Opinion
16167/06.
May 19, 2010.
DECISION AND ORDER
Papers Read on this Motion:
Defendant's Notice of Motion 04 Defendant's Expert Dr. Davidson's Affirmation XX Defendant's Expert Dr. Koenigsberg's Affirmation XX Defendant's Expert Dr. Eddleman's Affirmation XX Plaintiffs' Opposition XX Plaintiffs' Legal Expert Affirmation in Opposition XX Plaintiffs' Expert Affirmation of Bruce Halbridge, XX M.D. Plaintiffs' Affidavits XX Defendant's Affirmation in Reply XX Defendant's Memorandum of Law XX Dr. Koenigsberg's Reply Affirmation XXThe Defendant Finz Finz, P.C. moves for an order pursuant to CPLR § 3212 granting it summary judgment dismissing the Plaintiffs' complaint.
In this action, the infant Plaintiff Kevin Robert Healy and his parents Plaintiffs Patricia Healy and Kevin Healy seek to recover damages for legal malpractice. They allege that the Defendant Finz Finz's negligent representation of them in their underlying medical malpractice action against Winthrop University Hospital, Steven Klein, M.D., Robert Allen Frank, M.D., Milton Eichler, M.D., Ira Joel Spector, M.D., Madonna Physicians Services, P.C. a/k/a Madonna Perinatal Services, Jonathan Davis, M.D., Pramod Narula, M.D., Paul T. Twist, Jr., D.O. and Renu Aggarwal, M.D. caused a failure to name Dr. Faustin and Ira J. Spector, M.D. and Steven J. Klein, M.D., P.C. as Defendants; their complaint against Defendant Dr. Klein to be dismissed via summary judgment; and, a directed verdict dismissing the complaint against Dr. Spector, and that but for Finz Finz's negligence, they would have recovered in that action.
The Defendant Finz Finz seeks summary judgment dismissing the complaint. They allege that they were not negligent in their representation of the Plaintiffs and that in any event, assuming, arguendo , they were, the Plaintiffs could not possibly have recovered of any of the Defendants in the underlying action due to a clear lack of proximate cause.
"On a motion for summary judgment pursuant to CPLR § 3212, the proponent 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." Sheppard-Mobley v King, 10 AD3d 70, 74 (2d Dept. 2004), aff'd. as mod., 4 NY3d 627 (2005), citing Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986); Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers." Sheppard-Mobley v King, supra, at p. 74; Alvarez v Prospect Hosp., supra; Winegrad v New York Univ. Med. Ctr., supra. Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact. Alvarez v Prospect Hosp., supra, at p. 324. The evidence presented by the opponents of summary judgment must be accepted as true and they must be given the benefit of every reasonable inference. See, Demishick v Community Housing Management Corp., 34 AD3d 518, 521 (2d Dept 2006), citing Secof v Greens Condominium, 158 AD2d 591 (2d Dept 1990).
"'In order to sustain a claim for legal malpractice, a Plaintiff must establish both that the Defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a Plaintiff, and that the Plaintiff would have succeeded on the merits of the underlying action but for the attorney's negligence.'" Leder v Spiegel, 9 NY3d 836, 837 (2007), cert. den., 128 S. Ct. 1696 (2008), quoting AmBase Corp. v Davis Polk Wardwell, 8 NY3d 428, 434 (2007); Dupree v Voorhees, 68 AD3d 810 (2d Dept 2009); see also, Leone v Silver Silver, LLP, 62 AD3d 962 (2d Dept 2009). "To establish causation, at Plaintiff must show that he or she would have prevailed in the underlying action but for the lawyer's negligence." Rudolf v Shayne, Dachs, Stanisci, Corker Sauer, 8 NY3d 438, 442 (2007). "To succeed on their motion for summary judgment, the Defendants [are] required to establish, through the submission of evidentiary proof in admissible form, that the Plaintiff is unable to prove at least one of the essential elements of the cause of action." Leone v Silver Silver, LLP, supra, citing Suydam v O'Neill, 276 AD2d 549 (2d Dept 2000); Ostriker v Taylor, Atkins Ostrow, 258 AD2d 572 (2d Dept 1999), l v den., 93 NY2d 809 (1999). To defeat an attorney's application for summary judgment dismissing a claim sounding in legal malpractice, a Plaintiff need only establish the existence of a material issue of fact as to whether he or she would have prevailed in the underlying action absent the Defendant attorney's negligence. Siciliano v Forchelli Forchelli, 17 AD3d 343, 345 (2nd Dept. 2005), citing Shopsin v Siben Siben, 268 AD2d 578 (2d Dept 2000); Budget Installment Corp. v Levy, Ehrlich Kronenberg, 259 AD2d 649 (2d Dept 1999). Essentially, they need to establish that a trial within a trial is warranted.
