Opinion
1719/06.
Decided on September 11, 2008.
Nitkewicz McMahon, LLP, Attorneys for Plaintiffs, 356 Veterans Memorial Highway, Commack, NY.
Benjamin L. Herzweig, Esq., Attorney for Defendants Janet L. Titmus-Delettera and My Midwife, PC, Patchogue, NY.
Fumoso Kelly Deverna Snyder Dwart Farrell, Esqs., Attorneys for Defendants Nassau County Health Care Corporation, Nassau University Medical Center and Boris M. Petrikovsky, MD, Hauppauge, NY.
Vardaro Helwig, LLP, Attorneys for Defendant Louise Walker, Smithtown, NY.
Ptashnik Asociates, Esqs., Attorneys for Defendant Julia Chachere, New York, NY.
Defendant, BORIS M. PETRIKOVSKY, M.D., moves for an order, pursuant to CPLR § 3212, granting him summary judgment dismissing the claim against him. Defendants, NASSAU COUNTY HEALTH CARE CORPORATION (hereinafter referred to as "NCHCC") and NASSAU UNIVERSITY MEDICAL CENTER (hereinafter referred to as "NUMC"), move for the same relief. Defendant, JULIA CHACHERE, RPND (hereinafter referred to as "CHACHERE"), cross-moves for an extension of time to file a motion for summary judgment. The plaintiffs oppose the motions which are determined as follows:
Initially, the Court notes that, by order dated June 30, 2008, defendant CHACHERE's motion to preclude, pursuant to CPLR § 3042, was denied and her time to submit a motion for summary judgment was extended until July 18, 2008. The determination of the instant summary judgment motions has no bearing on a motion for that relief by her. Therefore, CHACHERE's cross-motion (#6) for an extension of time in which to move for summary judgment is denied beyond the time provided in the June 30, 2008 order.
Background
In this action, the plaintiffs seek to recover damages for, inter alia, medical malpractice. They allege that all of the defendants cared for Mrs. LACY during her pregnancy and that one (1) of her twins died in utero as a result of which she has sustained personal injuries, emotional distress and pecuniary loss. More specifically, the plaintiffs allege that Mrs. LACY came under the care of defendant, MY MIDWIFE, P.C. (hereinafter referred to as "MY MIDWIFE"), on or about January 4, 2004, in connection with her pregnancy. The plaintiffs allege that defendants, JANET L. TITMUS-DELETTERA, CNM, LM, (hereinafter referred to as "TITMUS-DELETTERA"), and LOUISA WALKER, LM (hereinafter referred to as "WALKER"), licensed certified Nurse Midwives, and defendant, JULIA CHACHERE, a licensed Professional Nurse Doula, were all employed by MY MIDWIFE, and that defendant, BORIS M. PETRIKOVSKY, M.D. (hereinafter referred to as "DR. PETRIKOVSKY"), as Director of Obstetrics and Gynecology ("OB/GYN") at NUMC and NCHCC, was also affiliated with MY MIDWIFE, in that he was the midwives' referral and supervising doctor pursuant to a written agreement which is required by Education Law § 6951 to practice midwifery. That agreement allegedly required DR. PETRIKOVSKY's consultation, collaboration, referral and emergency medical obstetrical care for MY MIDWIFE's patients. Although TITMUS-DELETTERA had some privileges at NUMC, she could not perform multiple births there.
In the first cause of action, the plaintiffs allege that Mrs. LACY was attended to by TITMUS-DELETTERA and CHACHERE during her labor and delivery and that those defendants were careless and negligent in their care of her, committing medical and/or midwifery malpractice.
In the second cause of action, the plaintiffs allege that Mrs. LACY was diagnosed in February 2004, via sonogram, as pregnant with twins, but that she was not referred to or examined by DR. PETRIKOVSKY. The plaintiffs again allege that Mrs. LACY was cared for during her labor and delivery by defendants, TITMUS-DELETTERA and CHACHERE, without DR. PETRIKOVSKY's assistance and that the defendants who cared for her were negligent and committed medical and/or midwifery malpractice.
In the third cause of action, the plaintiffs allege that, on December 13, 2003, plaintiff, TIFFANY LACY, executed an Informed Consent form with MY MIDWIFE, which provided for consultation, collaboration and/or care to be provided by the referral/supervising physician, DR. PETRIKOVSKY, in the event that a deviation from normal occurred at any time during the course of midwifery. They further allege that the diagnosis of twins classified Mrs. LACY's pregnancy as "high risk", which constituted a "deviation from normal", but that Mrs. LACY was not referred to DR. PETRIKOVSKY and, in fact, "did not receive medical treatment in any way from [him]". It is alleged that, accordingly, TITMUS DELETTERA, WALKER and CHACHERE breached the Informed Consent Agreement, which also constituted medical malpractice.
