(DOWNLOAD) "Robert Liebler v. Our Lady Victory Hospital Et Al." by Supreme Court of New York " Book PDF Kindle ePub Free
eBook details
- Title: Robert Liebler v. Our Lady Victory Hospital Et Al.
- Author : Supreme Court of New York
- Release Date : January 17, 1974
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 68 KB
Description
Memorandum: Plaintiffs-appellants Robert and Helen Liebler individually and as parents of their infant son Robert, Jr. appeal from Special Terms order which granted defendants-respondents, hospital and doctors, motion to dismiss the second, third, fourth, fifth and sixth causes of action of plaintiffs complaint. The only surviving cause is the first in which the infant seeks recovery from all the defendants for personal injuries which resulted from alleged "negligent, careless and committed acts of malpractice". All of the causes of action arise out of the same transaction involving the delivery of Mrs. Liebler, mother of the infant plaintiff. The defendants are the hospital where the delivery took place, two obstetricians (Fote and Kozera), who attended the mother prior to the infants birth, and defendant Doctor Cotter, who delivered the infant. The allegations of the complaint, which must be accepted as true for the purposes of this review, assert that the mother had contracted with Doctors Fote and Kozera to provide the necessary medical care when the infant was born, or in the event neither was available at the time, to "provide suitable medical care by another qualified person when needed". The complaint further alleged that the mother had entered into a contract for medical services with the defendant hospital. The second, fourth and sixth causes of action which sound in contract were properly dismissed because there is no allegation that the defendants undertook a special contractual obligation other than that they would provide adequate medical services for the care and delivery of the infant. A cause of action in contract, as distinguished from one in malpractice, must be based upon the breach of a particular or special agreement (Robins v. Finestone, 308 N. Y. 543; Colvin v. Smith, 276 App. Div. 9; Keating v. Perkins, 250 App. Div. 9). An allegation of failure to provide medical care or failure to provide medical service in a proper manner is insufficient, for it is merely an attempt to plead as a contract action one which is essentially a malpractice action. Any damage which is recoverable in the second, fourth and sixth causes of action is recoverable in a malpractice action (Calhoun v. Gale, 29 A.D.2d 766, affd. 23 N.Y.2d 756). The order appealed from permits plaintiffs to serve an amended complaint, if appropriate, to allege a special contract. The third cause of action, based upon the pain and suffering of the mother as a result of the malpractice of the defendants and also including pain, suffering and expense as a result of the birth of the injured child, should [43 A.D.2d 898 Page 899]