The plaintiff alleged, in Cronin v. Jamaica Hospital Medical Center, — N.Y.S.2d —-, 2009 WL 711761 (March 17, 2009), that the defendant wrongfully prolonged the decedent’s life by resuscitating him on two occasions against the express instructions of the decedent and his family as contained in two Do-Not-Resuscitate orders issued by the hospital and executed by members of the decedent’s family. The Appellate Division, Second Department, affirmed the granting of summary judgment in favor of the defendant and dismissing the complaint on the ground that the plaintiff was asserting a claim for wrongful living and that no such cause of action can be maintained. The status of being alive does not constitute an injury in New York, said the Court.
The decision indicates, however, that had the plaintiff submitted evidence raising a triable issue of fact as to whether the decedent was injured as a result of the resuscitations themselves, summary judgment could have been avoided. New York’s Court of Appeals has held that New York does not recognize a cause of action for wrongful life.
Alquijay v. St. Luke’s-Roosevelt Hosp. Ctr., 63 N.Y.2d 978; Becker v. Schwartz, 46 N.Y.2d 401, 412. These cases involved claims that a pregnancy would not have occurred or would have been terminated in the absence of medical malpractice. In Alquijay, the baby was born with Downs syndrome that was allegedly not detected by amniocentesis. In Becker, the baby was born with polycystic kidney disease after physicians had advised that the disease, already being suffered by the parents first child, is not hereditary.
Interestingly, the Court of Appeals, while not permitting the child to sue for wrongfully prolonged life, would permit the parents of the child to recover for the extra obligations they would incur (until the infant reached majority) from the birth of the unhealthy child.