oman Catholic Diocese of Brooklyn, 225 A.D.2d 1105, 639 N.Y.S.2d 640 (4th Dep't 1996) (holding that a complaint alleging negligence of cemetery that interfered with proper disposal of family member's remains stated a cause of action for negligent infliction of emotional distress); Lauer v. City of New York, 171 Misc.2d 832, 656 N.Y.S.2d 93 (Queens Cnty.Sup.Ct.1997) (permitting recovery for emotional harm from medical examiner's failure to reveal the results of an autopsy concerning the death of a relative); or diagnosis of a life-threatening disease, Baker, 239 F.3d at 421–22 (holding that a cause of action lies for negligent infliction of emotional distress in the case of a negligent false positive result on an HIV test, as “the anguish of the positive test result is a ... direct and predictable emotional impact than the anxiety of having insufficient information”); Ornstein v. New York City Health and Hospitals Corp., 10 N.Y.3d 1, 852 N.Y.S.2d 1, 881 N.E.2d 1187, 1189 (2008) (same); Trapp v. Metz, 28 N.Y.2d 913, 323 N.Y.S.2d 166, 271 N.E.2d 697 (1971) (holding that a plaintiff may recover for heightened anxiety he suffered because a cancerous growth was not timely discovered and removed). Cf. Martinez v. Long Island Jewish Hillside Medical Ctr., 70 N.Y.2d 697, 518 N.Y.S.2d 955, 512 N.E.2d 538, 539 (1987) (holding that plaintiff had a cause of action for emotional distress where she believed that abortion was a sin, yet had an abortion after defendants negligently and erroneously advised her that her baby would be born with birth defects).
George van Setter for respondent. Order affirmed, without costs, in the following memorandum: Appellant was unable to demonstrate that her fear of contracting cancer was reasonable or attributable to respondent surgeon's alleged negligence in excising the wrong portion of her breast and permitting the suspect lump to remain, on which there was an issue of fact. Every physician she consulted assured appellant she did not have cancer and that there was no cause for concern. This case is distinguishable from those where the negligence of the physician either gave rise to a potentially cancerous condition or permitted a cancer to develop unchecked (see Trapp v. Metz, 28 N.Y.2d 913, revg. 35 A.D.2d 851, on dis. opn. at Appellate Division; Ferrara v. Galluchio, 5 N.Y.2d 16). Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON.
Having concluded that plaintiffs failed to meet their burden on the issue of physical injury caused by the alleged delay in diagnosis, we turn to the issue of the emotional harm claimed by plaintiff. Defendant contends that in the absence of physical harm due to the delay there can be no recovery for emotional harm, and there is at least one case which so holds (see, Vossler v Amin, 175 A.D.2d 570). The Court of Appeals, however, has long recognized that a malpractice victim can recover damages for mental anguish resulting from fear of cancer (see, Ferrara v Galluchio, 5 N.Y.2d 16), and the Court has extended that holding to a plaintiff's claim for damages based exclusively upon heightened anxiety because a cancerous growth was not timely discovered and excised (Trapp v Metz, 28 N.Y.2d 913, revg on dissenting mem below 35 A.D.2d 851). The relevant question in a case such as this one is not whether the emotional harm is accompanied by physical harm, but whether the patient's fear is reasonable and attributable to the physician's negligence (see, Winik v Jewish Hosp., 31 N.Y.2d 936). In other words, the psychic injury must be "genuine, substantial, and proximately caused by the defendant's conduct" (Howard v Lecher, 42 N.Y.2d 109, 111-112).
We add only that evidence concerning plaintiff Earl Wolf's increased risk of cancer was properly admitted. Plaintiff was entitled to recover damages for mental distress caused by his fear of cancer (see, Trapp v Metz, 28 N.Y.2d 913, revg on dissenting opn at 35 A.D.2d 851; Ferrara v Galluchio, 5 N.Y.2d 16, 18-19, 21-22, rearg denied 5 N.Y.2d 793; Rittenhouse v St. Regis Hotel Joint Venture, 149 Misc.2d 452, 454-456, mod on other grounds 180 A.D.2d 523).
Neither logic nor policy warrant an extension of the scope of duty owed to such a widening class of potential claimants. Indeed, the only cases permitting recovery for fear of contracting a noncontagious disease involved claims on behalf of the patients themselves, the victims of the malpractice alleged ( Ferrara v Galluchio, 5 N.Y.2d 16; see Trapp v Metz, 28 N.Y.2d 913, revg 35 A.D.2d 851). Opening our courts to the claims of third parties who fear the potential exposure to a contagious disease would escalate liability to all relatives and friends of the victim.
In April, 1975, plaintiff commenced this action to recover damages for psychic trauma, mental anguish and torture caused by (1) defendants' malpractice in providing the dye-light treatment, and (2) malpractice in failing to inform the plaintiff of the "danger and the risk of cancer." It is not claimed that the plaintiff has cancer; rather, plaintiff contends that as a result of the dye-light treatment he has developed a phobia that he will contract cancer, and it is for that alleged phobia that plaintiff now seeks to recover damages ( Ferrara v Galluchio, 5 N.Y.2d 16; Trapp v Metz, 28 N.Y.2d 913). Plaintiff's witnesses included the plaintiff himself; Dr. Rapp, a virologist; Dr. Savitsky, a psychiatrist; Dr. Reisch, a dermatologist; and Mr. Daniels, a friend and "counselor" to the plaintiff.
However, there was adequate evidence that defendant's incorrect diagnosis proximately caused plaintiff to suffer compensable emotional distress when she learned that removal of a cancerous tumor had been delayed for eight months. See Trapp v. Metz, 28 N.Y. 2d 913, 271 N.E.2d 697 (1971). There was also a jury issue presented on emotional distress premised on a factual dispute as to the necessity of the second operation for removal of the nerve.
This claim generally arises in the medical malpractice area, and does not rely on any physical injury, but rather is based upon heightened anxiety because disease was not timely discovered and treated. Trapp v Metz, 28 NY2d 913 (1971), revg. on dissenting mem, below 35 AD2d 851 (2d Dept. 1970). Although it appears that under current law a plaintiff can sue for the threat of future harm only if symptoms have become manifest (Pannicia Long Is. R.R. Co., 297 AD2d 366 [2d Dept. 2002]), and not for harm that has not been realized at all (Bossio v Fiorillo, 219 AD2d 836 [3d Dept. 1994]), lung and prostate cancer have been diagnosed.