| Brown v Bauman |
| 2009 NY Slip Op 03033 [61 AD3d 540] |
| April 21, 2009 |
| Appellate Division, First Department |
| Sheila J. Brown et al., Appellants, v Jay M. Bauman,M.D., Defendant, and Dorothy A. Przydzial, M.D., et al.,Respondents. |
—[*1] Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York (Steven C. Mandell of counsel),for respondents.
Judgment, Supreme Court, Bronx County (Mark Friedlander, J.), entered August 5, 2008,granting summary judgment dismissing the complaint against defendants Przydzial and MountSinai, unanimously affirmed, without costs. Appeal from order, same court and Justice, enteredApril 8, 2008, granting the motion for summary relief, unanimously dismissed, without costs, assubsumed in the appeal from judgment.
Plaintiff patient alleges medical malpractice injury during childbirth. In an earlier ruling, weheld that defendant Bauman, the OB/GYN, was not negligent by reason of his failure to attendthe patient personally. We found no evidence of causation by him based on the speculativeallegation that if the patient had been properly examined, a "third/fourth degree laceration"would have been found; the efforts of plaintiffs' experts at " 'reasoning back' from the fact ofinjury to find negligence" amounted to "[h]indsight reasoning" that was "insufficient to defeatsummary judgment" (42 AD3d 390, 392 [2007]).
In granting summary dismissal herein, the court found the same fatal flaws in plaintiffs' caseas to the remaining defendants. Plaintiffs' theory is that crucial nerves in the patient's sphincterwere severed. Her perineal tear could not have caused her injuries unless it at least partly severedthe sphincter, yet plaintiffs failed to refute the defense demonstration that a second-degree tearwould not have extended into that muscle. Even assuming a relationship between the deliveryand a weakening of the patient's mid-anal canal wall, plaintiffs did not offer proof of a causalconnection between such possible weakening and any allegedly negligent act of the remainingdefendants. Plaintiffs' express theory is that the weakening resulted from the remainingdefendants' improper evaluation and negligently performed repair of the perineal lacerationsuffered during delivery. There is no explanation of how proper detection and repair of atear—even assuming it was "substantial"—would have led to the detection of aweakening in the mid-anal canal and referral of the patient to a colorectal surgeon.[*2]
No issue of fact is raised by plaintiffs' allegation of lackof informed consent. Concur—Andrias, J.P., McGuire, Acosta and DeGrasse, JJ.