Opinion
05-29029.
December 14, 2010.
KRAMER, DILLOF, LIVINGSTON, et al., Attorney for Plaintiffs, New York, New York.
GEISLER GABRIELE, LLP, Attorney for Defendants Golub, Makowski Port, Jefferson OBGYN, Garden City, New York.
ANTHONY P. VARDARO, P.C., Attorney for Defendants Jerry Ninia, Smithtown, New York.
CALLAN, KOSTER, BRADY BRENNAN, LLP, Attorney for Defendants Paul LI Anesthesia, Physicians, New York, New York.
KOPFF, NARDELLI DOPF, LLP, Attorney for Defendants Bhatty St. Charles, Hospital Rehabilitation Center, New York, New York.
Upon the following papers numbered 1 to 18 read on these motions for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers 1 — 4, 5 — 8; Notice of Cross Motion and supporting papers__; Answering Affidavits and supporting papers 9 — 10, 11 — 13; Replying Affidavits and supporting papers 14-16, 17-18; Other__; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that the motions (001, 002) are consolidated for the purpose of this determination: and it is further
ORDERED that the motion (001) by defendant Jerry G. Ninia, M.D., Dr. Jerry Ninia OB-GYN, PLLC, doing business as Island Obstetrics and Gynecology Center, for summary judgment dismissing the action and all counterclaims as asserted against them is granted with prejudice; and it is further
ORDERED that the motion (002) by defendants Steven Golub, M.D., Philip Makowski, M.D., and Port Jefferson Obstetrics and Gynecology, P.C. for summary judgment dismissing the action and all counterclaims as asserted against them is granted with prejudice.
In this medical malpractice action, plaintiffs Kristen Faicco and John Faicco allege that defendants departed from accepted standards of medical care in the delivery of their daughter, the infant plaintiff Ava Faicco on December 28, 2004, and also allege a derivative cause of action. The record reveals that plaintiff Kristen Faicco (hereinafter "the plaintiff") was a patient of defendant gynecologist/obstetrician Stephen Golub, M.D. She presented to defendant's office for infertility treatment on January 26, 2004. By the May 12, 2004 visit, plaintiff was pregnant; however, defendant Golub noted that the progesterone levels were low and prescribed prometrium until the fetus was 11 weeks gestation. Plaintiff was seen, thereafter, on a regular basis in the office for check ups and sonograms. By December 22, 2004, the gestational age of the fetus was 37.5 weeks and the gross structure development of the fetus appeared normal to the extent detectable by sonogram.
On December 27, at approximately 11:20 p.m., Kristen Faicco began experiencing labor pains and her membranes spontaneously ruptured. After notifying defendant Golub, she was admitted to the labor and delivery unit at defendant St. Charles Hospital and Rehabilitation Center (hereinafter "St. Charles") on December 28, 2004 at 1:00 a.m. She was admitted by the nurse on duty and placed on an electronic fetal monitor. At approximately 2:30 a.m., a vaginal examination by the nurse revealed that the plaintiff was four centimeters (cm) dilated and the fetal heart rate was 140 beats per minute. At approximately 2:48 a.m., defendant Golub arrived at the unit and examined the plaintiff. He placed a call to the anesthesiologist on call. At 2:59 a.m., the fetal heart rate began to decelerate to 55 beats per minute. Defendant Golub performed interauterine resuscitation efforts to increase the fetal heart rate, which was successful for only a short time. At this time, the anesthesiologist, defendant David Paul, M.D. . returned the call and was told by the nurse that he was needed for defendant Golub's patient. It is undisputed that in December 2004. St. Charles did not require its on-call anesthesiologists to be physically present within the hospital for the entire duration of their on-call period.
At 3:09 a.m., defendant Golub diagnosed fetal bradycardia with suspected occult cord prolapse and determined that a caesarean section was necessary. The patient was transferred to the operating room. Defendant Jerry Ninia, M.D. was called to assist defendant Golub with the surgery and arrived shortly thereafter. At 3:31 a.m., defendant Paul arrived and administered the anesthesia. At 3:35 a.m., defendant Golub made the first incision and the infant plaintiff was delivered at 3:38 a.m. and was transferred to the neonatal unit. It was determined that the infant plaintiff sustained hypoxic ischemic encephalopathy, brain damage and cerebral palsy. This action was subsequently commenced.