In the fourth cause of action, the plaintiffs allege that TITMUS-DELETTERA, WALKER and CHACHERE's failure to refer Mrs. LACY to DR. PETRIKOVSKY constituted a breach of State statutory law as well as a departure from good and accepted standards of medical and midwifery practice.
In the fifth cause of action, the plaintiffs allege that DR. PETRIKOVSKY's failure to speak with, examine, render medical care to, or monitor Mrs. LACY, his failure to consult with and/or collaborate with her caretakers, and, his failure to provide any medical care whatsoever to Mrs. LACY, was negligent and constituted medical and/or midwifery malpractice.
In the sixth cause of action, the plaintiffs allege that the defendants' breach of contract, negligence and medical malpractice caused the death of their infant son and that plaintiffs were caused to witness said death as a result thereof.
In the seventh cause of action, the plaintiffs allege that, on June 24, 2004, Mrs. LACY presented at NUMC with contractions and that the care she received was negligent and constituted medical malpractice.
In the eighth cause of action, the plaintiffs advance, inter alia, a loss of consortium claim on behalf of Mr. LACY.
In the Bill of Particulars, the plaintiffs allege that DR. PETRIKOVSKY was careless and negligent and departed from good and accepted standards of medical and/or midwifery practice, inter alia, by "failing to properly monitor and follow up with the care and treatment to [Mrs.LACY]; in negligently and carelessly failing to acquire and/or have the necessary, adequate and proper consultations; in failing to have appropriate and proper consultations and assistance in the care and treatment of [Mrs. LACY]; in failing to take standard and accepted care and precautions to avoid or prevent damage and injury to [Mrs. LACY]; [and] in failing to take adequate and proper measures and precautions necessary and calculated to avoid the occurrences complained of herein". The plaintiffs further allege that "[d]espite his obligation to act as a supervising doctor as and for defendant My Midwife, P.C., including supervision of defendants Janet Titmus-Delettera, CNM, LM, Louisa Walker, LM and Julia Chachere, RPND, [and] despite the Written Agreement to act as a referral and supervising medical physician pursuant to § 6951 of the Education Law of the State of New York, and despite being a treating and consulting physician to plaintiff Tiffany Lacy, defendant Boris Petrikovsky, M.D., failed to properly treat and/or advise and/or examine and/or diagnose and/or assess plaintiff Tiffany Lacy during her high risk multiple pregnancy, including, but not limited to the period extending from on or about November, 2003 through to on or about, and including, July 1, 2004".
The defendants, DR. PETRIKOVSKY and the NCHCC and NUMC seek summary judgment dismissing the complaint as against them. The pertinent facts are as follows:
The Memorandum of Understanding between TITMUS-DELETTERA and DR. PETRIKOVSKY provides that "it is understood that the Physician neither accepts nor assumes any liability, direct or vicarious, for the actions of the Midwife; and that Physician shall only be responsible for the direct medical actions performed by him/her on a particular patient". As for DR. PETRIKOVSKY's responsibility, the Memorandum of Understanding provides that "[t]he Physician or his associates agree to be available for consultation, collaborative management or transfer of care when medical management or hospitalization is required for the midwife's patients" and that "[t]he judgment of the consultant physician shall prevail when a dispute resolution of care is required" (emphasis supplied)." The plaintiffs' Informed Consent, which was executed by Mrs. LACY and TITMUS-DELETTERA provides: "[i]f at any time during the course of midwifery care a deviation from normal occurs, consultation, collaboration or care will be provided by the referral physician. If the midwife is for any reason unavailable, the referral physician or his/her designee will be available for care. The physician of referral is Dr. Petrikovsky."
The plaintiffs' and defendants' testimony at their examinations-before-trial (EBT) unequivocally establishes that DR. PETRIKOVSKY played no role at all in Mrs. LACY's care. DR. PETRIKOVSKY never examined Mrs. LACY nor was he ever consulted by TITMUS-DELETTERA, WALKER or CHACHERE, or anyone else associated with MY MIDWIFE regarding Mrs. LACY's care.
