79 A.D.2d 996 | N.Y. App. Div. | 1981
In a medical malpractice action, defendants appeal from an order of the Supreme Court, Nassau County, dated February 23, 1980, which denied their motion, pursuant to CPLR 3211 (subd [a], par 7), to dismiss the third and fourth causes of action of the amended complaint. Order reversed, on the law, without costs or disbursements, motion granted and plaintiffs’ third and fourth causes of action are dismissed. According to the amended complaint, on or about October 16, 1976, Anna E. Lafferty, while a patient at the defendant Manhasset Medical Center Hospital (the hospital), received a transfusion of a type of blood foreign to and incompatible with her blood type, because of the negligence of defendants. As a proximate result, it is alleged she suffered injury, shock and pain and thereafter died on or about July 24,1977. In this action plaintiffs Raymond R. Lafferty, the son of Anna E. Lafferty, and Helen M. Lafferty, her daughter-in-law, assert four causes of action against defendants. The first two causes of action, sounding in medical malpractice and wrongful death, are asserted solely on behalf of plaintiff Raymond R. Lafferty in his capacity as administrator of the goods, chattels and credits of Anna E. Lafferty, and are not at issue on this appeal. The third and fourth causes of action are asserted solely on behalf of plaintiff Helen M. Lafferty (hereafter plaintiff). By these causes of action, read in the context of her testimony at her examination before trial, plaintiff seeks, in essence, to recover for emotional distress and the aggravation of a pre-existing heart problem which she allegedly suffered as a result of her having been a witness to the negligent blood transfusion and a participant in the events that occurred in the 45- to 60-minute period immediately following the start of the transfusion. After joinder of issue, defendants moved to dismiss the third and fourth causes of action on the ground that they failed to state a cause of action (see CPLR 3211, subd [a], par 7). Upon the pleadings, affirmations of counsel and excerpts of plaintiff’s examination before trial submitted by plaintiffs (see CPLR 3211, subd [e]), Special Term denied defendants’ motion to dismiss these causes of action. It relied in part on Johnson v State of New York (37 NY2d 378) and Matter of Wolfe v Sibley, Lindsay & Curr Co. (36 NY2d 505), read in the light of cases such as Dillon v Legg (68 Cal 2d 728). Distinguishing the case of Tobin v Grossman (24 NY2d 609) as involving a “mere witness” to an occurrence caused by a defendant’s negligence, Special Term was of the view