Defendants Jerry G. Ninia, M.D., Dr. Jerry Ninia OB-GYN, PLLC, doing business as Island Obstetrics and Gynecology Center ("the Ninia defendants"), now move for summary judgment dismissing the action. Defendants Steven Golub, M.D., Philip Makowski, M.D., and Port Jefferson Obstetrics and Gynecology. P.C. ("the Golub defendants") move for the same relief.
In the bill of particulars, plaintiffs allege, inter alia, that defendants failed to take a proper history, monitor the status of the mother and the infant plaintiff, timely and properly monitor the fetal heart tones and contraction activity, order a double setup at the time of the initial vaginal examination, appreciate fetal bradycardia and signs of fetal distress, request a neonatologist to be present at the birth, timely and properly deliver the infant plaintiff, properly prepare the plaintiff for an emergency caesarean section, call the anesthesiologist in a timely manner, and to timely perform a caesarean section.
The requisite elements of proof in a medical malpractice case are (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of injury or damage ( Amsler v Verrilli , 119 AD2d 786, 501 NYS2d 411 [2d Dept 1986]; De Stefano v Immerman , 188 AD2d 448, 591 NYS2d 47 [2d Dept 1992]). The issue of the duty owed as between physicians, and, ultimately, to the patient, is a question of law ( Lipton by Lipton v Kaye , 214 AD2d 319, 624 NYS2d 590 [1st Dept 1995]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact ( Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 853, 487 NYS2d 316; Zuckerman v New York , 49 NY2d 557, 562, 427 NYS2d 595; Sillman v Twentieth Century-Fox Film Corp. , 3 NY2d 395, 404, 165 NYS2d 498). On a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby ( Williams v Sahay , 12 AD3d 366 [2nd Dept. 2004]). To prove a prima facie case of medical malpractice, a plaintiff must establish that the defendant's negligence was a substantial factor in producing the alleged injury ( see, Derdiarian v Felix Contracting Corp. , 51 NY2d 308, 434 NYS2d 166; Prete v Rafla-Demetrious , 224 AD2d 674, 638 NYS2d 700 [2d Dept 1996]). Except as to matters within the ordinary experience and knowledge of laymen, expert medical opinion is necessary to prove a deviation or departure from accepted standards of medical care and that such departure was a proximate cause of the plaintiff's injury ( see, Fiore v Galang , 64 NY2d 999, 489 NYS2d 47; Lyons v McCauley , 252 AD2d 516, 675 NYS2d 375 [2d Dept 1998]).
In support of their motion, defendant Ninia submits, inter alia, the pleadings, the bill of particulars, deposition transcripts of defendants Ninia, Golub, and John Faicco, a copy of the plaintiffs' hospital record, and the affirmation of Henry K. Prince, M.D. Defendant Ninia testified that he is duly licensed to practice medicine in the State of New York and is board certified in the fields of obstetrics and gynecology. He stated that he is a private attending physician at St. Charles. He did not recall when he was called by the hospital on December 28, 2004. He recalled that he was told that there was a patient with a fetal bradycardia and he was needed right away. When he arrived at the hospital, he walked past the nurses station so they would know he was there. He then went into the locker room to change into scrubs. He spoke with defendant Golub who thanked him for coming in. He recalled waiting near the scrub sink outside the operating room. He scrubbed in and assisted defendant Golub in the performance of a caesarean section. During the surgery he applied fundal pressure to the abdomen, cut sutures, helped with retraction and other functions as directed by the operating surgeon. He left the operating room before defendant Golub. He went home after leaving the operating room. He stated that he never met the plaintiff and has no office records relating to the plaintiff. He stated that, before and after the delivery, he had no contact with the plaintiff or her husband. After the operation, he went home. He had no charting responsibilities, and wrote no orders or notes in the hospital record. He did not produce the operative report.
