Posted On: April 21, 2012 by Stephen Bilkis

Plaintiff Seeks Summary Judgement

On 26 May 2000, the infant plaintiffs (plaintiff-one and plaintiff-two), male twins were born prematurely at a hospital.

A New York Injury Lawyer said two separate actions arising out of the delivery of the infant plaintiffs were commenced. These two separate actions were joined for all pre-trial purposes and for trial, but were not consolidated as one Justice has opined that "Joint trial, rather than consolidation, will allow the trial judge to fashion procedures according to fairness." Therefore, separate motions should have been made; however, a separate motion for summary judgment has not been filed for the second action. Hence, the court will consider the motions only as they relate to the first action, concerning infant plaintiff-one.

The amended complaint is premised upon claims sounding in medical malpractice, lack of informed consent, a derivative claim for money damages, and further claim for emotional distress. It is claimed that infant plaintiff-one suffered, a birth injury or birth injury accident, particularly, neurological damage as a result of the negligence of the neonatologist (defendant-one), the obstetrician (defendant-two) and the hospital (defendant-three) where the children were born.

The mother alleges that she has been caused to expend various sums of money and suffer emotional distress due to the negligence of defendants. She claims the infant plaintiff-one was caused to sustain perinatal asphyxia causing him to suffer, inter alia, intracranial hemorrhage, leukomalacia, periventricular leukomalacia, laryogomalacia, brain damage, mental retardation, cerebral palsy, spasticity and spastic diplegia, cognitive defects, exotropia, ambyopia 0.S., severe delays in speech and language development, inability to perform all daily activities of speech and walking, severe delay in achieving milestones, severe impairment of fine motor skills, severe learning impairment, severe perceptual deficits, severe impairment of fine motor skills, respiratory distress, inability to interact with peers, loss of earning capacity, capability and opportunity, necessity for physical therapy, speech therapy and the need for future surgeries to treat the various contractures .

A NYC Personal Injury Lawyer said that the moving defendants allege there were no departures from the appropriate standards of care and treatment with regard to the care and treatment rendered to plaintiff and the infant plaintiffs and thus seek summary judgment dismissing the complaints.

Are the defendants entitled to a summary judgment?

The requisite elements of proof in a medical malpractice action are (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of injury or damage. To prove a prima facie case of medical malpractice, a plaintiff must establish that defendant's negligence was a substantial factor in producing the alleged injury. Except as to matters within the ordinary experience and knowledge of laymen, expert medical opinion is necessary to prove a deviation or departure from accepted standards of medical care and that such departure was a proximate cause of the plaintiff's injury.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented. Failure to make such a showing requires denial of the motion regardless of the sufficiency of the opposing papers. Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form and must "show facts sufficient to require a trial of any issue of fact". The opposing party must present facts sufficient to require a trial of any issue of fact by producing evidentiary proof in admissible form and must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established. A Manhattan Personal Injury Lawyer said that a summary judgment shall only be granted when there are no issues of material fact and the evidence requires the court to direct a judgment in favor of the movant as a matter of law.

Defendant-one presented various evidences in support of his defense. His medical expert opines with a reasonable degree of medical certainty that he acted appropriately and treated the infant plaintiffs within the accepted standards of medical care and that no action or inaction by him was the cause of any of the alleged injuries suffered by the infant plaintiff-one.

Defendant-one’s medical expert opines that both infants had brain damage at the time of birth, which, he states, was caused by a process that began significantly before the infants were born, and that no action or inaction by the defendant-one caused the brain damage or the injuries alleged; that infant plaintiff-one was significantly anemic with a hematocrit level of 36 at birth, and had significant brain damage documented on ultrasound shortly after birth, which, is strong and crucial evidence that the process that caused the infant-plaintiff-one to have periventricular leukomalacia began at least one week prior to birth; that the process of death of brain tissue and the resulting damage that can be seen on ultrasound takes a minimum of one week to develop and at least one week from the process to show up on an ultrasound; and that infant plaintiff-one suffered from an hypoxic-ischemic insult during the time he was in his mother's uterus, which insult decreased blood flow to the baby's brain.

Accordingly, the court finds that defendant-one has demonstrated prima facie entitlement to summary judgment on the issue of negligence and proximate cause.

Defendant-two also presented various evidences in support of his defense including two medical experts. However, the affirmation of his 1st medical expert has been excluded for it does not comment on the standard of care of an obstetrician during labor and delivery and the perinatal-neonatal period and therefore does not address the issues of whether or not defendant-two departed from accepted medical practice during his care and treatment of the mother and delivery of the infants. Defendant-two’s 2nd medical expert opines based upon a reasonable degree of medical certainty that he did not depart from good and accepted medical practices in his care and treatment of the mother. The 2nd medical expert states that defendant-two treated plaintiff mother as a high risk pregnancy, she was seen at proper intervals and had obstetrical sonograms, blood tests and evaluations appropriate to a high risk pregnancy.

The court finds that the notes or medical records presented by defendant-two are inconsistent with his medical expert’s opinion that "an infant sustaining asphyxia and/or hypoxic/anoxic event during the course of labor and delivery would not rebound in such manner and would remain depressed for a significant period of time." The medical records do not indicate the infant rebounded upon delivery. Although the medical expert opines the infant's heart rate remained at 130's throughout the procedures and delivery, it is documented as being in the 80's at birth and that the infant needed immediate intubation, ventilation, and was not responsive to any stimuli. There are factual issues raised concerning the medical expert’s opinion that the infant rebounded, and what is documented in the medical records.

