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Harper v. St. Luke's Hospital

Appellate Division of the Supreme Court of New York, First Department
Feb 29, 1996
224 A.D.2d 350 (N.Y. App. Div. 1996)

Opinion

February 29, 1996

Appeal from the Supreme Court, Bronx County (Barry Salman, J.).


It is alleged that physicians discovered meconium in the amniotic fluid of Jennifer Denise Harper during the birth of her daughter Tara Nicole Harper at defendant and third-party plaintiff St. Luke's Hospital ("hospital"); defendant and third-party defendant Oster, an attending obstetrician on call at the time, was notified of this event; Dr. Oster assented to a proposal that the Harper infant be delivered vaginally so long as labor progressed quickly and the fetal heartbeat remained steady; defendant and third-party plaintiff Giegis, a hospital obstetrics resident, subsequently delivered the infant vaginally. In the principal action, plaintiffs seek damages for, inter alia, severe brain damage and other personal injuries purportedly incurred by the infant through the failure to conduct a cesarean section upon Jennifer Harper immediately upon discovery of the meconium. In the third-party action, third-party plaintiffs seek contribution and indemnification from Dr. Oster.

Dr. Oster moved for summary judgment dismissing the complaint and the third-party complaint against him. Defendants and third-party plaintiffs cross-moved for summary judgment dismissing the complaint. In their responding papers, plaintiffs opposed the motion by defendants and third-party plaintiffs, but voluntarily discontinued their action against defendant and third-party defendant Oster.

We agree with the trial court's finding that unresolved questions of fact preclude the granting of summary judgment to movant and cross-movants. A medical affidavit provided by plaintiffs, contending that the failure to deliver the infant immediately upon discovery of the meconium was a departure from contemporary medical standards and caused the infant's injuries, raises questions of fact precluding summary judgment against Dr. Giegis or the hospital. For purposes of the third-party action, this raises additional questions to which the record provides no answer, e.g., the propriety of Dr. Oster's purported assent to the plan of action, the time at which that assent was given, and the precise nature of Dr. Oster's on-call duties vis-a-vis residents and service patients at the hospital ( see, Dillon v Silver, 134 A.D.2d 159 [1st Dept 1987]). Plaintiffs' voluntary discontinuation of the primary action against Dr. Oster does not diminish the significance of these latter questions in the third-party action. Given these issues, summary judgment is inappropriate at this time.

Concur — Murphy, P.J., Milonas, Nardelli and Mazzarelli, JJ.


Summaries of

Harper v. St. Luke's Hospital

Appellate Division of the Supreme Court of New York, First Department
Feb 29, 1996
224 A.D.2d 350 (N.Y. App. Div. 1996)
Case details for

Harper v. St. Luke's Hospital

Case Details

Full title:EDDIE A. HARPER et al., Respondents, v. ST. LUKE'S HOSPITAL et al.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 29, 1996

Citations

224 A.D.2d 350 (N.Y. App. Div. 1996)
638 N.Y.S.2d 621

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