Doctor May be Liable to Infant Strangled by His Mother By Levine & Slavit PLLC on December 11, 2008

In Lizardi v. Westchester County Health Care Corp, 1990/03, a father is seeking to recover damages for the wrongful death of his 7-month infant son Marc Ryan Lizardi who was strangled by his mother, Susan Moody, on February 25th, 2001. The infant's father is suing Dr. Scott Marder, who was not the treating physician for Ms. Moody during her admission to defendant Stony Lodge Hospital, but had treated her on at least one occasion during that stay during the weeks preceding the tragic event.  The doctor made a pre-answer motion to have the case dismissed against him pursuant to CPLR section 3211(a) arguing that he owes no legal duty to the infant or to the plaintiff father. The motion to dismiss was denied by Hon. Mary H. Smith in a decision dated November 13th, 2008.In order to prove his case, the father plaintiff must demonstrate the existence of a duty, a breach of that duty and that this breach was the proximate cause of the injuries suffered.   A physician's duty of care ordinarily is owed exclusively to the physician's patient. But in some circumstances, a physician's duty of care has in fact been extended to a patient's family members.  Further, liability may be imposed on a physician where there is a failure to place a patient on in-patient status that resulted from something other than the doctor's professional judgment. It is this latter situation that the plaintiff invoked in Lizardi . In light of the aforementioned case law, the Court denied the doctor's motion to dismiss, finding the plaintiff's complaint adequately stated a cause of action sounding in negligence and medical malpractice against the aforesaid doctor.  The court found that Marc was an identifiable being within the zone of danger, Ms. Mooney having verbally and repeatedly expressed her ideation of hurting and/or killing her baby, at the time the alleged malpractice had been committed and thus defendants, including defendant Marder, may have owed Marc a duty of care independent of the duty owed to Ms. Mooney. The court determined that plaintiff's complaint stated a viable cause of action in alleging that the doctor, having been aware of the mother's threats towards her child, breached his duty of care by not seeking Ms. Mooney's involuntary commitment so she could be treated as an in-patient. Ms. Mooney was subsequently tried for murder but was found not guilty by reason of insanity. Ms. Mooney had been institutionalized for four years pursuant to this verdict.

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The law firm of Levine & Slavit, PLLC has served clients in Long Island and the Greater New York City-area since 1957. We are a team of personal injury and wrongful death lawyers who work tirelessly for victims' rights. Our team is licensed and affiliated with the:

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