"To establish a prima facie case of liability for medical malpractice, a Plaintiff must prove that the Defendant deviated from accepted practice, and that such deviation proximately caused his or her injuries." Dehaarte v Ramenovsky, 67 AD3d 724, 725 (2d Dept 2009), citing Novik v Godec, 58 AD3d 703 (2d Dept 2009); Monroy v Glavas, 57 AD3d 631 (2d Dept 2008); Rabinowitz v Elimian, 55 AD3d 813 (2d Dept 2008); see also, Ellis v Eng, 70 AD3d 887 (2d Dept 2010). "To establish proximate cause, the Plaintiff must present 'sufficient evidence from which a reasonable person might conclude that it was more probable than not that' the Defendant's deviation was a substantial factor in causing the injury." Alicea v Liguori, 54 AD3d 784, 785 (2d Dept 2008), quoting Johnson v Jamaica Hosp. Med. Ctr., 21 AD3d 881, 883 (2d Dept 2005), citing Hilton v Sprain Brook Manor Nursing Home, 253 AD2d 852 (2d Dept 1998), l v den., 92 NY2d 818 (1999). The Plaintiff's expert need not quantify "'the extent to which the Defendant's act or omission decreased the Plaintiff's chance of better outcome or increased [the] injury, as long as evidence is presented from which the jury may infer that the Defendant's conduct diminished the Plaintiff's chance of a better outcome or increased the injury.'" Alicea v Liguori, supra, at p. 786, quoting Flaherty v Fromberg, 46 AD3d 743 (2d Dept 2007), citing Barbuto v Winthrop University Hosp., 305 AD2d 623, 624 (2d Dept 2003); Wong v Tang, 2 AD3d 840, 841 (2d Dept 2003); Jump v Facelle, 275 AD2d 345, 346 (2d Dept 2000), lv den., 98 NY2d 612 (2002).
"On a motion for summary judgment dismissing the complaint in a medical malpractice action, a Defendant physician has the burden of establishing the absence of any departure from good and accepted medical practice, or, if there was a departure, that the Plaintiff was not injured thereby." Shectman v Wilson, 68 AD3d 848 (2d Dept 2009), citing Murray v Hirsch, 58 AD3d 701 (2d Dept 2009), lv den., 12 NY3d 709 (2009); Shahid v New York City Health Hospitals Corp., 47 AD3d 800 (2d Dept 2008); Alvarez v Prospect Hosp., 68 NY2d 320 (1986); see also, Ellis v Eng, supra. "[B]are allegations which do not refute the specific factual allegations of medical malpractice in the bill of particulars are insufficient to establish entitlement to judgment as a matter of law." Grant v Hudson Valley Hosp. Center, 55 AD3d 874 (2d Dept 2009), citing Berkey v Emma, 291 AD2d 517, 518 (2d Dept 2002); Drago v Chung Ho King, 283 AD2d 603, 603-604 (2d Dept 2001); Terranova v Finklea, 45 AD3d 572 (2d Dept 2007); Kuri v Bhattacharya, 44 AD3d 718 (2d Dept 2007).
