reversing damages award because loss of minor daughter's society is not compensableSummary of this case from Matthias v. United States
May 30, 1995
Appeal from the Supreme Court, Suffolk County (Floyd, J.).
Ordered that the judgment is modified, on the law and the facts, by deleting the provision thereof which awarded the plaintiff parents $50,000 for loss of their child's services and loss of her society and that cause of action is dismissed; as so modified, the judgment is affirmed, with costs to the infant plaintiff payable by the appellants, and the matter is remitted to the Supreme Court, Suffolk County, for entry of an appropriate amended judgment.
Contrary to the defendants' contention, the infant plaintiff adduced sufficient evidence from which the jury could rationally conclude that her condition of cerebral palsy involving the right side of her body was proximately caused by the negligence of the defendant J.M. Opatich (see, Chazon v Parkway Med. Group, 168 A.D.2d 660; Mortensen v Memorial Hosp., 105 A.D.2d 151). Moreover, upon our review of the record, we find that the verdict in favor of the infant plaintiff was not against the weight of the credible evidence (see, Cohen v Hallmark Cards, 45 N.Y.2d 493, 498-499; Moffatt v Moffatt, 86 A.D.2d 864, affd 62 N.Y.2d 875). While there was conflicting expert testimony as to the cause of the damage to the infant plaintiff's left cerebral hemisphere, the jury was entitled to give credence to the testimony of the parents respecting their observations at the hospital at the time of delivery and accept the opinion of the plaintiffs' expert witnesses, that the failure to deliver the infant prior to the spontaneous delivery represented a departure from good and accepted medical practice and was a substantial factor in bringing about the infant plaintiff's injury (see, Dunham v Village of Canisteo, 303 N.Y. 498, 504; Mortensen v Memorial Hosp., 105 A.D.2d 151, 158, supra).
However, we agree with the defendants that the court erred with respect to that portion of the charge which included as an element of the parents' damage the loss of their minor daughter's society which is not compensable (see, Gilbert v Stanton Brewery, 295 N.Y. 270, 273; De Angelis v Lutheran Med. Ctr., 84 A.D.2d 17, 25, affd 58 N.Y.2d 1053; White v City of New York, 37 A.D.2d 603; Foti v Quittel, 19 A.D.2d 635). Furthermore, there was no proof of loss of services. Thus, that portion of the judgment which is in favor of the infant plaintiff's parents in the amount of $50,000 must be reversed.
The defendants' remaining contentions are either unpreserved for appellate review or without merit. Sullivan, J.P., Miller, Santucci and Altman, JJ., concur.