Case Types -Medical Malpractice Abuse

Bilateral Varicolectomy Medical Malpractice Claim

1 No. 55
Alan P. Cohen et al.,
Appellants,
v.
Cabrini Medical Center, et al.,
Defendants, Richard Amelar,
Respondent.

Plaintiff

Amy Margolis appeals from an Appellate Division order affirming dismissal of her cause of action for personal injuries she allegedly suffered by reason of the medical malpractice of defendant Dr. Richard Amelar in performing surgery upon her husband, plaintiff Alan P. Cohen. As set forth in the complaint, bill of particulars and other submissions in opposition to defendant's motion to dismiss, Margolis alleges that, after unsuccessful efforts to conceive a child and consultations with various fertility experts, she and her husband consulted with Amelar, a urologist who specializes in male infertility. Upon Amelar's recommendation, Cohen decided to undergo a bilateral varicolectomy, a surgical procedure to enhance his fertility. Amelar told the couple that there was a 50-70% chance of success and provided them with a study he had co-authored, "Varicole and Male Infertility: 25 Years' Experience."

Amelar performed the surgery two months later at defendant Cabrini Medical Center. Instead of improving Cohen's fertility, however, the complaint alleges that his sperm count dropped because Amelar improperly removed a section of artery as well as vein during the surgery. As a result, Margolis contends that she could be impregnated only through in vitro fertilization ("IVF"). After undergoing eight unsuccessful IVF attempts using Cohen's sperm and her own eggs, she finally became impregnated on the ninth attempt, in which donor eggs and Cohen's sperm were used.

Both plaintiffs then commenced this action for damages caused by defendant's alleged medical malpractice. The complaint contains three causes of action: (1) for personal injuries sustained by Cohen, (2) for personal injuries sustained by Margolis and (3) a derivative claim for Margolis' loss of consortium. Amelar moved to dismiss the second cause of action for Margolis' injuries and to strike from her bill of particulars any claims related to her pain, suffering and mental anguish due to the IVF procedures and her inability to bear her own genetic children with Cohen. Supreme Court granted defendant's motion.

The Appellate Division unanimously affirmed on the ground that Amelar did not owe Margolis any duty of care as she was not his patient (262 2 159). It then certified the following question to this Court: "Was the order of the Supreme Court, as affirmed by this Court, properly made?" We answer that question in the affirmative .

See in full at:

http://www4.law.cornell.edu/cgi-bin/htm_hl?DB=NYCTAP&STEMMER=
en&WORDS=medic+malpractic+2000+&COLOUR=Red&STYLE=
es&URL=http://www.law.cornell.edu/ny/ctap
/I00_0043.htm#muscat_highlighter_first_match