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Perry-Rogers v. Obasaju

Appellate Division of the Supreme Court of New York, First Department
Apr 5, 2001
282 A.D.2d 231 (N.Y. App. Div. 2001)

Summary

permitting recovery for emotional harm where “it was foreseeable that the information that defendants had mistakenly implanted plaintiffs' embryos in a person whom they would not identify, which information was not conveyed until after such person had become pregnant, would cause plaintiffs emotional distress over the possibility that the child that they wanted so desperately, ... might be born to someone else and that they might never know his or her fate” and “plaintiffs' medical affidavits attest [ed] to objective manifestations of their emotional trauma”

Summary of this case from Vumbaca v. Terminal One Grp. Ass'n L.P.

Opinion

April 5, 2001.

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered March 7, 2000, which, in an action arising out of defendants' mistaken implantation of plaintiffs' embryo into the uterus of another woman (see, 276 A.D.2d 67, 715 N.Y.S.2d 19), insofar as appealed from, denied defendants-appellants' motions pursuant to CPLR 3211(a)(7) to dismiss plaintiffs' cause of action for medical malpractice, unanimously affirmed, with one bill of costs.

Rudolph Silas, for plaintiffs-respondents.

Michael N. Romano, for defendants-appellants.

Before: Nardelli, J.P., Tom, Ellerin, Lerner, Rubin, JJ.


We reject defendants' argument that plaintiffs ' malpractice claim must be dismissed since it seeks to recover only for emotional harm caused by the creation of human life (citing, inter alia,O'Toole v. Greenberg, 64 N.Y.2d 427; Becker v. Schwartz, 46 N.Y.2d 401). Plaintiffs do not seek damages for the emotional harm caused by the birth of a sick or unplanned healthy child, and would not otherwise have the court calculate the difference between existence and nonexistence. Rather, plaintiffs seek damages for the emotional harm caused by their having been deprived of the opportunity of experiencing pregnancy, prenatal bonding and the birth of their child, and by their separation from the child for more than four months after his birth (cf., Lynch v. Bay Ridge Obstetrical Gynecological Assocs., 72 N.Y.2d 632). Damages for emotional harm can be recovered even in the absence of physical injury "when there is a duty owed by defendant to plaintiff, [and a] breach of that duty result[s] directly in emotional harm" (Kennedy v. McKesson Co., 58 N.Y.2d 500, 504). There is no requirement that the plaintiff must be in fear of his or her own physical safety (see, Johnson v. State of New York, 37 N.Y.2d 378;Topor v. State of New York, 176 Misc.2d 177, 180). However, "a plaintiff must produce evidence sufficient to guarantee the genuineness of the claim" (Kaufman v. Physical Measurements, 2 07 A.D.2d 595, 596), such as "contemporaneous or consequential physical harm", which is "thought to provide an index of reliability otherwise absent in a claim for psychological trauma with only psychological consequences" (Johnson v. State of New York, supra, at 381). Here, it was foreseeable that the information that defendants had mistakenly implanted plaintiffs' embryos in a person whom they would not identify, which information was not conveyed until after such person had become pregnant, would cause plaintiffs emotional distress over the possibility that the child that they wanted so desperately, as evidenced by their undertaking the rigors of in vitro fertilization, might be born to someone else and that they might never know his or her fate. These circumstances, together with plaintiffs' medical affidavits attesting to objective manifestations of their emotional trauma, create a "guarantee of genuineness" that makes plaintiffs' claim for emotional distress viable (cf., Johnson v. State of New York,supra). Johnson v. Jamaica Hosp. ( 62 N.Y.2d 523) is distinguishable in that it turned on the absence of a direct duty owing to the parents of a newborn who was abducted from the hospital. Creed v. United Hosp. ( 190 A.D.2d 489 [2d Dept]) is also distinguishable in that there the plaintiff failed to adduce any evidence of physical injury "however minimal";. We have considered and rejected defendant-appellants' other arguments.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

Perry-Rogers v. Obasaju

Appellate Division of the Supreme Court of New York, First Department
Apr 5, 2001
282 A.D.2d 231 (N.Y. App. Div. 2001)

permitting recovery for emotional harm where “it was foreseeable that the information that defendants had mistakenly implanted plaintiffs' embryos in a person whom they would not identify, which information was not conveyed until after such person had become pregnant, would cause plaintiffs emotional distress over the possibility that the child that they wanted so desperately, ... might be born to someone else and that they might never know his or her fate” and “plaintiffs' medical affidavits attest [ed] to objective manifestations of their emotional trauma”

Summary of this case from Vumbaca v. Terminal One Grp. Ass'n L.P.

offering plaintiff's "contemporaneous or consequential physical harm" as only example of way for plaintiff to substantiate claim for solely psychological harm

Summary of this case from Luna v. American Airlines

In Perry-Rogers v. Obasaju, 282 A.D.2d 231, 723 N.Y.S.2d 28 (1st Dep't 2001), the Appellate Division, applying New York law, held that a plaintiff who suffered emotional distress as the result of a doctor's negligent implantation of her embryo in another woman could recover for her emotional injuries absent physical harm.

Summary of this case from In re Rezulin Products Liability Litigation

In Perry-Rogers v. Obasaju, 282 A.D.2d 231, 723 N.Y.S.2d 28, 29 (2001), the plaintiffs sought malpractice damages for the emotional distress arising from the defendant's mistaken implantation of their embryos into another woman's uterus, which resulted in a child being born and separated from them for four months after birth.

Summary of this case from Jeter v. Mayo Clinic Arizona

In Perry-Rogers, the First Department denied defendants' motion to dismiss the complaint for failure to state a cause of action, holding that the plaintiffs had stated a claim for emotional harm "caused by their having been deprived of the opportunity of experiencing the pregnancy, prenatal bonding and the birth of their child, and by their separation from the child for more than four months after his birth."

Summary of this case from Andrews v. Keltz
Case details for

Perry-Rogers v. Obasaju

Case Details

Full title:DEBORAH PERRY-ROGERS, et al., Plaintiffs-Respondents v. DR. OBASAJU, et…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 5, 2001

Citations

282 A.D.2d 231 (N.Y. App. Div. 2001)
723 N.Y.S.2d 28

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