Opinion
Index No. 2020-2078
09-04-2024
J.C., an infant, by his Mother and Natural Guardian, JORDIN WALLS, and JORDIN WALLS, individually, Plaintiffs, v. Amanda Maripohl, CLAIRE NADLER, JOHN PRAMENKO, BELLEVUE WOMAN'S CENTER and ELLIS HOSPITAL, Defendants.
Unpublished Opinion
Thomas D. Buchanan, J.
Defendants have moved for summary judgment dismissing the Complaint. Plaintiffs have opposed. The parties have made written submissions and have been heard by the Court at oral argument. This medical malpractice action arises from the labor and delivery of the plaintiff, Jordan Walls, and the infant plaintiff, J.C.
The basic summary judgment standard is well known. The proponent of a summary judgment motion carries the initial burden to make a prima facie showing of entitlement to judgment as a matter of law by presenting sufficient evidence to eliminate any material issues of fact (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985]). If the requisite showing is made, the burden of proof then shifts to the responding party to show the presence of questions of fact requiring trial (Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986]). The facts must be construed in a light most favorable to the non-moving party (see e.g. Hanna v. St. Lawrence County, 34 A.D.3d 1146 [3d Dept 2006]).
With respect to defendants Mariphol, Bellevue and Ellis, Plaintiffs assert three departures by the physician defendants from good and accepted medical practice as follows: 1. failing to offer caesarean section or consulting with Ms. Walls about the option of having a caesarean section; 2. failing to properly test for gestational diabetes; and 3. failing to consult with a physician who specialized in obstetrics and gynecology before attempting Ms. Walls' delivery. Plaintiff further alleges a lack of informed consent pursuant to Public Health Law §2805-D(1) in the physicians' failure to act as reasonable medical practitioners under the circumstances by disclosing alternatives to the patient and the reasonably foreseeable risks and benefits involved. Plaintiff claims that Ms. Walls was never informed of the potential complication of dystocia. Plaintiff alleges that defendant Ellis Hospital departed from good and accepted medical practice by failing to provide competent nurses to Ms. Walls during her delivery.
In support of their motion, these defendants submit Plaintiffs' relevant medical records and transcripts of the depositions taken. Additionally, they submit an expert affirmation by a physician board certified in obstetrics and gynecology. According to the defense expert a caesarean section, rather than vaginal delivery, was not indicated here. The expert further opines, "While encountering shoulder dystocia is unfortunate, it was not caused by a deviation from the standard of care committed by Dr. Mariphol or Ellis Hospital staff." Accordingly, these defendants meet their initial burden.
In opposition, Plaintiffs provide an affidavit from their own expert. According to Plaintiffs' expert, Ms. Walls was morbidly obese and delivering a very large macrosomic-sized baby, placing her in the high-risk category. The expert attests that the physician defendants failed to inform Ms. Walls of her medical options during her pregnancy and delivery, that the failure was negligent, and that Ms. Walls has a claim for lack of informed consent. According to Plaintiffs' expert, the alternative to vaginal surgery was caesarean section and it was a violation of the standard of care to fail to consult with Ms. Walls about that option. The only recommendation presented to Ms. Walls was to consider being induced a week early, to which Ms. Walls agreed. According to Ms. Walls, had the physicians discussed the caesarean section with her she would have agreed, given that it would decrease the risk of injury. In Plaintiffs' expert's opinion, the failure to consult Ms. Walls about a caesarean section, and to discuss the risks and benefits of a caesarean section versus natural birth was, under the circumstances, a deviation from the standard of care.
Also, nowhere in the record is there any indication that Ms. Walls was ever informed of the potential complication of dystocia. All she was told was that the baby, being in the 98th percentile of size, could cause complications during delivery. The inherent risk of dystocia was never articulated. According to Plaintiffs' expert, informed consent required that the risk of dystocia be articulated to Ms. Walls prior to delivery in order for her to make an informed decision about the birth.
As to defendant Ellis, Plaintiffs' expert opines that hospital staff improperly used fundal pressure which is always a violation of the standard of care. Also, Plaintiffs' expert opines that defendant Ellis improperly tested Plaintiff for gestational diabetes, which can cause a macrosomic baby. Ms. Walls was tested for gestational diabetes at 15 weeks of gestation. Plaintiffs' expert opines that this was premature and that she should have been tested again at 26 weeks to 28 weeks of gestation. He further states that had Ms. Walls been properly tested she likely would have been diagnosed with gestational diabetes. The expert bases his opinions on multiple risk factors detailed in the medical records, including J.C.'s macrosomic size, and J.C. being hypoglycemic at birth.