As for the NUMC, DR. PETRIKOVSKY was the Director of the OB/GYN Department at the hospital. The evidence clearly reveals that defendant, TITMUS-DELETTERA attempted to admit Mrs. LACY at NUMC, on June 24, 2004, because one of the babies had experienced a decelerated heart rate, but that NUMC refused to allow TITMUS-DELETTERA to admit her due to a problem with her admitting privileges she lacked the privileges to perform multiple births at the hospital. Nevertheless, the facts establish that Dr. Axelrod, an attending doctor in the hospital's OB/GYN Department, offered to admit and attend to Mrs. LACY, but the LACYS, in apparent conjunction with TITMUS-DELETTERA, opted to leave NUMC without so much as informing the staff. The evidence indicates that DR. PETRIKOVSKY was advised of NUMC's refusal to allow TITMUS-DELETTERA to admit Mrs. LACY, but there is no evidence that he was advised of the reason, i.e., that Mrs. LACY was carrying twins and TITMUS-DELETTERA lacked the necessary privileges to deliver them at the hospital.
Mrs. LACY delivered the babies at home, on July 1, 2004, with TITMUS-DELETTERA, WALKER and CHACHERE attending. Twin A was born with an APGAR of 8 and Twin B was stillborn. An autopsy on Twin B listed the cause of death as undetermined. DR. PETRIKOVSKY was never called upon in connection with this birth.
The Law
"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 , 778 NYS2d 98 (2nd Dept. 2004), aff'd. as mod., 4 NY3d 627 (C.A. 2005), citing Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923, 501 NE2d 572 (C.A. 1986); Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316, 476 NYS2d 642 (C.A. 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, 824 NYS2d 166 (2nd Dept. 2006), citing Secof v Greens Condominium, 158 AD2d 591, 551 NYS2d 563 (2nd Dept. 1990).
The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted practice and evidence that such departure was a proximate cause of injury or damages. Ramsay v Good Samaritan Hosp ., 24 AD3d 645, 808 NYS2d 374 (2nd Dept. 2005); see also, Thompson v. Orner , 36 AD3d 791 , 828 NYS2d 509 (2nd Dept. 2007); DiMitri v Monsouri, 302 AD2d 420, 754 NYS2d 674 (2nd Dept. 2003); Holbrook v United Hospital Medical Center, 248 AD2d 358, 669 NYS2d 631 (2nd Dept. 1998). "In a medical malpractice action, the party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by showing the absence of a triable issue of fact as to whether the defendant physician [and/or hospital] were negligent". Taylor v Nyack Hospital , 18 AD3d 537 , 795 NYS2d 317 (2nd Dept. 2005) citing Alvarez v Prospect Hospital, supra). Thus, a moving defendant doctor or hospital "has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was injured thereby". Chance v Felder , 33 AD3d 645 , 823 NYS2d 172 (2nd Dept. 2006) quoting Williams v Sahay , 12 AD3d 366 , 783 NYS2d 664 (2nd Dept. 2004), citing Alvarez v Prospect Hosp., supra; Johnson v Queens-Long Island Medical Group, P.C., 23 AD3d 525, 526 (2nd Dept. 2005); Taylor v Nyack Hospital, supra; seealso, Thompson v Orner, supra .
An expert may not make conclusions based on facts not in evidence or which are directly contradicted by the evidence. See, Holbrook v United Hospital Medical Center, supra; see also, Kaplan v Hamilton Medical Associates, P.C., 262 AD2d 609, 692 NYS2d 674 (2nd Dept. 1999). In fact, a qualified expert's opinion that a plaintiff's injuries were caused by a deviation from relevant industry standards has no probative force when the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation. See, Wong v Goldbaum , 23 AD3d 277 , 805 NYS2d 47 (1st Dept. 2005) citing Diaz v New York Downtown Hosp., 99 NY2d 542, 754 NYS2d 195, 784 NE2d 68 (C.A. 2002).
Education Law § 6951 requires midwifery to be practiced in accordance with a written agreement between the midwife and a nationally board-certified licensed OB/GYN physician; a licensed physician who practices obstetrics and has obstetrics privileges at a general hospital; or, a hospital that provides obstetrics through a licensed physician who has obstetrical privileges there. That statute provides that "[t]he written agreement shall provide for physician consultation, collaboration, referral and emergency medical obstetrical coverage, and shall include written guidelines and protocols".
