Opinion
191 CA 22-01713
06-09-2023
Morgan Jamie DUNBAR and Macnore Cameron, Plaintiffs-Appellants, v. WOMEN & CHILDREN'S HOSPITAL OF BUFFALO, and Its Successors in Interest, Including Corporations and/or Entities, John R. Oishei Children's Hospital, Previously Known as Women & Children's Hospital of Buffalo, Kaleida Health, Inc., Gil Michael Farkash, M.D., Debra M. Erckert, R.N., Denise M. Meissner, R.N., Katharine V. Morrison, M.D., Katharine V. Morrison, M.D., PLLC, the Birthing Center of Buffalo, doing business as Buffalo Womenservices, LLC, Buffalo Gyn Womenservices, Inc., Eileen Stewart, CNM, Buffalo Midwifery Services, PLLC, Defendants-Respondents, et al., Defendants. (Appeal No. 2.)
MORGAN JAMIE DUNBAR, PLAINTIFF-APPELLANT PRO SE. MACNORE CAMERON, PLAINTIFF-APPELLANT PRO SE. CONNORS LLP, BUFFALO (MOLLIE C. MCGORRY OF COUNSEL), FOR DEFENDANTS-RESPONDENTS WOMEN & CHILDREN'S HOSPITAL OF BUFFALO, AND ITS SUCCESSORS IN INTEREST, INCLUDING CORPORATIONS AND/OR ENTITIES, JOHN R. OISHEI CHILDREN'S HOSPITAL, PREVIOUSLY KNOWN AS WOMEN & CHILDREN'S HOSPITAL OF BUFFALO, KALEIDA HEALTH, INC., DEBRA M. ERCKERT, R.N., AND DENISE M. MEISSNER, R.N. THE TARANTINO LAW FIRM, LLP, BUFFALO (KIMBERLY A. CLINE OF COUNSEL), FOR DEFENDANTS-RESPONDENTS EILEEN STEWART, CNM, AND BUFFALO MIDWIFERY SERVICES, PLLC. EAGAN & HEIMER PLLC, BUFFALO (NEAL A. JOHNSON OF COUNSEL), FOR DEFENDANTS-RESPONDENTS KATHARINE V. MORRISON, M.D., KATHARINE V. MORRISON, M.D., PLLC, THE BIRTHING CENTER OF BUFFALO, DOING BUSINESS AS BUFFALO WOMENSERVICES, LLC, AND BUFFALO GYN WOMENSERVICES, INC.
MORGAN JAMIE DUNBAR, PLAINTIFF-APPELLANT PRO SE.
MACNORE CAMERON, PLAINTIFF-APPELLANT PRO SE.
CONNORS LLP, BUFFALO (MOLLIE C. MCGORRY OF COUNSEL), FOR DEFENDANTS-RESPONDENTS WOMEN & CHILDREN'S HOSPITAL OF BUFFALO, AND ITS SUCCESSORS IN INTEREST, INCLUDING CORPORATIONS AND/OR ENTITIES, JOHN R. OISHEI CHILDREN'S HOSPITAL, PREVIOUSLY KNOWN AS WOMEN & CHILDREN'S HOSPITAL OF BUFFALO, KALEIDA HEALTH, INC., DEBRA M. ERCKERT, R.N., AND DENISE M. MEISSNER, R.N.
THE TARANTINO LAW FIRM, LLP, BUFFALO (KIMBERLY A. CLINE OF COUNSEL), FOR DEFENDANTS-RESPONDENTS EILEEN STEWART, CNM, AND BUFFALO MIDWIFERY SERVICES, PLLC.
