Opinion
Index No. 22062/17
02-17-2023
N.R., an infant by her mother and natural guardian ERICA ELIAS, and ERICA ELIAS, individually, Plaintiffs, v. Northwell Health, Inc., NORTH SHORE UNIVERSITY HOSPITAL, DR. KAZUNARI KUNO, DR. SHARLENE SANIDAD, DR. SHARON GERBER, DR. MEREDITH KREVITSKY and DR. NATHAN MINKOFF, Defendants.
Attorney for Plaintiffs Philip W. Coleman, Esq. Law Offices of Philip W. Coleman, LLC Attorneys for North Shore, Sanidad & Gerber Rupa Banik, Esq. Aaronson Rappaport Feinstein & Deutsch, LLP
Unpublished Opinion
Attorney for Plaintiffs Philip W. Coleman, Esq. Law Offices of Philip W. Coleman, LLC
Attorneys for North Shore, Sanidad & Gerber Rupa Banik, Esq. Aaronson Rappaport Feinstein & Deutsch, LLP
JOSEPH E. CAPELLA, J.S.C.
The following papers numbered 1 to 4 read on this motion dated April 14, 2022.
PAPERS NUMBERED
NOTICE OF MOTION & AFFIRMATION 1
ANSWERING AFFIRMATION & MEMO OF LAW 2 - 3
REPLY AFFIRMATION 4
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:
Motion by defendants, North Shore University Hospital (North Shore), Dr. Sharlene Sanidad and Dr. Sharon Gerber, for summary judgment (CPLR 3212) and dismissal of plaintiffs' complaint, which alleges medical malpractice, lack of informed consent and loss of services, is granted in part and denied in part. Although not plead in the amended complaint, the bill of particulars (BP), which should only be an amplification of the complaint (Paterra v Arc, 136 A.D.3d 474 [1st Dept 2016]), added the following claims against North Shore: negligent supervision, failure to promulgate and/or enforce rules and regulations, and negligent training of staff. This action arises from the labor and delivery of the infant on xxxx xx, 2016, in which plaintiffs allege, in general, that excessive lateral traction was applied to the head and neck, leading to a right clavicle fracture and Erb's Palsy. The initial burden is on defendants to make a prima facie showing of an entitlement to summary judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact. (Alvarez v Prospect, 68 N.Y.2d 320 [1986].) If they do, then the burden shifts to plaintiffs to produce evidentiary proof in admissible form sufficient to create issues of fact to warrant a trial (Alvarez, 68 N.Y.2d 320), and denial of summary judgment.
A BP may not add additional claims (Paterra, 136 A.D.3d 474); however, it does not appear that defendants objected to the inclusion of these additional claims against North Shore, and actually address them in their motion.
Exact date redacted pursuant to section 12.4(b)(2) of Privacy Guidelines.
In support of the motion is an expert affirmation by Dr. Iffath Abbasi Hoskins, who is board certified in obstetrics, gynecology and maternal fetal medicine. Dr. Hoskins' detailed affirmation states, in general, that the defendants appropriately followed American College of Ob/Gyn (ACOG) guidelines and allowed the mother to labor; there was no indication to perform a C-section during labor; when the fetal heart rate was in the 60 bpms range at around 6:12 pm, and the fetal vertex (head) had descended sufficiently to plus 2 station in the bony pelvis, that there was an urgency in delivering the infant at that time due to the potential risk of hypoxia (which did not occur) and as such, the use of the vacuum was the quickest and safest way to deliver the infant's head. Dr. Hoskins goes on to state that after the head was delivered, there was a timely recognition of a shoulder dystocia, and at that point defendants followed ACOG guidelines and appropriately used the McRobert's maneuver and suprapubic pressure to deliver the infant.
