Opinion
350649/08, 776, 775.
04-12-2016
MANUEL H., an Infant by, His Mother and Natural Guardian, Reyna V., Plaintiff–Appellant, v. Ellen LANDSBERGER, M.D., et al., Defendants–Respondents.
The Fitzgerald Law Firm, P.C., Yonkers (Mitchell L. Gittin of counsel), for appellant. McAloon & Friedman, P.C., New York (Gina Bernardi DiFolco of counsel), for respondents.
The Fitzgerald Law Firm, P.C., Yonkers (Mitchell L. Gittin of counsel), for appellant.
McAloon & Friedman, P.C., New York (Gina Bernardi DiFolco of counsel), for respondents.
FRIEDMAN, J.P., SWEENY, SAXE, RICHTER, KAHN, JJ.
Judgment, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered January 16, 2014, which, to the extent appealed from as limited by the briefs, dismissed plaintiff's medical malpractice cause of action as against defendants Ellen Landsberger, M.D., Mary Rosser, M.D., University Hospital of the Albert Einstein College of Medicine, and Montefiore Medical Center at the Jack Weller Hospital of Albert Einstein College of Medicine, and bringing up for review an order, same court and Justice, entered January 13, 2014, which, inter alia, granted defendants' motion for summary judgment dismissing the complaint to the aforementioned extent, unanimously affirmed, without costs. Appeals from order, same court and Justice, entered December 23, 2014, which, upon granting plaintiff's motion for reargument, adhered to the order entered January 13, 2014, unanimously dismissed, without costs, as academic.
Plaintiff alleges that defendants failed to assess the mother to determine the existence of fetopelvic disproportion in order to determine whether vaginal delivery was safe prior to inducing labor with Pitocin. Plaintiff further alleges that defendants departed from accepted medical practices in failing to timely perform a C-section, which resulted in forcing the fetus through the pelvis, and placing undue pressure on the head, causing hypoxic injury.
Plaintiff's claims are unavailing, and without record support. Defendant demonstrated prima facie the absence of malpractice by submitting, inter alia, hospital records and deposition testimony that show that the maternal pelvis was examined on multiple occasions to ascertain whether vaginal delivery was safe, including determining the pelvis's precise type, as described by plaintiff's expert. Moreover, there is no medical evidence of hypoxia, as the infant was born with normal Apgar scores, and an MRI, performed four years later, detected no abnormalities (see Fernandez v. Moskowitz, 85 A.D.3d 566, 568, 925 N.Y.S.2d 476 [1st Dept.2011] ; compare Anyie B. v. Bronx Lebanon Hosp., 128 A.D.3d 1, 7, 5 N.Y.S.3d 92 [1st Dept.2015] [objective medical tests indicated intracranial abnormality and early signs of delay] ). The record refutes the opinion of plaintiff's expert, Dr. Edelberg, that defendants departed from the standard of care (see Roques v. Noble, 73 A.D.3d 204, 207, 899 N.Y.S.2d 193 [1st Dept.2010] ).
The opinion of plaintiff's other expert, Dr. Chen, that he need not rebut the normal MRI evidence, since defendants failed to show that the “relatively mild damage” would be seen, is no more than “bare conjecture” (see Callistro v. Bebbington, 94 A.D.3d 408, 410, 941 N.Y.S.2d 137 [1st Dept.2012], affd. 20 N.Y.3d 945, 958 N.Y.S.2d 319, 982 N.E.2d 81 [2012] ), insufficient to defeat defendants' entitlement to summary judgment.