Opinion
13958/03.
Decided September 20, 2006.
WILSON, ELSER, MOSKOWITZ, EDELMAN DICKER LLP, Attorneys for Defendants, DOMINIC D. ARO, M.D. and UNIVERSITY OB/GYN, P.C., New York, New York.
BURNS HARRIS, ESQS., Attorneys for Plaintiffs, New York, New York.
KANTERMAN PARTNERS, Attorneys for Defendants, WESTCHESTER HEALTH CARE CORPORATION, WESTCHESTER MEDICAL CENTER, BRINDA B. RENA, Successor Executrix to the Estate of UMA L. VERMA, M.D. and GEETHA RAJENDRAN, M.D., New York, New York.
This action arises out of the alleged medical malpractice of defendants in their obstetrical care and treatment of plaintiff's condition in connection with the delivery of her child, which resulted in plaintiff suffering a seizure and falling into a coma. Donald Pickering, husband and guardian of Daphne Pickering, commenced this action on behalf of Mrs. Pickering to recover for personal injuries and on his own behalf for loss of services. Defendants Dominic D. Aro, M.D. and University Ob/Gyn, P.C. move herein for summary judgment dismissing the complaint as against them on the grounds that there were no departures from accepted medical practices.
By stipulation dated July 25, 2006, this case was settled as against defendants Westchester County Health Care Corporation, Westchester Medical Center, Brinda B. Rina, Successor Executrix to the Estate of Uma L. Verma, M.D., and Geetha Rajendran, M.D.
Subsequent to the filing of this motion, by stipulation of discontinuance dated August 14, 2006, this action was discontinued with prejudice as to defendant University Ob/Gyn, P.C. The stipulation states that it is based upon the representation of defendant that it carries no insurance.
The proponent of a summary judgment motion in a medical malpractice case has the burden of making a prima facie showing of entitlement to judgment as a matter of law ( Alvarez v. Prospect Hosp., 68 NY2d 320). Once the movant has made this showing, the burden shifts to the opponent of summary judgment to show, by competent evidence, that there is a material issue of fact as to whether the physician was negligent ( id.). If the nonmovant submits an affidavit from a competent expert showing the existence of a triable issue of fact as to whether defendant committed medical malpractice, the summary judgment motion must be denied ( see Dellert v. Kramer, 280 AD2d 438).
In support of their motion, moving defendants submit an affirmation of an expert who opines therein that the care and treatment rendered by Dr. Aro, an employee of University Ob/Gyn, to plaintiff Daphne Pickering did not deviate from the accepted standards of medical care and did not cause the injuries sustained by plaintiff. In opposition, plaintiffs submit the affirmation of an expert who states that Dr. Aro failed to follow accepted standards of care in his management of plaintiff's condition following the delivery of her baby. Specifically, plaintiffs' expert opines that Dr. Aro's discontinuance of magnesium sulfate and failure to restart it leaving plaintiff without appropriate seizure prophylaxis, inadequate monitoring of plaintiff's magnesium levels and clinical status, failure to properly control her blood pressure, and failure to arrange for an appropriate consultation were deviations from acceptable medical practice, and that these departures caused plaintiff to suffer a grand mal seizure.
Although plaintiffs annexed an unsigned copy of the expert affirmation to their opposition papers, plaintiffs submitted a signed copy to the Court for in camera review.
The motion for summary judgment is denied. Triable issues of fact, precluding summary judgment, exist in light of the conflicting opinions of the parties' respective experts as to whether there was a departure by Dr. Aro from accepted medical standards in his care and treatment of plaintiff post delivery ( see Halkias v. Otolaryngology-Facial Plastic Surgery Assocs., 282 AD2d 650; Walker v. Mount Vernon Hosp., 272 AD2d 468). Moreover, insofar as causation is almost always a difficult issue in a medical malpractice case, a plaintiff need do no more than offer sufficient evidence from which a reasonable person might conclude that it is more probable than not that the injury was caused by the defendant ( Minelli v. Good Samaritan Hosp., 213 AD2d 705) or that the defendant's conduct was a substantial factor in causing injury to the plaintiff ( Blanar v. Dickinson, 296 AD2d 431).
