Rice v. Veleanu

In an action to recover damages *608for medical malpractice, the plaintiff appeals, as limited by her brief, from so much of (1) an order of the Supreme Court, Dutchess County (Jiudice, J.), dated June 6, 1994, as granted the defendants’ cross motion for partial summary judgment dismissing paragraph 39 of the complaint, and (2) an order of the same court, entered March 30, 1995, as, upon reargument, adhered to its original determination on the cross motion.

Ordered that the appeal from the order dated June 6, 1994, is dismissed, as that order was superseded by the order entered March 30, 1995, made upon reargument; and it is further,

Ordered that the order entered March 30, 1995, is affirmed insofar as appealed from; and it is further,

Ordered that the respondents are awarded one bill of costs.

It is well settled that no recovery may be had for a so-called "wrongful birth” where a normal, healthy child is born following alleged malpractice in the performance of a sterilization or abortion procedure (see, O’Toole v Greenberg, 64 NY2d 427). The evidence in the record suggests that the plaintiff’s daughter suffers from mild asthma, fallen arches, and weak ankles. However, these conditions are clearly distinguishable from the more debilitating birth defects for which recovery has been permitted to compensate parents for the "extraordinary care and treatment” necessitated by the act of malpractice (Becker v Schwartz, 46 NY2d 401, 410; Howard v Lecher, 42 NY2d 109), and do not cause the plaintiff’s daughter to be other than a normal, generally healthy child. Therefore, the court properly dismissed the plaintiff’s claim for such damages. Balletta, J. P., Miller, Sullivan and Copertino, JJ., concur.