Defendant Golub testified that defendant Ninia was called to assist him with the emergency caesarean section at approximately 3:10 a.m. While he was waiting for defendant Paul to arrive, defendant Ninia was present, and defendant Ninia scrubbed in at the same time as defendant Golub. When defendant Paul arrived, both he and defendant Ninia were ready to begin the surgery. Plaintiff John Faicco testified that he recalled observing defendant Ninia approach defendant Golub in the hallway prior to the surgery and ask defendant Golub if he needed his assistance.
Dr. Prince affirms that he is duly licensed to practice medicine in the State of New York and is a board certified obstetrician and gynecologist. He opines that the limited contact, care and treatment rendered by defendant Ninia to plaintiffs Ava Faicco and Kristen Faicco was, at all times, within good and accepted medical practice, and that the injuries alleged by the plaintiffs were in no way caused or contributed to by any alleged acts or omissions by defendant Ninia. Based on the testimonies of defendants Ninia, Golub, and plaintiff John Faicco, defendant Ninia was present and ready to assist defendant Golub in a timely manner. In addition, it is Dr. Henry's opinion that defendant Ninia timely and properly performed all the duties of a surgical assistant during the caesarean section.
Defendant Ninia established his entitlement to judgment as a matter of law ( see, Starr v Rogers , 44 AD3d 646, 843 NYS2d 371 [2d Dept 2007]; Denenberg v N. Shore Univ. Hosp. , 292 AD2d 493, 739 NYS2d 191 [2d Dept 2002]; Whalen v Victory Memorial Hosp. , 187 AD2d 503 [2d Dept 1992]). Thus, the burden shifted to plaintiffs to respond with rebutting medical evidence demonstrating a departure from accepted medical procedures ( see, Baez v Lockridge , 259 AD2d 573, 686 NYS2d 496 [2d Dept 1999]).
In opposition, plaintiffs submits an affirmation of their medical expert, whose name has been redacted in accordance with Carrasquillo v Rosencrans , 208 AD2d 488, 617 NYS2d 51 (2d Dept 1994). The original unredacted affidavit has been submitted to the court for inspection under separate cover. The expert states that it is his opinion that the facts and conflicting testimony make it impossible to state that he was timely and properly in place for the commencement of the caesarean section, and it is therefore impossible to state with a reasonable degree of medical certainty that he did not contribute to a delay in the performance of the caesarean section and the infant plaintiff's injuries. He notes Nurse Petriello's testimony that she did not recall whether defendant Ninia was standing near the scrub sink prior to the surgery. However, Nurse Petriello also conceded that she was busy attending to the plaintiff. He also points to Nurse Burns' testimony that she was seated at the nurses station and did not see defendant Ninia walk by. However, she conceded that there was another way to enter the locker room which did not entail passing the nurses station. The expert's opinion failed to raise an issue of fact ( see, Alvarez v Prospect Hosp. , 68 NY2d 320, 324-5, 508 NYS2d 923). Accordingly, the motion by the Ninia defendants is granted.
The Court has conducted an in-camera inspection of the original unredacted affirmation and finds it to be identical in every way to the redacted affirmation in plaintiff's opposition papers with the exception of the redacted expert's name. In addition, the Court has returned the unredacted affirmation to the plaintiff's attorney.
Turning to the motion by the Golub defendants, they submit, inter alia, the affirmation of Hilma Yu, M.D., and the deposition testimony of non-party Gina Petriello, R.N. Dr. Yu avers that he is duly licensed to practice medicine in the State of New York and is board certified in the specialty of obstetrics and gynecology. He opines that at no point in their involvement with plaintiffs Kristen Faicco and Ava Faicco did the Golub defendants depart from the standards of acceptable medical practice, nor did they cause or contribute to any claimed injury or damage. Dr. Yu avers that plaintiff first presented to the Golub defendants on January 26, 2004 for infertility treatment. On May 12, 2004, plaintiff had an early intrauterine pregnancy with a questionable threatened spontaneous abortion. Defendant Golub recommended progesterone supplements and prometrium tablets every six hours. On May 17, 2004, plaintiff's blood progesterone level had increased. On May 19, 2004, plaintiff was seen by defendant Golub. A sonogram showed cardiac activity in a single intrauterine fetus and no sign of intrauterine bleeding. On June 2, 2004, plaintiff was seen by defendant Golub, who reported that the ultrasound showed a fetus of gestational age of 8 weeks 2 days with cardiac activity. On June 25, 2004, plaintiff was seen by defendant Golub. The fetus was at gestational age 11 weeks 4 days with a fetal heart rate of 152 beats per minute. On July 12, August 9, and September 8, 2004, plaintiff was seen by defendant Golub in the office. The fetus was growing and had a good heart beat.
