Rakamaric v Quest Diagnostics Inc.

[*1] Rakamaric v Quest Diagnostics Inc. 2006 NY Slip Op 51634(U) [13 Misc 3d 1201(A)] Decided on July 18, 2006 Supreme Court, Nassau County Galasso, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 18, 2006
Supreme Court, Nassau County

Denise Rakamaric and Branko Rakamaric, Plaintiffs,

against

Quest Diagnostics Incorporated, Defendants.



005016/04



Attorneys of Record

JOHN J. APPELL, ESQ. Attorney for Plaintiffs

3 West 35th Street

New York NY 10001

212.947.0101

Wilson Elser Moscowitz, et al, P.C.

Attorneys for Defendant

150 East 42nd Street

New York NY 10017

212.490.3000

Secondary address:

3 Gannett Drive

White Plains NY 10604

John M. Galasso, J.

Upon the foregoing papers, defendant's motion for an order dismissing the second cause of action and the third cause of action as to plaintiff -husband Branko pursuant to CPLR §3211(a)(7) and for partial summary judgment pursuant to CPLR §3212 as to plaintiff-wife Denise's claim is determined a follows:

Plaintiffs do not object to the dismissal of the claimed HIPPA violations in the second cause of action and, accordingly, it is dismissed.

The remaining actions are for emotional distress on behalf of plaintiff -wife Denise and separately on behalf of plaintiff -husband Branko. Plaintiff -husband Branko as the husband of plaintiff -wife Denise also asserts a derivative cause of action for the emotional injury suffered by his wife.

This case involves the false positive reporting of a sexually transmitted disease and its effect on plaintiff's marriage. Defendant is the diagnostic laboratory that, admittedly, made the error.

The Court adopts for the purposes of this application the undisputed facts set forth at Paragraph 4 of defendant's reply affirmation.

Defendant contends that the complaint fails to state a cause of action upon which plaintiff -husband can recover either directly or derivately. Defendant argues that since [*2]plaintiff-husband was not a patient and it was not his blood test, there was no duty of reasonable care owned to him by defendant, a diagnostics facility

Preliminarily, the Court notes that this is not a medical malpractice action and the settled rule that emotional stress suffered by members of a patient's family is ordinarily not recoverable does not

Index No. 005016/042

apply to the facts of this case (e.g., Cohen v. Cabrini Medical Center, 94 NY2d 639; Jacobs v. Horton Memorial Hospital, 130 AD2d 546; Landon v. New York Hospital, 101 AD2d 489 aff'd 65 NY2d 639).

This Court must determine whether under the circumstances at bar, a direct duty between the diagnostics facility and plaintiff-husband has been established so as to base a cause of action to recover for emotional distress.

In Ellis v. Peter, 211 AD2d 353, a medical malpractice action, the Second Department held that, although the spouse may also be considered to be in the class of person whom the physician knew or reasonably should have known were relying upon him for a duty of care to his patient, the Court would not extend the physician's duty to his patient to one based in common law to the patient's wife, thereby creating a new cause of action. The Court reasoned that the concept of foreseeability does not define the duty, instead it "only circumscribes the boundaries of a duty after it has been established that one exists" (Id).

The action at bar involving a laboratory that made a mistake is even more removed from a doctor's duty to the patient's spouse as discussed in Ellis, which concerned a diagnosis of tuberculosis and the imposed statutory mandates upon the doctor under the Public Health Law.

The undersigned concludes that here the laboratory's duty is cognizable only directly to plaintiff-wife since it was her blood sample being tested. No doubt hundreds of blood samples are tested daily. An emotional injury to the husband, although perhaps emanating from a negligent act impacting on the plaintiff- wife, is not directly redressable.

Accordingly, defendant's motion is granted to dismiss the direct cause of action for emotional injury by plaintiff-husband. Nevertheless, plaintiff-husband may still maintain his derivative action for loss of consortium (PJI 2:315 and commentary).

Finally, defendant' s motion for partial summary judgment to limit plaintiff -wife's claim is denied (compare, Damanti v. Jamaica Community Adolescent Program, 12 AD3d 341and Orenstein v. New York City Health and Hospitals Corp., 27 AD3d 180 ). The action is not [*3]analogous to "phobia" cases where there were false positive results. Here it is alleged that the emotional distress directly impacted the marriage, perhaps well after the true blood test results were learned. It is a question of fact for the jury.

Dated: July 18, 2006.....................................................J.S.C.