If the moving Defendant meets his burden, "[i]n opposition, a Plaintiff must submit the affidavit of a physician attesting to a departure from good and accepted practice, and stating the physician's opinion that the alleged departure was a competent producing cause of the Plaintiff's injuries." Shectman v Wilson, supra, citing Sweezey v Montague Rehab Pain Management, P.C., 59 AD3d 431 (2d Dept 2009); Murray v Hirsch, supra; Shahid v New York City Health Hospitals Corp., supra; see also, Ellis v Eng, supra. "[G]eneral allegations of medical malpractice which are conclusory in nature and unsupported by competent evidence tending to establish the elements of medical malpractice" do not suffice. Shectman v Wilson, supra, citing Alvarez v Prospect Hosp., supra; Shahid v New York City Health Hospitals Corp., supra; see also, Diaz v New York Downtown Hosp., 99 NY2d 542 (2002); Romano v Stanley, 90 NY2d 444 (1997); Amatulli by Amatulli v Delhi Const. Corp., 77 NY2d 525 (1991). The Plaintiff's expert must set forth the medically accepted standards or protocol and explain how it was departed from. Geffner v North Shore University Hosp., 57 AD3d 839, 842 (2d Dept 2008), citing Mustello v Berg, 44 AD3d 1018, 1019 (2d Dept 2007), lv den., 10 NY3d 711 (2008); Behar v Coren, 21 AD3d 1045, 1047 (2d Dept 2005), lv den., 6 NY3d 705 (2006); LaMarque v North Shore Univ. Hosp., 227 AD2d 594, 594-595 (2d Dept 1996). And, the Plaintiff's expert must address all of the key facts relied on by the Defendant's expert. See, Kaplan v Hamilton Medical Associates, P.C., 262 AD2d 609 (2d Dept 1999); see also, Geffner v North Shore University Hosp., supra; Rebozo v Wilen, 41 AD3d 457 (2d Dept 2007).
"Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting expert opinions . . . Such credibility issues can only be resolved by a jury." Feinberg v Feit, 23 AD3d 517, 519 (2d Dept 2005), citing Barbuto v Winthrop University Hosp., supra; Halkias v Otolaryngology-Facial Plastic Surgery Associates, P.C., 282 AD2d 650 (2d Dept 2001); see also, Roca v Perel, 51 AD3d 757, 759 (2d Dept 2008); Graham v Mitchell, 37 AD3d 408 (2d Dept 2007).
The pertinent facts concerning the underlying medical malpractice action are as follows:
At the end of March 1994, the Plaintiff Mrs. Healy learned that she was carrying triplets, two of which were sharing a placenta, "the fetus" and "the infant Plaintiff." Her doctor referred her to Defendant Madonna Perinatal Services ("Madonna"). Defendant Drs. Klein and Faustin were employed by Madonna. They were also both part of the private medical practice of Ira J. Spector and Steven J. Klein, M.D. P.C., as were Drs. Spector and Frank. Both Madonna and Spector and Klein, P.C., cared for Mrs. Healy.
An ultrasound performed by Dr. Klein on July 29, 1994 at Madonna revealed that the fetus with whom the infant Plaintiff shared a placenta was very small and had a disturbed blood flow. Dr. Klein assessed that the fetus was not likely to survive and so advised Mrs. Healy. The ultrasound also revealed that Mrs. Healy's cervix was open and so Dr. Klein admitted her to Winthrop Hospital on July 31, 1994 where he performed a cerclage to close her cervix. Mrs. Healy was discharged on August 12, 1994 and put on bed rest for the remainder of her pregnancy. She was to be visited at home regularly by Madonna nurses. An ultrasound done by Dr. Faustin on August 25, 1994 at Madonna revealed that the fluid surrounding all of the fetuses had improved. A home examination by a Madonna nurse on September 8, 2004 detected three fetal heartbeats. The next day, September 9, 1994, Mrs. Healy was examined by Dr. Faustin at Madonna and the ultrasound revealed that one of the fetuses had died.
