Wilson, Elser, Moskowitz, Edelman & Dicker, L. L. P., New York City (
Lori Rosen Semlies of counsel), for Lutheran Medical Center, appellant.
Fager & Amsler, East Meadow, for John J. DeLuca, appellant.
Jerome Neuman, Brooklyn, for respondents. SCHOLNICK and CHETTA, JJ., concur; ARONIN, J. P., dissents in part in a separate memorandum.
OPINION OF THE COURT
MEMORANDUM. Order reversed without costs, motions for summary judgment granted and complaint dismissed as to defendants Lutheran Medical Center and John J. DeLuca. The plaintiffs brought this action to recover damages for being mistakenly informed that their 91-year-old relative had died, for not timely informing them that she had revived and for defendant physician, DeLuca, telling them that she would be a "vegetable" if she survived. The patient, upon revival, was apparently not mentally damaged and eventually left the hospital. She survived for several months thereafter. Both plaintiffs set forth the same allegations of injuries in their respective bills of particulars. They were the following: "Physical ailments suffered by the Plaintiffs include head, neck, back and abdominal pain, dizziness and shortness of breath. Emotional distress included depression, moodiness, anger and frustration. Trauma included shock at being notified of Martha Nordbo's demise and shock at being notified she was in fact alive. Plaintiffs still retain anger and resentment for the negligence and insensitivity of the Defendants in not informing them of Martha Nordbo's true condition. This has resulted in periods of depression, moodiness and anger with associated headaches, back, neck and abdominal pains." Plaintiff John Nordbo also testified at his deposition that after the incident he developed a tremor in his hand. In support of their motion for summary judgment, defendants adduced, inter alia, an affidavit from a physician asserting that plaintiff John Nordbo's Parkinsonian tremors were not produced by the event complained of and that, given the patient's age and condition and the existence of a "Do not Resuscitate Order," the declaration of her death was not a violation of proper medical procedures. Moreover, two physicians averred that after the patient had revived, they made a number of unsuccessful attempts to contact the plaintiffs, one of whom was not present at the hospital and the other of whom shortly left the medical area where the patient was located. v McKesson Co., supra, at 504; Johnson v State of New York, supra). As to sanctions, it is my opinion that they are not warranted on the facts of this case.