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Santos v. St. Vincent's Hospital and Medical Center of New York2/24/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Pursuant to CPLR 3025(b), plaintiffs Jose Santos ("Mr. Santos"), as Administrator of the Estate of Daudi Santos ("Daudi"), deceased infant, and Mr. Santos, Individually, move for permission to file and serve a supplemental summons and amended complaint adding Dea Alves-Santos ("Mrs. Santos") as a plaintiff. Defendants St. Vincent's Hospital and Medical Center of New York ("St. Vincents"), Rita Fischer, M.D. ("Dr. Fischer") and Po Ching Fong, M.D. ("Dr. Fong") oppose this motion.
Background
On December 16, 1999, Mrs. Santos gave birth to Daudi at St. Vincents. Plaintiffs' Affirmation in Support of Motion ("Aff."), at 3. Daudi, a full-term baby, was born alive. Defendants' Affirmation in Opposition ("Opp."), Ex. B, at 31 (Verified Complaint). Shortly after the delivery, a nurse allegedly negligently used a vacuum extractor on Daudi, which deprived him of oxygen and caused his death. Aff., at 3.
On January 14, 2002, plaintiffs commenced this action claiming that defendants negligently caused Daudi to asphyxiate and die. Aff., at 3. Mrs. Santos was originally a party to the action and claimed pain and suffering due to defendants' negligence. Opp., at 3.
On December 19, 2002, the Court granted plaintiffs leave to amend their complaint to include Jose Santos as Administrator of Daudi's estate. Aff., at 4. Mrs. Santos also voluntarily discontinued her claims because she had no individual claims for pain and suffering. Id.
Plaintiffs now move for leave to amend their complaint to add Mrs. Santos as a plaintiff based on the Court of Appeals' recent decision in Broadnax v. Gonzalez, 2 NY3d 148 (2004). They argue that they should be permitted to add Mrs. Santos as a plaintiff even though the statute of limitations has expired because her claim relates back to the original filing date under CPLR 203(f). Plaintiffs' Reply ("Reply"), at 13. Furthermore, they argue that Mrs. Santos is not barred from bringing this action even though she previously discontinued her claims because waiver is the relinquishment of a known right and Mrs. Santos did not have a right to bring this suit Broadnax had not yet been decided when she discontinued her claims. Reply, at 10.
Defendants oppose this motion, arguing that Broadnax does not apply because Daudi was born alive. Opp., at 4,5. Further, defendants urge that Broadnax and its progeny should not apply retroactively to cases filed before it was decided. Opp., at 4. Additionally, they argue that Mrs. Santos waived any claims that she might have had in this action when she voluntarily discontinued them. Opp., at 3b. Finally, defendants contend that Mrs. Santos's claim is barred by the statute of limitations. Id.
Analysis
With regard to prenatal medical treatment, medical professionals owe a separate duty of care to the mother and the developing fetus. Woods v. Lancet, 303 NY 349, 357 (1951). Thus, when a doctor negligently causes a fetus to suffer permanent injuries, the infant, if later born alive, has a cause of action against the doctor. Id. Likewise, if a doctor commits medical malpractice against the mother's person that causes her physical injury, she has a separate cause of action against the doctor. Endresz v. Friedberg, 24 NY2d 478, 484 (1969).
Until 2004, however, neither a mother nor her fetus had a cause of action if a doctor negligently caused a miscarriage or stillbirth unless the mother sustained actual physical injury. Tebb
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