In support of their motion, the moving defendants have submitted the affirmation of Dr. Victor R. Klein, a physician Board Certified in Obstetrics, Gynecology and Maternal Fetal Medicine and Medical Genetics. He has performed numerous single and multiple births and has worked with midwives. Having reviewed all of the pertinent legal and medical records, he opines that DR. PETRIKOVSKY did not commit any departures from accepted medical practice in connection with the treatment rendered to Mrs. LACY and that none of his actions were the proximate cause of any of the injuries allegedly sustained by her. Dr. Klein explains that DR. PETRIKOVSKY's responsibility as a backup doctor to a midwife is to take over care when the midwife chooses to transfer the patient to him. He explains that a backup doctor does not have the responsibility to check up on the midwife or to monitor her patient's care in the course of her practice: He is to be available for consultation and transfer if and when the midwife chooses it. Dr. Klein notes that the evidence shows that DR. PETRIKOVSKY was never involved in Mrs. LACY's care and that even TITMUS-DELETTERA admitted as much. DR. PETRIKOVSKY never examined, talked with or even met the LACYS, nor did TITMUS-DELETTERA or anyone else from MY MIDWIFE ever consult with him regarding Mrs. LACY's care. In fact, Dr. Klein notes that TITMUS-DELETTERA herself testified that she never discussed Mrs. LACY with DR. PETRIKOVSKY because she was Mrs. LACY's health care provider and DR. PETRIKOVSKY was only her back up, not her boss. She admitted that she never collaborated with DR. PETRIKOVSKY let alone transferred Mrs. LACY's care to DR. PETRIKOVSKY. In fact, Dr. Klein notes that TITMUS-DELETTERA testified at her EBT that she did not tell DR. PETRIKOVSKY that Mrs. LACY was pregnant with twins because she knew that he would not support a home birth of twins. And, DR. PETRIKOVSKY testified at his EBT that, due to the increased risks involved, he would never consent to a home birth of twins.
This case is on all fours with the court's decision in Ramsey v Good Samaritan Hospital, supra . In Ramsey, pursuant to her agreement with the defendant physician, the defendant midwife was obligated to contact the physician in the event of a problem. She never did. The supervising doctor was granted summary judgment dismissing the complaint against him despite the plaintiff's allegations that he had failed to adequately supervise the midwife resulting in the plaintiff's infant's death. Similarly, in the case at bar, the guidelines or protocol in the agreement between DR. PETRIKOVSKY and TITMUS-DELETTERA required DR. PETRIKOVSKY to be "available" to TITMUS-DELETTERA. However, TITMUS-DELETTERA never notified DR. PETRIKOVSKY of any facts indicating a need for his involvement let alone called upon him for consultation, collaboration or a transfer of care. As the supervising doctor did in Ramsay, DR. PETRIKOVSKY complied with the relevant standards applicable to his contractual relationship with TITMUS-DELETTERA.
Via his expert, DR. PETRIKOVSKY has also established the absence of proximate cause between his alleged malpractice and the infant's death. The autopsy report lists the cause of death as undetermined. Thus, the lack of involvement by DR. PETRIKOVSKY does not appear to have been of any consequence.
Therefore, it is the judgment of the Court that DR. PETRIKOVSKY has established his entitlement to summary judgment thereby shifting the burden to plaintiff to establish the existence of a material issue of fact. As for NUMC and NCHCC, under these circumstances, NUMC and NCHCC's employment of DR. PETRIKOVSKY provides no basis for liability. Furthermore, Dr. Klein affirms that NUMC acted appropriately in refusing Mrs. LACY's admission by TITMUS-DELETTERA and in offering to admit her under the care of one of its attending physicians. It is the judgment of the Court that NUMC and NCHCC have also established their entitlement to summary judgment, thereby shifting the burden to plaintiffs to establish the existence of an issue of fact.
