A woman filed for medical malpracticeaction wherein she alleges that the accused parties negligently departed from good and accepted standards of medical/obstetrical care and treatment and failed to give her informed consent during her admission to the University Hospital relating to her pregnancy, labor and delivery of her infant. It is further claimed that the accused parties failed to provide the infant with proper medical care and treatment and otherwise departed from good and accepted standards of care, causing the infant to suffer serious and severe birth injury. It is claimed in the verified bill of particulars that the infant suffered iatrogenic prematurity, brain injury, static encephalopathy, cerebral palsy, ataxia, global developmental delays, respiratory distress syndrome, persistent pulmonary hypertension, chronic respiratory disorder, respiratory disease syndrome, high bilirubin blood level, stomach reflux, pronated lower extremities, reactive airway disease, cognitive impairment and delays, communicative impairment and delays, difficulty seeing with his left eye, pervasive development disorder, autistic spectrum disorder, loss of enjoyment of life, social-emotional developmental delay, and impaired earning capacity. It is claimed that the infant has been caused to require early intervention services, physical therapy, occupational therapy, speech therapy, and may require custodial care, medical care including therapies and equipment and special residential accommodations and modifications.
It is noted that a demand of discontinuance was filed with the Court and the accused parties are moving for summary judgment to dismiss the complaint asserted against them on the basis that they bear no liability in the action.
A New York Injury Lawyer said that in support of motion, the accused parties have submitted an attorney’s affirmation, affidavits, copies of the summons and complaint, the moving accused parties’ answers, the woman’s verified bill of particulars, uncertified copy of the memorial hospital record, transcripts of the examinations before trial, certified and illegible copy of hospital record and an uncertified copy of the University Hospital record.
In support of the cross-motion, the accused parties have submitted an attorney’s affirmation and a doctor’s affirmations, copies of the summons and complaint, answers of the moving accused parties, the woman’s bill of particulars, a copy of the University Hospital medical record for the woman, and the transcripts of the examination of the woman.
It is noted in the university hospital record that the woman was admitted with diagnosis of premature labor. She had prior confidential pregnancy termination and was noted to be on her 33rd week of pregnancy. The infant was estimated to be about five pounds. She complained of feeling pulling in her upper abdomen followed by rupture of the membranes with clear yellow-tinged fluid. Fetal movement was then reported fine and there was no vaginal bleeding. She had been seen at the Hospital where she was ruled/in for rupture of the membranes. She was given medication and was transported to the University Hospital. Upon admission, the fetal heart rate was noted to be 130’s to 140’s. On October 12, 1997, the nurse’s note showed that a family member alerted the nursing staff that the woman was in the bathroom with the umbilical cord hanging out. One nurse placed her hand up the vaginal track to relieve pressure on the cord and another nurse called the doctor. A Long Island Personal Injury Lawyer said the woman was transferred to the labor and delivery room in a knee/chest position and an emergent caesarean section was performed by the attending gynecologist. General anesthesia was administered by an anesthesiologist. The birth report indicates that the woman delivered a male infant.
The woman testified that she saw the gynecologist for prenatal care and she was at home with her sister-in-law when her water broke. She called up her doctor and did not waste time in going to the hospital. Her gynecologist examined her and had her transferred to the university hospital since the prior hospital has no neonatal intensive care unit. Upon arrival at the university hospital, she was seen by a female doctor, and then she was transferred to labor and delivery, where she was seen by a male doctor. A sonogram was performed. The catheter which was inserted at the prior hospital was removed. She was advised she could use the bathroom and was assisted by the nurse when she first used it, and thereafter was permitted to use it without assistance. Another sonogram was performed because she was cramping. On October 12th, she felt something when she was wiping herself when she went to the bathroom and saw blood. She thought it was the baby coming out. Her sister-in-law went for help which took about five minutes. A nurse came and went to get further assistance and the nurse returned with a stretcher. She was still on the toilet so they told her to get on the stretcher and the nurse inserted her hand to hold the baby’s head up from the cord. She was taken to the operating room and three days later, she was told that her baby had lung problems, was intubated and her baby was critical.
