Opinion
No. 4268/12.
08-08-2014
Megan HARTMAN and Christopher Hartman, Plaintiffs, v. Keith B. LASCALE, M.D., Defendant.
William P. Weininger, Esq., Birbrower & Bedlock, P.C., New City, for Plaintiffs. Stewart G. Milch, Esq., Martin Clearwater & Bell, LLP, New York City, for Defendant.
William P. Weininger, Esq., Birbrower & Bedlock, P.C., New City, for Plaintiffs.
Stewart G. Milch, Esq., Martin Clearwater & Bell, LLP, New York City, for Defendant.
Opinion
JAMES D. PAGONES, J.
Defendant moves for an order, pursuant to CPLR 3212, dismissing plaintiffs' complaint.
The following papers were read:
| Notice of Motion–Affirmation–Exhibits A–L | 1–15 |
| Affidavit of Service | |
| Memorandum of Law in Support | 16 |
| Affirmation in Opposition–Exhibit List–Exhibits A–K | 17–30 |
| Affidavit of Service | |
| Memorandum of Law in Opposition–Affidavit of Service | 31–32 |
| Reply Affirmation–Affidavit of Service | 33–34 |
Upon the foregoing pagers, the defendant's motion is decided as follows:
By way of background, plaintiff Megan Hartman first learned that she was pregnant with her daughter on September 26, 2009. She saw an obstetrician, Dr. Aguwa, at the Mid–Hudson Medical Group on September 29, 2009. Dr. Aguwa explained to Ms. Hartman that she should be seen by a high-risk physician because she was diabetic. At her next appointment with Dr. Aguwa, on October 10, 2009, Dr. Aguwa referred Ms. Hartman to the defendant. Two weeks later, Ms. Hartman went to the defendant's office and an ultrasound was performed. Defendant advised Ms. Hartman that everything looked good and to return in two weeks. Ms. Hartman claims during this visit that she informed the defendant about a family history of spina bifida. Two weeks passed and she returned to the defendant, who did another ultrasound and advised her that everything looked good. During the course of her pregnancy, Ms. Hartman was continuously advised that the baby was developing well. On May 18, 2009, Ms. Hartman was brought to the hospital with elevated blood-pressure and a cesarean section was ultimately performed by Dr. Aguwa on May 20th. The plaintiffs' daughter, Paisley, was diagnosed with caudal regression syndrome. In Paisley, the condition manifested itself by her being born without a sacrum and with severe sacral nerve damage. Paisley has been subsequently treated by several physicians, an orthopedist, a neurologist and a urologist.
The plaintiffs claim that the defendant departed from the accepted standard of care in negligently reading and interpreting plaintiff Megan Hartman's sonograms as normal. The plaintiffs allege that if they had known of the fetal abnormalities, they would have terminated the pregnancy. In support of his motion, the defendant, Dr. Lascale, alleges that summary judgment is appropriate in an action, such as this, where compensable damages are limited to the extraordinary costs associated with raising a disabled child during his or her minority and the plaintiffs have failed to incur, nor will they in the future, incur extraordinary costs.
On a motion for summary judgment, the test to be applied is whether triable issues of fact exist or whether on the proof submitted judgment can be granted to a party as a matter of law (see Andre v. Pomeroy, 35 N.Y.2d 361 [1974] ). The movant must set forth a prima facie showing of entitlement to judgment as matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986] ). Once the movant sets forth a prima facie case, the burden of going forward shifts to the opponent of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ).
While no cause of action may be maintained on behalf of an infant for “wrongful life”, i.e., that but for the negligence of the defendant he or she would never have been born, a parent may maintain a claim for the increased financial obligation arising from the extraordinary medical treatment rendered the child during minority (Bani–Esraili v. Lerman, 69 N.Y.2d 807 [1987] ). However, damages cannot be based on mere speculation, conjecture, or surmise and, when sought in the form of extraordinary expenses related to caring for a disabled child, they must be necessitated by and causally connected to the child's condition (see Mickens v. LaSala, 8 AD3d 453 [2nd Dept 2004] leave to appeal denied by 4 NY3d 705).
The Second Department, Appellate Division, recently decided a somewhat factually similar action entitled Mayzel v. Moretti, 105 AD3d 816 (2nd Dept 2013). The Court therein found that:
“Here, Moretti [Dr. Michael Moretti] and RUMC [Richmond University Medical Center] satisfied their initial burden of demonstrating their prima facie entitlement to judgment as a matter of law by presenting affidavits from medical experts establishing that Moretti did not depart from the applicable standard of care in interpreting the sonogram, and by tendering evidence in admissible form establishing that the plaintiffs' son's medical and developmental needs have been and continue to be paid for by Medicaid at no cost to the plaintiffs (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986];Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985];Mickens v. LaSala, 8 AD3d at 453). ”
Accordingly, while defendant tenders evidence, in the form of plaintiffs' deposition testimonies, that the Hudson Health Plan, through Medicaid, has and continues to cover Paisley, defendant fails to present an affidavit or affidavits from a medical expert or experts indicating that he did not depart from the applicable standard of care. Therefore, in light of the Mayzel decision, this Court is bound to find that defendant has not established his prima facie entitlement to judgment as a matter of law (see Mayzel v. Moretti, 105 AD3d 816 [2nd Dept 2013] ).
Since defendant has failed to establish his prima facie entitlement to judgment as a matter of law, the sufficiency of the papers submitted in opposition to the motion need not be considered (see Coscia v. 938 Trading Corp., 283 A.D.2d 538 [2nd Dept 2001] ).
Defendant's motion for summary judgment is denied. Counsel are directed to appear for a further pre-trial conference on October 8, 2014 at 10:00 a.m. Adjournments are only granted with leave of the Court.
The foregoing constitutes the decision and order of the Court.