.2d 419 (N.Y.A.D. 1st Dept. 2003).

Nieves is a case where the plaintiff mother suffered from a genetic disorder that made her infertile. Defendants performed in -vitro fertilization on the plaintiff mother, despite such treatment being extremely rare for women suffering the genetic disorder. The in-vitro fertilization was successful, however the plaintiff mother suffered an aortic dissection several months into the pregnancy. The aortic dissection necessitated a premature delivery which resulted in the death of the plaintiff mother and severe brain damage and neurological issues for the infant plaintiff. Despite the fact that it was contraindicated for plaintiff mother to undergo in- vitro fertilization because of the danger of precisely what occurred, the Court dismissed the infant plaintiff's claims for wrongful life because New York does not recognize such a cause of action on behalf of infants. Id.

Moreover, the Appellate Division, First Department proferred that the allegations of failing to recommend and advise the mother of the risks attendant with pregnancy when the mother has a genetic condition known as Turner's Syndrome, are causes of action to be maintained by the mother, not the child. Id.

This Court recognizes that the issues in this matter are at the forefront of medical treatment. Scientific breakthroughs in the field of genetic research are increasing exponentially, allowing medical professionals to learn more and more about humans yet unborn. As humanity approaches the threshold between making calculations regarding the genetics of individuals not yet conceived and altering those same genetics, the law must keep pace. The legislature is the proper forum where "when faced with a novel cause of action sentiment [can] be put aside [so that the law can] establish the rules ascribing liability in a manner which avoids the drawing of artificial and arbitrary boundaries." Supra, Albala v. City of New York.

Given the complexity and emotional difficulty of these cases, as well as the inconsistency in conclusions across jurisdictions, it is the legislature that is the proper forum for these issues to be explored in a deliberative fashion and a framework crafted divorced from the emotionality of individual cases.

Defendants have established that New York does not recognize a cause of action based on the allegations made on behalf of infant A.D.J.

Accordingly, it is

ORDERED that the motion to dismiss is granted and the cause of action on behalf of infant A.D.J. only is dismissed; and it is further

ORDERED that Defendants are directed to serve an answer to the complaint within 20 days after service of a copy of this order with notice of entry; and it is further

ORDERED that counsel are directed to appear for a conference in Room 422, 60 Centre Street, New York, New York, on December 5, 2018, at 2:15 PM.

DATE October 24, 2018

Judith N. McMahon, J.

Judith N. McMahon, J.