The next day, September 10, 1994, Dr. Klein examined Mrs. Healy at his practice's office. A test for placental dysfunction revealed that the fetus with whom the infant Plaintiff shared a placenta had died. Biophysical profiles performed for the first time of the remaining fetuses were normal. Mrs. Healy was instructed to remain on bed rest. Madonna nurses were to perform home visits to assess the two surviving fetuses via heart rate studies and serial ultrasounds.
A visit by Madonna nurses on September 12, 2004 revealed normal heart rates as well as biophysical profiles. On September 13, 2004, Mrs. Healy began having contractions and was admitted to Winthrop Hospital by Dr. Klein. She was also examined by Dr. Spector. Dr. Klein deemed it too early to deliver the babies because Mrs. Healy was only 28 weeks pregnant and so he sought to prevent contractions thereby delaying delivery. On September 20, 1994, Mrs. Healy went into pre-term labor and delivered two babies and the dead fetus by cesarean section by Dr. Frank.
A cerebral sonogram of the infant Plaintiff on September 22, 1994 revealed periventricular leukomalacia ("PVL") evidenced by cysts on his brain. Subsequent cerebral sonograms performed on October 18, 1994, November 4, 1994 and November 8, 1994 revealed no significant changes to the PVL cysts.
The Plaintiffs retained Finz Finz to represent them. The underlying medical malpractice action against Winthrop University Hospital, Steven Klein, M.D., Robert Allen Frank, M.D., Milton Eichler, M.D., Ira Joel Spector, M.D., Madonna Physicians Services, P.C. a/k/a Madonna Perinatal Service, Jonathan Davis, M.D., Pramod Narula, M.D., Paul F. Twist, Jr., D.O., and Renu Aggarwal, M.D. in Supreme Court was commenced on March 19, 1997. The Defendants moved for summary judgment which was granted with the exception of Dr. Spector via decision dated November 1, 1999. An appeal was taken on the dismissals against Drs. Frank, Klein and Aggarwal and via decision dated October 15, 2001, the Appellate Division affirmed. Healy v Klein, 287 AD2d 541 (2d Dept 2001). The trial proceeded against Dr. Spector in which the Plaintiffs allege that he was negligent in failing to deliver the fetus on September 13, 1994 when Mrs. Healy presented with contractions. Dr. Frederick Gonzalez, a Board Certified Maternal-Fetal Medicine Obstetric/Gynecological doctor, testified that the infant Plaintiff was placed in an hostile environment when the twin with whom he shared the placenta died. More specifically, he testified:
"[T]he delivery should have been accomplished when she came in in premature labor on September 13 for a variety of reasons. One, clearly there was, for lack of a better term, a hostile environment going on. The placenta through whatever process clearly had not supplied [the fetus] with the nutrition and the oxygenation it needed. That process was ongoing. So clearly there was a continuous process. In addition, number one, the proper term is it's degrading in utero, its being reabsorbed. It's not the same as being born alive and then decomposing. It's not the same mechanism but it is losing, it is reabsorbing, and that releases a number of toxins into circulation. So, again, it creates a hostile environment."
He further testified that trying to stop Mrs. Healy's labor "was contraindicated in this case and therefore a departure, because, again, you are prolonging a pregnancy that is in danger, and there's a hostile environment going on, there's a dead baby there, there's evidence of sharing the placenta, so therefore, you're putting the other baby at risk, and therefore, you should not prolong this pregnancy." He testified that the infant Plaintiff's hostile environment was a direct and proximate cause of the infant Plaintiff's injury. Nevertheless, Dr. Gonzalez conceded that the infant Plaintiff's brain insult could have occurred virtually simultaneously with the death of the fetus' with whom he shared a placenta, in which case, the only thing that would have been accomplished by delivery by Dr. Spector on September 13th was the birth of premature babies: The infant Plaintiff's brain damage would have been the same.