That branch of defendants' motion which alternatively seeks a Frye hearing is also denied. Defendants' factual disagreement with plaintiffs' medical causation theory does not warrant a Frye hearing inasmuch as defendants have failed to show that any "novel" medical theories or evidence are implicated here, as required by the Frye standard to preclude ( see Frye v. United States, 293 F 1013; Nonnon v. City of New York , 32 AD3d 91; Lambadarios v. Kobren, 191 Misc 2d 86).
By cross-motion, plaintiffs seek a change of venue to Bronx County. Plaintiffs commenced an action against defendants Aro, Verma and Rajendran on July 15, 2003 in Bronx County. Thereafter, on September 9, 2003, plaintiffs commenced an action against Westchester Medical Center, Bradhurst Ob/Gyn, University Ob/Gyn and Ob/Gyn Multispecialty Group in Westchester County. By decision and order dated December 22, 2004, the Honorable Dianne T. Renwick granted the motions of Drs. Aro, Verma and Rajendran to change venue from Bronx County to Westchester County based on the fact that Dr. Rajendran was an employee of Westchester Medical Center, whose principal offices are located in Westchester, and based on Public Authorities Law § 3316(1) and CPLR 505 which specifically prescribe alternative venue rules for an action against a public authority such as the Medical Center. By stipulation, the two actions were later consolidated. On the instant cross-motion, plaintiffs contend that since the action has settled as to Dr. Rajendran, Westchester Medical Center and the Westchester County Health Care Corporation, venue should be returned to the Bronx in which venue was proper based on the guardianship appointment made in the Bronx and the residencies of plaintiffs. (Mrs. Pickering resides in a nursing home in the Bronx, and Mr. Pickering contends that he maintains a part-time residence in that county, an issue which defendants challenge).
An examination of the notice of cross-motion and supporting affirmation provides no proper indication of the statutory basis of plaintiffs' change of venue motion. Nevertheless, it appears that the motion is made pursuant to CPLR 510(1) and/or (3).
Plaintiffs argue that where venue was placed on the basis of parties that are later dismissed from the action, it is appropriate to transfer the matter to a proper county based on the residence of the parties. Notably, plaintiffs have entered into a stipulation of settlement with Westchester County Health Care Corporation, Westchester Medical Center and Dr. Rajendran. Plaintiffs have not demonstrated that these defendants were improper parties to the action as this action has not been dismissed as against them (i.e. by way of summary judgment) nor have plaintiffs voluntarily discontinued against them as improper parties ( cf. Clase v. Sidoti , 20 AD3d 330 [change of venue granted after plaintiff acknowledged that she had no claim against hospital by releasing it from action]; Crew v. St. Joseph's Med. Ctr. , 19 AD3d 205 [venue changed where plaintiffs voluntarily discontinued case against doctor because they determined him to be "legally blameless," rendering him improper party from beginning]; see also Yanez v. Western Beef, Inc. , 28 AD3d 751 [movants failed to demonstrate improper party; motion to change venue denied without prejudice to renewal if defendant is dismissed from action on motion practice]).
In any event, by commencing this action in an improper venue in the first instance, plaintiffs forfeited the right to designate venue ( see Mei Ying Wu v. Waldbaum, Inc., 284 AD2d 434; Kaplan v. Waldbaum's Inc., 208 AD2d 683; Nixon v. Federated Dept. Stores, 170 AD2d 659; Papadakis v. Command Bus Co., 91 AD2d 657). Furthermore, although this Court is not precluded from entertaining plaintiffs' motion to change the venue of the action as a matter of discretion ( see Mei Ying Wu v. Waldbaum, Inc., 284 AD2d at 435), plaintiffs' motion neither alleges nor demonstrates that the convenience of material witnesses and the ends of justice will be promoted by the change ( see CPLR 510). Additionally, plaintiffs have failed to show that Westchester is an improper county inasmuch as the remaining defendant, Dr. Aro, has no significant ties to Bronx County and has relevant ties to Westchester County, and the claims in this action arise out of the treatment rendered to the patient exclusively in Westchester County ( see Creed v. United Hosp., 158 AD2d 654, 655 ["all other things being equal, a transitory action should be tried in the county in which the claim arose, absent cogent reasons warranting trial elsewhere"]).
For all of the above reasons, the cross-motion to change venue is denied.