On October 11, 2004, plaintiff was seen by defendant Makowski. The fetal gestational age was 27 weeks with a fetal heart rate of 156. On October 20, November 17, December 1, and December 15, 2004, plaintiff was seen by defendant Golub. The fetus was growing normally and the fetal heart rate was within normal limits. On December 22, 2004, plaintiff was seen by defendant Makowski, who noted that plaintiff's cervix was at 2 cm with 75% effacement. The gestational age was 37.5 weeks and the fetal heart rate was within normal limits. On December 27, 2004, at approximately 11:20 p.m., plaintiff's membranes spontaneously ruptured. On December 28, 2004 at 1:00 a.m., plaintiff was admitted to the labor and delivery unit at St. Charles. According to the records, Dr. Yu states that defendant Makowski was not present at St. Charles Hospital on December 28, 2004 and was not involved in the care and/or treatment of the plaintiffs on December 28, 2004. It is Dr. Yu's opinion, based on a reasonable degree of medical certainty, that defendant Makowski's pre-natal care and treatment of the plaintiff was, in all ways, appropriate and proper. At no point did defendant Makowski deviate from the standard of care in his treatment of this patient. Nothing that defendant Makowski did or failed to do caused or contributed to the plaintiffs' injury and/or damages.
At 1:02 a.m. on December 28, 2004, plaintiff was placed on an electronic fetal monitor. At 2:30 a.m., a vaginal examination revealed that the presenting part was in the vertex position, dilation was 4 cm with ruptured membranes, and the fetal heart rate was 140 beats per minute. Plaintiff requested epidural anesthesia. At 2:48 a.m., defendant Golub spoke with plaintiff, the fetal heart rate was at 150 beats per minute and contractions were between one and a half and three minutes apart. Defendant Golub requested that a call be placed to the anesthesiologist on call for the administration of an epidural to the plaintiff. At 2:59 a.m., there was evidence of fetal heart rate deceleration to 55 beats per minute. Defendant immediately began intrauterine resuscitation efforts in an attempt to increase the fetal heart rate. While defendant was attending to plaintiff, the anesthesiologist on call, defendant Paul, called the hospital. Dr. Yu notes Dr. Golub's testimony that he told the nursing staff to tell defendant Paul that he was needed right away. At 3:03 a.m., defendant Golub performed a vaginal examination and dilatation was noted at 6 cm. In addition, the fetal heart rate responded to the intrauterine resuscitation effort by increasing from 60 to 100 beats per minute and stayed between 90 and 110 until 3:06 a.m. It is Dr. Yu's opinion, based on a reasonable degree of medical certainty, that based on the responses to the intrauterine resuscitation efforts and the reassuring signs of increased fetal heart rate there was no need to call a caesarean section at this time. Further resuscitation efforts were made by defendant Golub between 3:06 and 3:09 a.m., which increased the fetal heart rate to 160 beats per minute, and there was no requirement to call a caesarean section at this time. At 3:10 a.m., defendant Golub appropriately exercised good medical judgment in calling a caesarean section based on another fetal heart rate deceleration in the context of what had transpired since 2:59 a.m. At 3:21 a.m., the plaintiff was in the operating room and defendant was ready to proceed with a caesarean section but for the administration of anesthesia. At 3:31 a.m., anesthesia was administered by defendant Paul. At 3:35 a.m., defendant Golub made the first incision, and the infant plaintiff was delivered at 3:38 a.m. Upon delivery, defendant Golub timely and appropriately transferred the care of the infant plaintiff to the neonatal unit.
