A child dies and a claim of medical malpractice ensues.  The parents consent to an autopsy and certain of the child’s organs are not returned.  Apparently the medical malpractice claim founders in the absence of examination of the organs, besides which, the parents want to bury them.  They sue their personal injury law firm in Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C.  2022 NY Slip Op 02994 Decided on May 4, 2022 Appellate Division, Second Department.

“The plaintiffs commenced this action against the defendant law firm, which had represented the plaintiffs in connection with a prior action to recover damages for medical malpractice in connection with the birth of their child (hereinafter the decedent). The plaintiffs alleged that they “retained the defendant to recover all of the organs removed” during an autopsy of the decedent which was conducted by New York Methodist Hospital (see Marinelli v New York Methodist Hosp., ___ AD3d ___ [decided herewith]), and “to pursue an action for medical malpractice.” In the first cause of action in the complaint, the plaintiffs alleged that the defendant failed to take certain steps to recover the subject organs, and that “had the defendant timely pursued recovery of the [subject] organs, the organs would have been available for return and burial and in fact, New York Methodist Hospital would have returned the organs to the plaintiffs for such burial.”

“Here, the complaint failed to adequately allege that the defendant’s breach of its professional duty proximately caused the plaintiffs to sustain actual damages. The plaintiffs alleged that New York Methodist Hospital (hereinafter the hospital) would have agreed to return the subject organs to the plaintiffs if the defendant had taken certain steps after it was retained. However, the plaintiffs’ contention “rests on speculation as to how [the hospital] would have responded to these [steps]” (Bua v Purcell & Ingrao, P.C., 99 AD3d at 848).

In support of its motion to dismiss the first cause of action in the complaint, the defendant submitted, among other things, a consent form (hereinafter the consent form), which was executed by the plaintiff Vito Marinelli. As we have determined in a related appeal (see Marinelli v New York Methodist Hosp., ___ AD3d ___ [decided herewith]), the consent form explicitly granted the hospital the authority to retain and dispose of the subject organs so long as the hospital considered such actions “appropriate” for the stated purpose of the autopsy, which included the general goal of “furthering medical knowledge.” The consent form thereby conferred “discretionary” authority on the hospital to determine “whether to remove and retain an organ for further [*2]examination and testing” (Cansev v City of New York, 185 AD3d at 896; see Shipley v City of New York, 25 NY3d 645, 654; cf. Zhuangzi Li v New York Hosp. Med. Ctr. of Queens, 147 AD3d 1115, 1117). The plaintiffs do not allege that they retained the defendant before the hospital exercised its discretion in this matter pursuant to the terms agreed upon in the consent form. In light of the discretion imparted by the consent form, “the plaintiff[s’] contention that the alleged malpractice resulted in legally cognizable damages is conclusory and speculative inasmuch as it is premised on decisions that were within the sole discretion of the [hospital]” (Bua v Purcell & Ingrao, P.C., 99 AD3d at 848; see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 436; Dempster v Liotti, 86 AD3d at 180; Hashmi v Messiha, 65 AD3d at 1195; Wald v Berwitz, 62 AD3d at 787; Holschauer v Fisher, 5 AD3d at 554; Giambrone v Bank of NY, 253 AD2d 786, 787; see also Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 443; Dupree v Voorhees, 68 AD3d 810, 812-813). Under the circumstances, the Supreme Court properly granted the defendant’s motion pursuant to CPLR 3211(a) to dismiss the first cause of action in the complaint. Accordingly, we affirm the first order appealed from, dated July 13, 2017.”