Similarly, Dr. Novak, a Board Certified Pediatric Psychiatrist and Neurologist with a speciality in Child Neurology and Neurophysiology, testified that the infant Plaintiff sustained "damage" in utero "as a result of Kevin's sharing the placental circulation with his twin who had died prior to his delivery" and that Kevin's twin's death had an "adverse affect" on Kevin. As for the cause of the infant Plaintiff's PVL, he testified:
"I believe there are several reasons why blood flow to the white matter in [the infant Plaintiff] must have been decreased during the time he was sharing the placenta with his dead twin. The reasons include release of certain chemicals that are called cytosine from the dead tissue of the fetus which would gain direct entry into [the infant Plaintiff's] circulation through the placenta, and release of other vasoactive substances, and this must have reduced the blood pressure in [the infant Plaintiff] that would necessarily reduce the amount of blood flow going to his brain. The other possible explanation is that there may have been some blood loss from [the infant Plaintiff's] circulation directly to that of his twin which would further compromise his ability to provide blood flow to the brain."
He testified that toxic substances were produced by the fetus with whom the infant Plaintiff shared a placenta. Nevertheless, like Dr. Gonzalez, Dr. Novak also testified that the infant Plaintiff's brain insult could have occurred within five minutes of the death of the fetus with whom he shared a placenta and that he could never know when that brain insult occurred.
Dr. Spector obtained a directed verdict pursuant to CPLR § 4401. The Appellate Division affirmed, stating:
"The Plaintiffs' experts admitted that there was no way of knowing when the injury occurred to the infant Plaintiff, and that it could have occurred before the Defendant's treatment. Thus, the evidence was insufficient for a reasonable person to conclude that it was more probably than not that the injury was caused by the Defendant. Any such finding would be pure speculation." See Healy v Spector, supra.
In this action, the Plaintiffs allege, inter alia, that Finz Finz was negligent in not naming Dr. Faustin and Ira Spector and Steven Klein, M.D., P.C. as Defendants in the underlying action, alleging improper theories of liability, failing to retain proper medical experts, failing to adequately oppose summary judgment motions and properly try the case and releasing Madonna Perinatal Services Inc. More specifically, they allege that Finz Finz should have alleged that the Defendants' negligence occurred when they failed to assess the risks and danger to the infant Plaintiff when the fetus with whom he shared a placenta died and failing to so advise them and recommend delivery of the infant Plaintiff stat. The Plaintiffs also allege that Finz Finz was negligent in not naming Dr. Faustin, who first saw Mrs. Healy following the death of the fetus, as well as his practice, Spector Klein, M.D., P.C. as Defendants. Their expert alleges:
"The injury to the white matter of [the infant Plaintiff] was due to the lack of oxygen being provided therein while he was in utero and that the consequences of that lack of oxygen was acerbated by the cumulative effect of cytokines and oxygen free radical substances increasing the inflammation to said white matter resulting in the [PVL] which he sustained which could have been avoided or reduced with timely delivery on 9/9/94 up to 9/13/94 thus making the deviations from accepted medical malpractice a competent, contributing cause of said injury.
The Plaintiffs allege that Finz Finz's errors deprived their expert medical witness of the opportunity to testify as to how the care provided to Mrs. Healy from September 9, 1994 until September 13, 1994 affected the infant Plaintiff. More specifically, the Plaintiffs allege that at the trial, the Plaintiffs' expert witness should have testified that the Defendants' failure to deliver the infant Plaintiff between September 9th and 12th was a deviation from good and accepted medical practice and proximately caused the infant Plaintiff's brain injury. The Plaintiffs similarly allege that Finz Finz failed to advance the correct theory of liability against Dr. Klein, i.e., that his failure to advise them of the continuing danger to the infant Plaintiff on September 10, 1994 and to advise them of the preferred option of delivering the remaining twins constituted negligence and resulted in the infant Plaintiff's brain injury and that that failure enabled Dr. Klein to obtain summary judgment dismissing the complaint.
In support of their motion, Finz Finz maintain that eight potential expert witnesses with whom they consulted concurred that the infant Plaintiff's delivery upon the death of the fetus with whom he shared a placenta was contraindicated because of the risks of premature delivery and that the risks in fact far outweighed the potential harm of maintaining the pregnancy. They maintain that the experts they ultimately found, Dr. Frederick Gonzalez and Dr. Gerald Novak, could not pin-point when the infant Plaintiff sustained his brain insult as a result of which proximate cause could not be established vis a vis any of the medical personnel.