Dr. Hoskins states that informed consent was appropriately obtained through the use of consent forms which specifically stated that the risks, benefits and alternatives were discussed. According to Dr. Hoskins, there is no hospital rule, regulation or guideline that should have been implemented to prevent the alleged injuries, the staff was appropriately supervised by the attending, Dr. Sanidad, and there is nothing in the records to suggest the staff was incompetent or unfit. Dr. Hoskins states that Dr. Gerber was under the supervision and guidance of Dr. Sanidad, and there is nothing in the records or testimony to show that Dr. Gerber rendered any independent care. (Bellafiore v Ricotta, 83 A.D.3d 632 [2nd Dept 2011].) Based on the aforementioned, the Court is satisfied that defendants have met their burden for summary judgment, (Zuckerman v City of NY, 49 N.Y.2d 557 [1980]; Kaffka v NY Hospital, 228 A.D.2d 332 [1st Dept 1996]), which now shifts to plaintiffs to demonstrate that issues of fact exist to warrant a trial on this issue.
In opposition, plaintiffs provide an expert affidavit by Dr. Daniel Adler, who specializes in pediatric neurology. Plaintiffs' also provide and expert affidavit by a physician board certified in obstetrics and gynecology who notes that Elizabeth Barrera (mother of Erica Elias who was in the delivery room) testified at her deposition that the baby's head emerged but then became stuck. And further notes that in Ms. Barrera's affidavit in opposition to defendants' motion, she states that the Asian doctor then pulled on the baby's head in a downward manner, and the Caucasion doctor inserted her hand inside of Erica's vagina near the baby's neck, head and right shoulder in a cupping turning manner and pulled the baby out. Plaintiffs' expert opines that Dr. Sanidad and Dr. Gerber did not follow ACOG guidelines that strongly advise against any lateral or downward traction on the fetal head, and departed from accepted medical practice by applying such force and traction to the infant's head so as to stretch the nerve roots in the brachial plexus literally beyond the breaking point. Both experts agree that the brachial plexus injury suffered by the infant was caused by the lateral/downward traction applied to the head by Dr. Sanidad and Dr. Gerger during the delivery, and not by the maternal forces of labor.
Defendants argue that the opinion by plaintiffs' expert obstetrician and gynecologist should be disregarded because it erroneously relies upon Ms. Barrera's affidavit, which contradicts her deposition testimony. (Prunty v Keltie's, 163 A.D.2d 595 [2nd Dept 1990] (plaintiff and witness' affidavits submitted subsequent to their depositions were clear attempts to avoid the consequences of their earlier admissions by raising feigned factual issues).) However, a review of both her affidavit and deposition testimony reveals that while there is some inconsistency, especially as to her description of the doctors (i.e., Asian vs. Caucasian), overall, she observed both doctors pulling on the infant's head. Unlike Prunty, this is not a case in which a witness is attempting to retract an admission made in the course of pretrial discovery, and any conflicting testimony by Ms. Barrera presents a credibility issue that cannot be resolved via summary judgment. (Mickelson v Babcock, 190 A.D.2d 1037 [4th Dept 1993].) Moreover, the trier of fact will hear from these experts, including the evidence that each one relies upon in forming the basis for their expert opinion, and in turn they will evaluate the weight and credibility of the testimony of these experts (Cassano v Hagstrom, 5 N.Y.2d 643 [1959]; State v Marks, 87 A.D.3d 73 [3rd Dept 2011]).
As for Dr. Gerber who was under the supervision and guidance of Dr. Sanidad, plaintiffs note that neither defendant doctor discussed in their depositions their roles in the delivery of the infant; therefore, issues of fact exist as to whether Dr. Gerber committed an independent act that constitutes a departure. (Arshansky v Royal, 28 A.D.2d 986 [1st Dept 1967].) Lastly, it should be noted that the opposition papers do not address lack of informed consent, negligent supervision, failure to promulgate and/or enforce rules and regulations, and negligent training of staff. Viewing the evidence in a light most favorable to plaintiffs, (O'Sullivan v Presbyterian, 217 A.D.2d 98 [1st Dept 1995]), the Court is satisfied that the aforementioned departure (i.e., whether the brachial plexus injury suffered by the infant was caused by the lateral/downward traction applied to the head by Dr. Sanidad and Dr. Gerber during delivery) creates an issue of fact regarding plaintiffs' medical malpractice claim sufficient to warrant a trial.
That portion of the summary judgment motion seeking dismissal of this departure is denied; however, that portion seeking dismissal of all other alleged departures, and plaintiffs' lack of informed consent, negligent supervision, failure to promulgate and/or enforce rules and regulations, and negligent training of staff claims, is granted. Defendants are directed to serve a copy of this decision with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court.