## Facts

- Dr. David J. Kennedy, a dental surgeon, purchased a McKesson anesthetic machine through a sales representative affiliated with a distributor.
- Kennedy later arranged for the machine to be overhauled and adjusted by the seller/distributor.
- After the machine was returned, the color-coded decals identifying the oxygen and nitrous oxide connections were allegedly reversed.
- Defendants also allegedly failed to install, or to inform Kennedy they could install, differently sized connectors that would prevent misconnection.
- During a dental procedure, Kennedy intended to administer 100% oxygen to a patient but allegedly administered 100% nitrous oxide due to the mislabeling/misconnection.
- The patient died.
- Kennedy alleged that the death led to wrongful-death litigation against him and a criminal investigation, causing mental illness, reputational harm, and withdrawal from practice.
- Kennedy sued the manufacturer, distributor, and sales representative for (1) emotional distress and (2) pecuniary losses (including loss of practice and income).

## Issues

1. Whether a dentist who suffered no physical injury may recover pecuniary losses allegedly caused by negligent servicing of professional medical equipment that resulted in a patient’s death.
2. Whether a dentist may recover for negligent infliction of emotional distress when the asserted emotional harm is based on his reaction to injury and death suffered by a third party (the patient), rather than fear for his own safety.

## Decision

- The court modified the intermediate appellate order.
- The complaint stated a valid cause of action for recovery of provable pecuniary losses attributable to defendants’ alleged negligence.
- The complaint did not state a cause of action for emotional distress damages based on indirect emotional harm arising from injury to another.
- The action was reinstated only to the extent it sought damages other than emotional injuries; dismissal of the emotional distress claim was sustained.

## Legal Principles

- A manufacturer/distributor that undertakes to service professional medical equipment owes a duty of reasonable care to the professional user, and foreseeable economic harm to that user may be recoverable in negligence even absent the user’s physical injury.
- In New York, negligent infliction of emotional distress is limited; emotional distress is generally not recoverable when it is derivative of harm to a third person and the plaintiff was not placed in danger of physical harm.
- Reputational harm is compensable only to the extent it produces provable pecuniary loss within a recognized tort theory; it does not expand negligence damages to include indirect emotional injury.

## Conclusion

The court permitted the dentist to pursue damages for provable economic losses allegedly caused by negligent repair and mislabeling of an anesthetic machine, but it barred recovery for emotional distress because the claimed emotional injury arose indirectly from harm to the patient rather than from any threat of physical injury to the dentist.


Kennedy v. McKesson Co., 58 N.Y.2d 500, 448 N.E.2d 1332 (N.Y. 1983)