In support of their motion, the Defendants have submitted, inter alia, the affirmation of Dr. Keith A. Eddleman, who is Board Certified in Obstetrics and Gynecology and Maternal-Fetal Medicine. Having reviewed the pertinent medical records and legal documents, he affirms that all of the medical personnel properly cared for Mrs. Healy and so she did not have a meritorious cause of action. Like Drs. Gonzalez and Novak, he also affirms that it is impossible to determine when the infant Plaintiff sustained the brain injury but that it most likely happened upon the death of the fetus with whom he shared a placenta, in which case even a delivery on September 9, 1994 would not have avoided his brain insult. He reasons, among other things, that the infant Plaintiff's brain cysts were fully formed on September 22, 1994 and that since they take two to six weeks to form, the brain insult had to have occurred when the fetus with whom the infant Plaintiff shared a fetus died and when that was discovered, the damage was immediately done, thereby eradicating any possible finding of proximate cause vis a vis any of the medical personnel.
Finz and Finz has also submitted the affirmation of Dennis Davidson, M.D. who is Board Certified in Pediatrics and Neonatal-Perinatal Medicine. Having reviewed the pertinent medical records and legal documents, he also affirms that all of the medical personnel properly cared for Mrs. Healy and so the Plaintiffs did not have a meritorious cause of action. More importantly, like the other doctors, he also affirms that it is impossible to determine when the infant Plaintiff sustained the brain injury but that it most likely happened upon the death of the fetus with whom he shared a placenta, in which case even a delivery on September 9, 1994 would not have avoided his brain insult. He further opines that delivery on September 9, 1994, September 10, 1994 and September 13, 1994 was not an option due to the risks associated with premature delivery. He also agrees that given the fully formed cysts found on September 22, 1994, the infant Plaintiff's brain insult had to have occurred two weeks earlier, i.e., on or about September 8, 1994 and so delivery following that date would not have averted the infant Plaintiff's brain insult.
Finz Finz has also submitted an affirmation by Dr. Mordecai Koeningsberg, a Board Certified Radiologist. Having reviewed the pertinent medical records and legal documents, he, too, affirms that all of the medical personnel properly cared for Mrs. Healy and so the Plaintiffs did not have a meritorious cause of action. He also affirms that it is impossible to determine when the infant Plaintiff sustained the brain injury but that it most likely happened upon the death of the fetus with whom he shared a placenta, in which case even a delivery on September 9, 1994 would not have avoided his brain insult. He also opines that the infant Plaintiff sustained his brain insult on September 8, 1994, also relying on the sonogram taken September 22, 1994 which revealed fully formed cysts which had to have been caused on or about September 8, 1994 when the fetus with whom the infant Plaintiff shared a placenta died.
By establishing the Plaintiffs' inability to establish the existence of an issue of fact regarding proximate cause in the underlying medical malpractice action, Finz Finz has established its entitlement to summary judgment, thereby shifting the burden to the Plaintiffs to establish the existence of a material issue of fact.