It is Dr. Yu's opinion, based on a reasonable degree of medical certainty, that defendant Golub's care and treatment of the plaintiff was, in all ways, appropriate and proper. Nothing he did or failed to do caused or contributed to the patient's injury and/or damages. It is further Dr. Yu's opinion, with a reasonable degree of medical certainty, that defendants did not deviate from accepted standards of care in treating the plaintiff and nothing they did or failed to do caused injury to the patient. The injury sustained by the infant plaintiff is a known potential complication of the birth process, most likely due to unavoidable factors affecting the umbilical cord before birth. It is not the result of deviations from standard obstetrical practice.
Gina Petriello testified that she is a registered nurse and was employed at St. Charles Hospital on the date of the plaintiff's admission. She stated that she was the charge nurse from 7:00 p.m. to 7:00 a.m. She testified that every morning between 6:30 and 7:30 a.m., the on-call anesthesiologist for the day usually calls the floor and tells the charge nurse that he/she is on call for the next twenty four hours. The charge nurse then places the name of the anesthesiologist on a board at the nurses station. At the time of the call, the charge nurse updates the anesthesiologist regarding the number of patients on the unit and at what stage of delivery they may be.
The Golub defendants established their entitlement to judgment as a matter of law ( see, Starr v Rogers , supra; Denenberg v N. Shore Univ. Hosp. , supra; Whalen v Victory Memorial Hosp. , supra). Thus, the burden shifted to plaintiffs to respond with rebutting medical evidence demonstrating a departure from accepted medical procedures ( see, Baez v Lockridge . supra).
Initially, plaintiffs do not oppose the motion as to defendant Makowski. In opposition to the remainder of the motion, plaintiffs failed to raise a triable issue of fact. The plaintiffs' expert opined that defendant Golub failed to administer terbutaline or some other tocolytic to arrest the plaintiff's contractions. This was a new theory of liability which was asserted for the first time in opposition to the summary judgment motion ( see, Araujo v Brooklyn Martial Arts Academy, 304 AD2d 779, 780, 758 NYS2d 401 [2d Dept 2003]; Winters v St. Vincent's Med. Ctr., 273 AD2d 465, 711 NYS2d 892 [2d Dept 2000]; Gustavsson v County of Westchester, 264 AD2d 408, 409, 693 NYS2d 241 [2d Dept 1999]) and is rejected ( Dolan v Halpern, 73 AD3d 1117, 902 NYS2d 585 [2d Dept 2010]; Golubov v Wolfson, 22 AD3d 635, 801 NYS2d 914 [2d Dept 2005]). In addition, the expert conceded that the resuscitation measures to increase the fetal heart rate, and the administration of oxygen and intravenous hydration undertaken by defendant Golub were accepted practices in the obstetrical community under those circumstances. He also did not dispute defendant Golub's determination that an emergency caesarean section was necessary, and did not address defendant's performance of the actual procedure. Moreover, inasmuch as Nurse Petriello's testimony established that posting the name of the on-call anesthesiologist on a daily basis was a hospital nursing function, the Court finds, as a matter of law, that it is not the duty of the obstetrician to be aware of the specific anesthesiologist to call for an emergency surgical procedure.
Defendant Paul opposes the motion by the Golub defendants on the ground that he reserves the right to assert, at the time of trial, his common law or statutory rights against the Golub defendants, including those afforded under CPLR Article 16 and General Obligations Law Article 15. The Court declines to entertain defendant Paul's request in that was not served as a motion on notice pursuant to CPLR 2211, 2212(a).
In sum, the motions by the Ninia defendants and the Golub defendants dismissing the action and all counterclaims as asserted against them are granted with prejudice. The plaintiffs' claims against the moving defendants, dismissed herein, are severed and the plaintiffs' remaining claims shall continue.
Serve a copy of this Order upon the Calendar Clerk.