Kristi Foote v. Albany Medical Center HospitalAnnotate this Case
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
Kristi Foote et al.,
Albany Medical Center Hospital,
Robert A. Rausch, for appellants Albany Medical Center
Hospital et al.
Adam H. Cooper, for appellant Baerthlein.
Katherine W. Dandy, for appellants Evanczyck et al.
Daniel S. Ratner, for appellants Birth & Beyond
Midwifery Practice of Oneonta, PLLC et al.
Michael J. Hutter, for respondents.
Plaintiffs Kristi Foote and Tim Sheridan are the
parents of a child born in August 2003 with Joubert Syndrome, a
neurological disorder causing abnormalities in brain development
and function and resulting in developmental and behavioral
After the child's birth, plaintiffs commenced this
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medical malpractice "wrongful birth" action (see Becker v
Schwartz, 46 NY2d 401, 409 ) against numerous medical
providers who allegedly failed to detect and/or failed to inform
them of the abnormal cerebellar development of the fetus.
Plaintiffs allege that steps would have been taken to terminate
the pregnancy had they been properly informed.
They seek damages
for the extraordinary expenses involved in caring for their
severely disabled child, including medical treatment and
supplies, surgical treatment, physical therapy, vision therapy,
occupational therapy, a home health aide, and special educational
Defendants moved for summary judgment dismissing the
complaint, submitting expert affirmations stating that the
extraordinary expenses necessary for the child's care have been
and will continue to be completely covered by certain enumerated
In opposition to defendants' motion,
plaintiffs submitted the affirmation of Dr. Joseph Carfi, M.D.,
who prepared a "life care plan" and report detailing the care
required for the child.
According to Dr. Carfi, the government
programs referenced by defendants' experts provided only a
"minimum level of services" so as to create a "basic floor of
Dr. Carfi also took the position that "optimal
care" for the child required more services than those provided by
government programs and, as a result, plaintiffs had or would be
forced to bear out-of-pocket expenses related to the child's
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Supreme Court granted
defendants' motion for summary judgment, concluding that
plaintiffs had failed to raise a triable issue of fact as to
whether they had or would incur extraordinary expenses in
providing for the medical and educational care of their son.
On plaintiffs' appeal, the Appellate Division
unanimously reversed (see Foote v Albany Med. Ctr. Hosp., 71 AD3d
25 [3d Dept 2009]).
Although it agreed that most of plaintiffs'
expenses in caring for the child had been and would continue to
be covered under government programs, the Appellate Division
concluded that the aid received by plaintiffs for such programs
would, under the statutory collateral source rule, merely serve
to offset any award of damages made after trial (see id. at 28).
The Appellate Division also concluded that Dr. Carfi's
"affirmation, report and life-care plan, which distinguish
between the 'basic floor' of services provided by public
education and the level necessary to meet all of the son's needs,
[were] sufficient to raise a question of fact" for trial (id.).
Because Supreme Court had not considered defendants' alternative
basis for summary judgment -- that plaintiffs could not establish
a deviation from the applicable standard of medical care -- the
Appellate Division remitted for consideration of that issue.
The Appellate Division granted defendants leave to
appeal and certified a question inquiring whether it erred, "as a
matter of law, in reversing . . . the order of the Supreme Court
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. . . and remitting the matter to Supreme Court for further
We now affirm and answer the certified question in
In Bani-Esraili v Lerman (69 NY2d 807 ), we
explained that, in a "wrongful birth" action, the parents'
"legally cognizable injury" is "the increased financial
obligation arising from the extraordinary medical treatment
rendered the child during minority" (id. at 808; see also
Alquijay v St. Luke's-Roosevelt Hosp. Ctr., 63 NY2d 978, 979
; Becker, 46 NY2d at 413).
Here, the Appellate Division
properly concluded that defendants' motion for summary judgment
should have been denied.
Dr. Carfi's life care plan, report and
affirmation are sufficient to demonstrate the existence of a
triable factual issue whether plaintiffs have or will incur
extraordinary financial obligations relating to the care of their
In particular, a question of fact exists whether there is a
difference between the resources provided by government programs
and the extraordinary medical and other treatment or services
necessary for the child during minority.
We thus agree with the
Appellate Division that "[t]he existence of government programs .
. . will not, as a matter of law, eliminate plaintiffs' financial
obligation for their son's extraordinary medical and educational
expenses" (Foote, 71 AD3d at 29 [citations omitted]).
In light of our conclusion, we need not reach and
express no opinion about the additional ground for denial of the
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motion for summary judgment, set forth by the Appellate Division,
that, pursuant to the statutory collateral source rule (see CPLR
4545 [a]), "the availability of another source of compensation
does not obviate" plaintiffs' injury but, instead, can only
offset any damages awarded after trial (Foote, 71 AD3d at 28).
That issue, along with issues pertaining to liens, if any, and
the underlying medical malpractice issues remain open for
consideration by Supreme Court.
Accordingly, the order of the Appellate Division should
be affirmed, with costs, and the certified question answered in
Order affirmed, with costs, and certified question answered in
the negative. Opinion by Judge Ciparick. Chief Judge Lippman
and Judges Graffeo, Read, Smith, Pigott and Jones concur.
Decided February 15, 2011
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