In opposition, the Plaintiffs have submitted the affidavit of Dr. Bruce Halbridge, who is Board Certified in Obstetrics and Gynecology. His practice includes caring for women with high risk pregnancies. Having reviewed the pertinent medical records and legal documents, he opines to a reasonable degree of medical certainty that Drs. Klein and Faustin, along with Madonna Perinatal Services and Spector Klein, deviated from accepted medical standards by failing to inform the Plaintiff parents of the risks to the infant Plaintiff who shared a placenta with the fetus who had died; by maintaining the pregnancy for the benefit of the female fetus, Kelly; and, in contravention of what would have been the wishes of the parents, in failing to delivery the pregnancy after the fetus' demise. He opines that the infant Plaintiff was harmed as a result of being maintained in a hostile environment which was a competent producing cause of his brain injury, known as PVL. More specifically, he faults the medical personnel, Dr. Faustin in particular, for not discussing the option of a cesarean section with the Plaintiff parents as well as the associated risks of continuing the pregnancy on September 9, 1994 when the fetus' death was confirmed. He faults Dr. Klein for not recording specific details when he conducted the remaining fetus' biophysical profiles on September 10, 1994. He opines that:
"the injury to [the infant Plaintiff's] brain began but certainly did not end with the fetus' demise. [He explains that] if one were to accept Defendants' argument that the injury to [the infant Plaintiff's] brain was a large and sudden drop in blood pressure, that is an ischemic stroke, sufficient to explain in is totality the white matter injury suffered by [the infant Plaintiff], then his biophysical profile on September 10 and again on September 12, 1994 would not have been normal. There should have been some evidence of the event seen in that profile."
He opines that even the fetus' autopsy report confirms that his affect on the infant Plaintiff after his demise was a continuing progressive one. He opines that the infant Plaintiff should have been delivered on September 9, 1994 or at least no later than September 13, 1994. As for the cysts, he opines that they can form in as little as a week (as Dr. Klein testified) and so they could have formed as late as September 15, 1994, not necessarily at the time of the fetus' death. Dr. Halbridge also explains that if the brain injury was as Finz Finz maintains an instantaneous catastrophic event, the infant Plaintiff's biophysical profiles would not have been normal.
In sum, he opines:
"based on a reasonable degree of medical certainty, that the obstetricians caring for Mrs. Healy and her unborn children, deviated from accepted standards of care in September 1994 by failing to explain to the parents the risk of injury to [the infant Plaintiff] by maintaining him in utero with a sharing of circulation with his deceased twin with whom he shared a placenta so that they could make the decision of what was in the best interest of their family; in failing to deliver the remaining viable fetuses, including [the infant Plaintiff], after the demise of [the fetus] was known; and in failing to perform serial biophysical profiles to determine the status of the fetuses, most significantly [the infant Plaintiff].
As for causation, he explains:
"that any drop in blood pressure that may have been experienced by [the infant Plaintiff] at the time of [the fetus'] death was not of such a magnitude to be the sole cause of the brain white matter injury that has left him brain injured and with the disability of his severe cerebral palsy. There is no evidence he had the abnormal anastomosis required for the twin to twin transfusion which would cause such a precipitous drop in blood pressure. The injury to [the infant Plaintiff] was a cumulative one which occurred over the eleven days he remained in the hostile intrauterine environment wherein he was attached to the fetal body of [the] dead [fetus] which was being digested by enzymes with releases of the byproducts of said digestion into [the infant Plaintiff's] circulation."
Dr. Halbridge specifically faults Finz Finz for failing to name Dr. Faustin and the corporate practice of Spector Klein, M.D., P.C. as Defendants; to argue that Madonna was vicariously liable for the actions of Drs. Klein and Faustin; to claim that Dr. Klein and Dr. Faustin, who directed the management of Mrs. Healy's pregnancy, were negligent in failing to inform the Healys of the risks, alternatives and benefits of prolonging the pregnancy after the fetus' death and allowing them to determine whether to deliver the infant Plaintiff or not, and thereafter, in failing to deliver the infant Plaintiff. He further opines that Finz Finz failed to adequately address the issue of causation with its experts so that it could respond to the Defendants' defense of no causation.
The Plaintiffs have also submitted the affirmation of Joseph Awad, Esq. He notes that Dr. Halbridge's affidavit lays to rest Finz Finz's claim that the Plaintiffs could not possibly have established proximate cause against the Defendant medical professionals had their case been properly handled. This, alone is sufficient to defeat the Defendant Finz Finz's application. Mr. Awad notes the Defendants' failure to name all of the potentially liable Defendants, as well as its failure to bring that very fact to the Healys' attention before the statute of limitations expired. He notes that Finz Finz opposed Spector's summary judgment motion on the grounds that he failed to realize the importance of removing the dead fetus but failed to oppose Dr. Klein's motion on those grounds, resulting in a gross error as that theory applied to only Dr. Klein and not Dr. Spector. He also notes that Finz Finz did not seek experts until approximately December 13, 1999, which was two and a half years after the complaint was filed, two years after the bills of particulars were served, over a year after all depositions were completed, six months after the motions for summary judgment were submitted and two months after Justice Franco dismissed the medial malpractice action against all Defendants except for Dr. Spector and that an expert was not consulted with until March 13, 2000, six weeks before the trial. This, attorney Awad opines needless to say resulted in combobulated theories of liability being advanced.
