Case: Devito v. Opatich, 627 N.Y.S.2d 441 (N.Y. App. Div. 2d Dept. 1995).
Plaintiff (Appellee) - Sabrina Devito
Defendant (Appellant) - J.M. Opatich
Court: New York Appellate Court, 2nd Division (1995)
Procedural HistoryParents of an infant who suffered from cerebral palsy on the right side of his body brought a medical malpractice action against the delivering physician. The Supreme Court, Suffolk County entered a judgment on the jury verdict which awarded the parents $1,550,000, including $50,000 for loss of child's services and loss of society. The Defendant appealed.
Summary of FactsThe parents of an infant who suffered from cerebral palsy on the right side of her body brought an action against the doctor who delivered the infant. The parents were able to show that the infant’s cerebral palsy was caused by the doctor’s negligence.
Outcome at TrialThe jury found the doctor liable for medical negligence, awarding the parents of the infant $1,550,000.
Issues on AppealThe Defendant contended that the trial court erred by including as an element of the parents' damage, the loss of their minor daughter's society, which is not compensable.
Appellate Court HoldingsThe Supreme Court, Appellate Division, held that finding that the infant's cerebral palsy was caused by negligence of the defendant-physician was supported by evidence. However, the Plaintiffs could not recover for loss of their child's society in an action following injury to the child. Finally, the court found that the jury award for loss of the child's services to society was improper because there was no evidence of value of lost services.
Relevant Application of Law
Damage to loss of society of a child is not compensable. Gilbert v. Stanton Brewery, Inc., 295 N.Y. 270, 273, 67 N.E.2d 155; DeAngelis v. Lutheran Med. Center, 84 A.D.2d 17, 25, 445 N.Y.S.2d 188,
affd. 58 N.Y.2d 1053, 462 N.Y.S.2d 626, 449 N.E.2d 406; White v. City of New York, 37 A.D.2d 603, 322 N.Y.S.2d 920; Foti v. Quittel, 19 A.D.2d 635, 241 N.Y.S.2d 15).