EAGAN & HEIMER PLLC, BUFFALO (NEAL A. JOHNSON OF COUNSEL), FOR DEFENDANTS-RESPONDENTS KATHARINE V. MORRISON, M.D., KATHARINE V. MORRISON, M.D., PLLC, THE BIRTHING CENTER OF BUFFALO, DOING BUSINESS AS BUFFALO WOMENSERVICES, LLC, AND BUFFALO GYN WOMENSERVICES, INC.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND MONTOUR, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs are the parents of an infant who died shortly after birth, and they commenced this medical malpractice action seeking to recover damages for emotional injuries that they allegedly sustained as a result of defendants’ negligence in providing medical treatment during plaintiff Morgan Jamie Dunbar's labor and delivery of the child. Plaintiffs appeal from an order that, inter alia, granted those parts of the motions of all defendants-respondents except Gil Michael Farkash, M.D. and Katharine V. Morrison, M.D., PLLC (collectively, defendants) seeking to dismiss plaintiffs’ claims sounding in ordinary negligence and their cause of action for lack of informed consent against them. We affirm.
Contrary to plaintiffs’ contention, Supreme Court properly granted those parts of defendants’ motions seeking to dismiss the ordinary negligence claims asserted against them in the fourth amended complaint. Specifically, we conclude that the first three causes of action "sound[ ] in medical malpractice rather than ordinary negligence [because] the challenged conduct ‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician’ to a particular patient" ( Cullinan v. Pignataro , 266 A.D.2d 807, 808, 698 N.Y.S.2d 381 [4th Dept. 1999], quoting Bleiler v. Bodnar , 65 N.Y.2d 65, 72, 489 N.Y.S.2d 885, 479 N.E.2d 230 [1985] ; see Weiner v. Lenox Hill Hosp. , 88 N.Y.2d 784, 788, 650 N.Y.S.2d 629, 673 N.E.2d 914 [1996] ). Additionally, the first through third causes of action do not sound in ordinary negligence inasmuch as the allegations in the fourth amended complaint with respect to those causes of action involve matters "not within the ordinary experience and knowledge of laypersons" ( McDonald v. State of New York , 13 A.D.3d 1199, 1200, 787 N.Y.S.2d 597 [4th Dept. 2004] [internal quotation marks omitted]), and thus the parties would be required to proffer expert testimony to establish the relevant standard of care concerning the challenged conduct (see generally B.F. v. Reproductive Medicine Assoc. of N.Y., LLP , 136 A.D.3d 73, 80, 22 N.Y.S.3d 190 [1st Dept. 2015], affd 30 N.Y.3d 608, 69 N.Y.S.3d 543, 92 N.E.3d 766 [2017], rearg denied 31 N.Y.3d 991, 73 N.Y.S.3d 788, 789, 97 N.E.3d 397, 398 [2018]; McDonald , 13 A.D.3d at 1200, 787 N.Y.S.2d 597 ).
With respect to the cause of action for medical malpractice based on lack of informed consent, we conclude that the court properly granted those parts of defendants’ motions seeking to dismiss that cause of action against them. "The right of action to recover for medical, dental or podiatric malpractice based on a lack of informed consent is limited to those cases involving either (a) non-emergency treatment, procedure or surgery, or (b) a diagnostic procedure which involved invasion or disruption of the integrity of the body" ( Public Health Law § 2805-d [2] ). Here, we conclude that plaintiffs failed to state a cause of action for lack of informed consent because, as pleaded in the operative complaint, "[t]he injuries allegedly sustained ... were not the result of an invasive procedure, but instead were alleged to have been the result of a negligent failure to undertake or negligent postponing of such procedure"—i.e., defendants’ alleged delay in ordering a cesarean section—during an ongoing emergency situation ( Jaycox v. Reid , 5 A.D.3d 994, 995, 773 N.Y.S.2d 637 [4th Dept. 2004] ; see generally Saguid v. Kingston Hosp. , 213 A.D.2d 770, 772, 623 N.Y.S.2d 341 [3d Dept. 1995], lv denied 87 N.Y.2d 861, 639 N.Y.S.2d 312, 662 N.E.2d 793 [1995], lv dismissed 88 N.Y.2d 868, 644 N.Y.S.2d 686, 667 N.E.2d 337 [1996] ).
We have considered plaintiffs’ remaining contention and conclude that it does not warrant reversal or modification of the order.