In conclusion, attorney Awad opines that Finz Finz was negligent in not filing a Certificate of Merit; failing to consult with experts for two and one-half years after filing a complaint; failing to consult with experts more than one and one-half years after filing the bill of particulars; failing to consult with experts until nine months after completing all depositions and discovery; waiting until summary judgment motions were made and then in a hasty fashion trying to find experts to simply oppose the summary judgment motions; opposing summary judgment with the correct theory against the wrong doctors and failing to use that correct theory against the appropriate doctors; failing to ever institute an action against Dr. Faustin or his group Spector Klein, M.D., P.C. when Finz Finz's own medical expert testifies that Faustin was the most guilty of all potential Defendants; failing to find an appropriate medical expert such as Dr. Halbridge whose affidavit submitted herewith explains medical causation whose testimony could have been presented to a jury; waiting until six weeks before a jury was selected, long after the case was certified for trial, the note of issue was filed and all discovery, depositions and pleadings were completed to begin to try to find an expert to testify at trial; and, failing to inform Mr. and Mrs. Healy that they still had three years on the statute of limitations to sue Dr. Faustin and the group Spector Klein, M.D., P.C., after the dismissal of their action against the other Defendants. It is his opinion with a reasonable degree of legal certainty that "had . . . Finz Finz located an appropriate expert in a timely fashion who could have explained the medical theories that were presented in Dr. Halbridge's affidavit, that the Finz firm could have conducted appropriate depositions and appropriate discovery based upon knowing such a theory, that the Plaintiffs would have been successful in their underlying medical malpractice action and that it was a failure to do so and that it was the legal malpractice of the Finz firm that was the proximate cause of the dismissal of the infant Plaintiff's action."
An issue of fact regarding negligence by Finz Finz has clearly been established. As for the pivotal issue here, i.e., causation, it is posed as follows: Could the evidence viewed in the light most favorable to the Plaintiffs have indicated that the infant Plaintiff sustained his brain insult subsequent to the death of the fetus with whom he shared a placenta? If so, there was in fact an issue of fact as to whether the Defendants in the underlying medical malpractice action as well as Dr. Faustin and Spector and Klein, M.D., P.C. were negligent in failing to caution the Healys of the ongoing risks to the infant Plaintiff of continuing the pregnancy and in allowing Mrs. Healy's pregnancy to continue past September 9, 1994. Under those circumstances, an issue of fact exists as to whether Finz Finz's legal malpractice resulted in the Plaintiffs' failure to prevail in the underlying action.
Had an expert's testimony like that proffered on behalf of the Plaintiffs here — which is adequately based upon the underlying facts — been admitted in evidence in the underlying medical malpractice action, a jury could have reasonably found that the Defendants Faustin and Klein and vicariously their employers the practice of Spector and Klein, M.D., P.C. and Madonna Physicians Services acted negligently in not cautioning the Healys of the ongoing risks to the infant Plaintiff and in not delivering him sooner and that their failure to do so resulted in the infant Plaintiff's continued development in a hostile utero environment in which he sustained or increased his brain insult. The Plaintiffs have established the existence of material issue of fact as to whether but for Finz Finz's negligent representation of them in the underlying action, they would have prevailed.
As such, the Defendant's motion for summary judgment is denied. It is hereby
ORDERED, that the parties are directed to appear in Central Jury for trial on September 13, 2010 at 9:30 a.m.
This constitutes the Decision and Order of the Court.