In opposition to the motions for summary judgment, the plaintiffs have submitted the affirmation of a doctor licensed to practice medicine in New York State who is board certified in Obstetrics Gynecology. He states that he owns his own private practice and that he treats patients for all gynecological and obstetrical needs from early pregnancy through labor and delivery, including high risk and multiple pregnancies, and that he has worked with midwives. Having reviewed all of the pertinent medical and legal records, he opines "within a reasonable degree of medical certainty that the care and treatment rendered by [Dr.] Petrikovsky was not within the accepted standard of medical care for a physician specializing in Obstetrics and Gynecology who has collaborative care duties and responsibilities for, and with, a midwife". It is his medical opinion to a reasonable degree of medical certainty that "the affirmative duties and responsibilities a physician has and owes to a midwife in which he/she collaborates with, and more importantly to the patients, are knowingly created by the execution of a collaborative agreement by and between the physician and the midwife to take on such an express role in the care of the midwife's patients". He faults NUMC and NCHCC as well on account of their employing DR. PETRIKOVSKY. Plaintiff's expert doctor explains that, by virtue of his agreement with TITMUS-DELETTERA, in light of his managing role, DR. PETRIKOVSKY and NUMC and NCHCC had a duty and responsibility to oversee and manage the care TITMUS-DELETTERA rendered to her patients irrespective of whether DR. PETRIKOVSKY independently rendered any treatment to them. He further opines that DR. PETRIKOVSKY's role became more significant and critical when Mrs. LACY was diagnosed as carrying twins, of which, based on Mrs. LACY's medical records and the deposition testimony, plaintiff's expert physician finds DR. PETRIKOVSKY was aware . More specifically, he finds that DR. PETRIKOVSKY was advised via Mrs. LACY's medical records, on May 10, 2004, that Mrs. LACY's sonogram revealed that she was carrying twins and he was also advised that the midwives were not permitted to admit Mrs. LACY to NUMC, on June 24, 2004. He opines that "a collaborative care physician who either supports, recommends, agrees, has knowledge of, and/or should have knowledge of, the position of a collaborating licensed midwife under his/her auspices to perform a home birth delivery of twins, is not practicing within the confines of good medical practice and would be acting below the reasonable and accepted standards of obstetrical and gynecological care". He faults DR. PETRIKOVSKY for not taking affirmative action regarding the circumstances surrounding Mrs. LACY's labor and delivery of twins at home without a fetal heart monitor and opines that his failure to overrule TITMUS-DELETTERA's plan for a home birth of post-date twins without access to fetal heart monitors was a deviation from the reasonable standard of care. Plaintiff's expert doctor also faults DR. PETRIKOVSKY for not taking action when he was advised, on June 25, 2004, that the midwives were not permitted to admit Mrs. LACY the day before, despite the fact that she was post-term with a multiple gestation pregnancy and had experienced contractions and one baby's heart rate had decelerated. As for causation, plaintiff's expert doctor opines that "but for the failure of the defendant Petrikovsky to take any affirmative steps after learning of the post-term multiple gestation pregnancy of plaintiff Tiffany Lacy being managed by his collaborating midwives, who were without privileges to deliver at defendant NUMC, created and/or exacerbated the risks to plaintiff Tiffany Lacy and her twin sons, and caused the stillborn death of twin Max William Lacy". He explains that DR. PETRIKOVSKY's deviation resulted in Mrs. LACY's labor and delivery without accepted diagnostic equipment, including a fetal heart monitor, and resulted in her not receiving a Cesarean section when her fetus was in distress which could have avoided the twin's death. Thus, he opines that Twin B's death was proximately caused by or exacerbated by DR. PETRIKOVSKY's failure to properly manage Mrs. LACY's care and treatment.
The Court disagrees and finds that the plaintiffs have failed to meet their burden. The plaintiffs' expert's opinion is predicated upon DR. PETRIKOVSKY's knowledge that Mrs. LACY was pregnant with twins and his attendant failure to usurp control of or at least adequately monitor her care since twins are a "high risk pregnancy". Plaintiffs' allegation that DR. PETRIKOVSKY knew that Mrs. LACY was carrying twins is predicated solely on Mrs. LACY's medical records and the LACYS' testimony that they heard that he had been told. There is no evidence that DR. PETRIKOVSKY ever had cause to see, let alone review, Mrs. LACY'S medical records. And, his being told that Mrs. LACY was pregnant with twins is pure hearsay and cannot be relied upon to establish such knowledge by him, which is a necessary predicate for his liability and concomitantly, NUMC and NCHCC's as his employer. The plaintiff's expert's opinion that a supervising doctor has an affirmative obligation and duty to supervise midwives' cases is not supported by the parties' governing agreement or the Education Law. See, Ramsay v Good Samaritan Hospital, supra .
Plaintiffs' expert affirmation fails to establish the existence of a material issue of fact regarding the care and treatment rendered to Mrs. LACY by DR. PETRIKOVSKY in his role as supervising doctor to the midwives. See, Ramsay v Good Samaritan Hospital, supra . Plaintiffs have also failed to establish the existence of an issue of fact regarding the care rendered to Mrs. LACY on Jun 24, 2004 by NUMC and/or NCHCC.
Based on the foregoing, it is hereby
ORDERED, that the motions by defendants, DR. PETRIKOVSKY, NCHCC and NUMC, are granted and the complaint against them is dismissed; and it is further
ORDERED, that the cross-motion by defendant, CHACHERE, is denied.
All further requested relief not specifically granted is denied.
This constitutes the decision and order of the Court.