Moreover, defendant-one’s note which considers that there was hypovolemia secondary to bruising, possible central nervous system injury and intraventricular hemorrhage also raises factual issues concerning the opinion of defendant-two’s medical expert that infant plaintiff-one did not suffer asphyxia and/or an hypoxic/anoxic event during the course of labor and delivery. The neonatal attending note (of defendant-one) indicated that it was a difficult delivery, R/O CNS trauma. The existence of these critical, triable, factual issues presented precludes summary judgment.

Accordingly, the court finds that defendant-two has not demonstrated prima facie entitlement to summary judgment and motion is therefore denied.

Defendant-three also presented various evidences in support of his defense including affirmations of a medical expert and a nurse; however, the affirmation of the latter did not constitute competent evidence. The rules provide that while certain persons are authorized to make an affirmation without appearing before a notary, nurses are not among them. On the affirmation of the medical expert, he expressed within a reasonable degree of obstetrical certainty that the hospital, by way of its staff, did not depart from good and accepted standards of obstetrical care and treatment of plaintiffs, that ail the care and treatment was appropriate, and that none of the allegations made by plaintiffs have any merit concerning the care and treatment rendered.

Defendant-three’s medical expert states that the hospital received the mother at her physician's directive and timely and appropriately carried out all his orders; the staff had no authority to override defendant-two’s orders; the mother’s staining was due to rupture of tiny blood vessels as the cervix softened and dilated and was not medically significant; the hospital had no duty to assign another obstetrician; the staff was in contact with defendant-two and appropriately apprised him of contractions and fetal heart rate; and that the hospital had no duty to transfer the mother to another hospital prior to her deliveries for it would have been more hazardous to risk delivery of premature twins in an ambulance or the roadside.

Accordingly, the court finds that defendant-three has demonstrated prima facie entitlement to summary judgment.

Now, the burden shifts to the plaintiffs to prove that triable issues of fact exist.

The plaintiffs have presented the affirmations of their obstetrical and pediatrics expert, among others.

Plaintiff's obstetrical expert opines with a reasonable degree of medical certainty that defendant-two and the hospital staff departed from good and accepted practice in the management of the labor and delivery of both infant plaintiffs, and that as a result of these departures, both infant-plaintiffs suffered permanent brain damage.

Plaintiff's obstetrical expert states that defendant-two had an obligation to evaluate the mother every three weeks and obtain a consultation by a perinatologist but did not do so. Defendant-two departed from good and accepted medical practice as he did not recognize the mother as a high risk.

Plaintiff's obstetrical expert opines that once defendant-two was informed by the mother that she was experiencing contractions and spotting blood, he should have known this was an ominous sign that she was experiencing premature labor, and because she was carrying twins with a distinct possibility of premature delivery, the standard of care dictated that he instruct her to go to another hospital with a level III Nursery equipped to deal with low birth weight infants and critical conditions to avoid further brain damage. This failure was a departure from accepted practice.
Plaintiff's obstetrical expert states that the mother was not evaluated by any physician or nurse for her first 43 minutes at the hospital, and the nurse testified that defendant-two never instructed her to do a vaginal exam, nor did he instruct her to call another obstetrician to evaluate the mother. Good practice dictated that if another obstetrician evaluated the mother during that 43 minute delay, a sonogram would have been performed revealing the presentation of each twin, followed by a vaginal examination revealing the station and dilation of the cervix, and in considering infant plaintiff-two was in a transverse lie, an immediate C-section would have been ordered avoiding significant injury to the twins. He states that there was no infection and that it played no role in the events in question.

Plaintiffs’ expert further opines that defendant-two departed from accepted standards by attempting a breech delivery instead of immediately performing a stat C-section to avoid further trauma and not as devastating hypoxic/ischemic brain damage. This attempted breech delivery caused further trauma to the infant as demonstrated by his bruising which was a significant factor in causing infant plaintiff-one’s devastating brain damage attributable to the external version, internal podalic version and external version and extraction.

Plaintiffs' expert further opines that the nursing staff of the hospital departed from good practice as it relates to the management of the labor and delivery of the mother. Good standards dictated that the attending nurse should have spoken to defendant-two to get permission to have another obstetrician examine the mother, or have the supervisor call defendant-two to come to the hospital immediately or have another physician examine the mother. Proper examination would have led to discovery of the transverse lie which would have led to an immediate C-section.

Plaintiffs' expert further opines that it was a departure from good practice by the hospital and the attending nurse not to do an ultrasound upon admission of the mother to determine the presentation of the fetuses, thus revealing the transverse lie, followed by vaginal examination and immediate C-section. This failure was a significant factor in causing the twins to suffer significant brain damage.

Plaintiffs also submitted the affirmation of their pediatric expert who states that that defendant-two and the nursing staff the hospital departed from good and accepted practice in the management of immediate neonatal care of both infant-plaintiffs, and as a result of these departures, both infant-plaintiffs suffered permanent brain damage.

Plaintiffs' pediatric expert opines that infant plaintiff-one was the product of both a premature and traumatic delivery process and was gasping for air at birth. He was noted by both defendant-one and the staff at the hospital to be severely bruised and battered; that it is clear that at the time of his delivery, infant plaintiff-one experienced significant brain injury from his prematurity and the traumatic delivery he experienced as evidenced by his Apgar scores, oxygen saturation levels, his significant anemia and respiratory capacity, all caused by hypoxic/ischemic damage suffered around the time of birth; that the significant anemia was caused by the traumatic delivery he experienced at the hands of defendant-two and the hospital’s staff due to bruising of his head and body.

In view of the above, the Court finds that plaintiffs have raised material, triable issues of fact precluding summary judgment to all three defendants.

The court's function in deciding upon a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility but to determine whether issues of fact exists precluding summary judgment.

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