While this last deviation was not specifically mentioned in Plaintiffs' Bill of Particulars, there are multiple references to improper testing in the record and, taken as a whole, under the circumstances here these defendants should not be shocked or surprised by Plaintiffs' position on this issue (see e.g. Fasce v. Catskill Regional Medical Center, 209 A.D.3d 1138 [3d Dept 2022]; Cannon v. Amarante, 19 A.D.3d 1144 [4th Dept 2005]). The Court also notes the line of cases allowing for plaintiffs to successfully oppose defense summary judgment motions with an unpleaded cause of action if their submissions support the claim (see Langan v. St. Vincent's Hosp. of New York, 64 A.D.3d 632 [2d Dept 2009] [citing cases]).
A court deciding a summary judgment motion should not make credibility determinations when competing expert opinions are offered unless one opinion is either conclusory (Rockefeller v. Albany Welding Supply Co., Inc., 3 A.D.3d 753 [3d Dept 2004]), speculative (Palmer v. Barnes & Noble Booksellers, Inc., 34 A.D.3d 1287 [4th Dept 2006]) or so lacking in factual or scientific foundation as to be utterly devoid of merit (Elsawi v. Saratoga Springs City School Dist., 141 A.D.3d 921 [3d Dept 2016]). The expert affidavits here do not suffer from any of these infirmities. Their differences of opinion set up questions of credibility and of fact that are not appropriately resolved on a summary judgment motion (see e.g. Dillenbeck v. Shovelton, 114 A.D.3d 1125 [3d Dept 2014]; Dandrea v. Hertz, 23 A.D.3d 332 [2d Dept 2005]; Rosenbaum v. Camps Rov Tov, 285 A.D.2d 894 [3d Dept 2001]). Accordingly, the conflict between the experts creates an issue of fact for trial.
Dr. Pramenko moves separately for summary judgment. Plaintiff alleges that Dr. Pramenko departed from good and accepted practice by 1. failing to consult with a physician who specializes in obstetrics and gynecology before performing Ms. Walls' delivery; and 2. exerting excess lateral force on J.C.'s head and neck during Ms. Walls' delivery. In support of his motion, Dr. Pramenko submits an expert affidavit from a board-certified physician in family medicine who works in labor and delivery and has delivered over 150 babies. According to the defense expert, Dr. Pramenko was adequately trained, qualified and competent in family medicine to carry out the delivery of the infant plaintiff. The defense expert affies that the standard of care when encountering shoulder dystocia calls for the use of the McRobert's maneuver, as used by Dr. Pramenko. The expert further affies that at no point during Dr. Pramenko's care and treatment of Plaintiffs did the standard of care require him to call for the assistance of an on-call OB-GYN.
In opposition to Defense expert, Plaintiffs' expert affies that Dr. Pramenko departed from accepted medical practice by failing to consult a physician who specializes in obstetrics and gynecology before performing Ms. Walls' delivery, and by exerting excess lateral force on J.C.'s head and neck during Ms. Walls delivery. According to Plaintiffs' expert, exerting excess lateral traction is a violation of the standard of care because it causes Erb's palsy. Therefore, as per the discussion above, the conflicting affidavits of the parties' experts create triable questions of fact.
With respect to the claimed deviation that Dr. Pramenko should have consulted with an OB-GYN prior to performing delivery, while the expert has opined that this was a departure from accepted medical practice, there is no evidence in the record that such a consultation would have altered the outcome, and thus no evidence of proximate cause. Accordingly, the defense motion with respect to that deviation will be granted.
The parties' remaining contentions have been considered, but do not alter the outcome of this motion. Therefore, in consideration of the foregoing, it is hereby
ORDERED, that the motion by defendant Pramenko seeking summary judgment dismissing the Complaint as against him is granted in part, insofar as the Complaint alleges malpractice in Dr. Pramenko's failure to consult with an OB-GYN; and it is further
ORDRED, that the motion by defendant Pramenko is denied in all other respects; and it is further
ORDRED, that the motion by defendants Mariphol, Bellevue and Ellis seeking summary judgment dismissing the Complaint as against them is denied.
Papers considered:
Notice of Motion; Affirmation of Marshall Broad, Esq., with annexed exhibits; Expert Affirmation with annexed exhibit; Memorandum of Law; Notice of Motion (Pramenko); Affirmation of Samantha V. Vedder, Esq., with annexed exhibits; Expert Affirmation with annexed exhibit; Memorandum of Law; Affirmation in Opposition of Matthew Shooshtary, Esq., with annexed exhibits; Expert Affidavit; Affidavit of Jordin Walls; Affirmation in Opposition (Pramenko) of Matthew Shooshtary, Esq. with annexed exhibits; Expert Affidavit; Affidavit of Jordin Walls; Affirmation in Reply of Marshall Broad, Esq.; Memorandum of Law in Reply of Samantha V. Vedder, Esq.