A university hospital doctor claims that he had no independent recollection of the woman but remembered the care and delivery and conversations with her. The gynecologist attending on that date clinically supervised the doctor and taught him in the care and treatment of obstetrical patients. He was responsible for pre and post-partum patients admitted to the service of her attending physician. When he began his shift on October 12th, the gynecologist and the resident were outgoing. A Weschester County Personal Injury Lawyer said the doctor testified that after he was notified, the woman has prolapse the umbilical cord and he saw her immediately and accompanied her to the operating room where she was prepped for an emergency caesarean section.
A hospital employee testified at her examination before trial that she was an employee of the university hospital from 1997 to 1999. She is as an attending physician in the division of maternal-fetal medicine and is licensed to practice medicine in the State and is board certified in obstetrics and gynecology. She was present for the delivery of the woman on October 12, 1997 as she was the attending covering labor and delivery from 7 a.m. on October 12th through 7 am October 13th but she had no recollection of the woman. She was also supervising residents for inpatients under the service wherein they discussed patients and made a plan of management. The attending physicians were residents in 1997. She had a sign-out meeting with one of the attending physician when she came on duty. A physician who assisted also testified that she could not remember if she made the incision or if the resident did, but it was custom and practice to have the resident make the incision and that she supervised him. A physician testified at his examination before trial that he was an attending generalist anesthesiologist on staff at the university hospital. The supervising anesthesiologist was supervising the physician with the anesthesia for the woman. He had no independent memory of the woman. On October 12, 1997, he was assigned as the attending anesthesiologist for patients needing anesthesia service in the obstetric suite. The anesthesia prepared by him and indicates that the woman understood and agreed to proceed with general anesthesia for a caesarian prolapsed. He stated the section was urgent and had to be performed as soon as was possible. Under the circumstances, his conversation with the patient would have been very brief, asking if she had any medical problems, took any medications, had any allergies. He would have explained to her that he was going to be giving her general anesthesia to deliver her baby. In the case, due to the urgency of the situation, general anesthesia would have been the only option. It would have taken about one to two minutes to position her on the table in a supine position with a left lateral tilt for fetal consideration and to optimize the perfusion of blood flow to the fetus. The anesthesia start time was 5:16 for a rapid sequence induction. The infant was delivered at 5:21 p.m.
The requisite elements of proof in a medical malpractice action are deviation or departure from accepted practice, and evidence that such departure was a proximate cause of injury or damage. To prove a legitimate case of medical malpractice, a complainant must establish that the accused parties’ 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 injury. In a medical malpractice action, the moving parties’ papers must set forth everything that the accused does during the treatment of the patient and indicate that the treatment is not the proximate cause of the patient’s complaints. An accused meets this burden by establishing that there was no duty of care breached to the patient.
Turning to motion, the accused seeks summary judgment dismissing the complaint against them. The affirmation of defendants’ expert has been submitted. Based upon the foregoing, the physicians have demonstrated legitimate complaint privilege to summary dismissal of the complaint as asserted against each of them. It has been established that, as a resident, each was working under the supervision and direction of a supervising attending physician and did not exercise independent medical judgment in their care and treatment of the woman.
A resident who assists a doctor during a medical procedure, and who does not exercise any independent medical judgment, cannot be held liable for malpractice so long as the doctor’s directions did not so greatly deviate from normal practice that the resident should be held liable for failing to intervene. A private physician may be held vicariously liable for conduct of a resident physician where the resident is under the direct supervision and control of the private physician at the time of the conduct; the key is whether the resident exercises independent medical judgment. Here, the record supports that the moving parties were each working under the supervision and control of their respective attending physician and only acted within the scope relating to what care and treatment was approved by the attendees. The complainants, who have not opposed the motion, have not raised a factual issue to preclude summary judgment dismissing the complaint. Accordingly, the motion is hereby granted and the complaint asserted against the moving party is dismissed with prejudice.
Based upon the foregoing, the court finds that the resident physician have demonstrated legitimate entitlement to summary judgment do dismiss the complaint on the issue that they did not depart from good and accepted standards of medical care and that they did not proximately cause any of the injuries which it is claimed that the infant suffers from. The complainants have not opposed the motion and therefore have failed to raise a factual issue to preclude summary judgment.
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