On 7 March 1991 and on 14 June 1991, the Family Court of New York County made a finding of neglect against the subject parents and ordered a year of minimal supervision by the Child Welfare Administration, respectively. An appeal from the order followed.
The court finds that the orders must be are affirmed, without costs.
As the Family Court Act provides, a prima facie case of abuse or neglect is established by proof of injuries sustained by a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of such child. Once a prima facie case is established, the burden of coming forward with the proof shifts from the petitioner to the parents to offer a satisfactory explanation to rebut the evidence of abuse.
Here, the court finds that the ruling of the Family Court that the subject child was neglected was supported by evidence and that he sustained a spiral fracture of his upper right arm while in the sole care of his parents. This injury, according to the expert testimony of two witnesses, would not have been caused by the child’s spina bifida. Further, while there was some testimony by the mother that the injury could have been caused by the infant’s two and one-half year old brother, other testimony demonstrated that it was unlikely that a two and one-half year old child would have the strength or dexterity necessary to inflict such an injury. Moreover, despite the overwhelming medical evidence that the child would have experienced extreme pain immediately after the injury, and the pain would have continued for several days, the mother testified that prior to the morning of 10 October 1989, when she brought the subject child to the Institute for an evaluation as to his spina bifida, she observed no swelling or discoloration of the right arm and no indication the child was suffering pain or discomfort. The uncontroverted medical testimony was that multiple signs of injury, including swelling, discoloration, lack of movement of the arm and pain whenever the arm was touched, would have been clearly apparent to the parents and they should have sought medical treatment sooner than October 10. Thus, the record establishes that the parents failed to take prompt and appropriate action to obtain medical treatment for the child after the injury to his arm was readily discernible. In addition, the Queens Family Court did not abuse its discretion in concluding the parents required the continued services of the agency and ordering a twelve month period of supervision. In any event, since the dispositional order has expired, the issue of the length of the supervision is now moot.
On 7 August 1991, the Supreme Court of Ulster County granted certain defendants’ motions for summary judgment dismissing the complaint against them. An appeal from the said judgment followed.
There are two actions involved which allege medical malpractice arising out of the labor and delivery of plaintiff at a Hospital in Ulster County on 16 January 1980. The first action seeks to recover damages for the pain and suffering plaintiff experienced during a prolonged and difficult labor, during the birth of her son, however, permanent injury is not alleged; she also seeks damages for the emotional distress allegedly incurred by her due to the condition of her infant; and includes a derivative cause of action on behalf of plaintiff’s husband. The second action was commenced on behalf of the infant seeking damages for injuries he sustained at the time of his birth. Nonetheless, the herein appeal is limited to the dismissal of the complaint in the first action.
Here, the court finds that plaintiff did not sustain any physical injury and by reason of the fact that her pain and suffering was not alleged to be permanent, but that the pain was associated with the childbirth process resulting from the prolonged labor and delivery of her son, it is not actionable. In view thereof, in the absence of an independent physical injury to plaintiff, her cause of action seeking recovery for emotional or psychic harm occasioned by the birth of her child in an alleged impaired state must also fail. Thus, with the plaintiff having failed to set forth a cognizable claim, the derivative action of plaintiff’s husband must also fail. On plaintiff’s claim that defendants have failed to support their motion for summary judgment with an affidavit of merit, the court finds this untenable. The evidence in the record clearly establishes as a matter of law that plaintiffs have no cognizable claim. Therefore, the Supreme Court correctly granted summary judgment to defendants dismissing the complaint in the first action. In sum, the judgment appealed is affirmed, with one bill of costs.
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