| Callistro v Bebbington |
| 2012 NY Slip Op 02423 [94 AD3d 408] |
| April 3, 2012 |
| Appellate Division, First Department |
| Musa Callistro, an Infant, by His Mother and Natural Guardian,Jessica Rivera, Appellant, v Michael W. Bebbington, M.D., et al.,Respondents. |
—[*1] Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), forrespondents.
Judgment, Supreme Court, Bronx County (Howard H. Sherman, J.), entered December 7,2009, dismissing the complaint, affirmed, without costs. Appeal from order, same court andJustice, entered June 24, 2009, which granted defendants' motion for summary judgment,unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Plaintiff claims that defendants deviated from good and accepted medical practice by failingto perform a cesarean section during his birth on December 10, 2003, and that this failure causedhim to sustain a hypoxic event, which is responsible for expressive and language deficits and adevelopmental disorder that were diagnosed when he was about 4½ years old.
The court granted defendants' motion for summary judgment primarily on the ground thatexpert evidence disclosed that no hypoxic event occurred during plaintiff's birth and that plaintifffailed to raise a triable issue of fact because his main expert was unqualified to give an opinion,pursuant to the "locality rule" (see Pike v Honsinger, 155 NY 201, 209 [1898]).
We find that, while the locality rule may not apply here, defendants were correctly grantedsummary judgment because plaintiff did not raise factual issues as to either a departure or aresulting injury.
Defendants submitted the affirmation of Dr. Mary D'Alton, chairperson of the Department ofObstetrics and Gynecology at Columbia University-New York Presbyterian Hospital. Dr.D'Alton, basing her opinion on the medical records and testimonial evidence, a neurologicalevaluation of plaintiff in July 2008, and the complaint and bill of particulars, opined thatdefendants did not deviate from good and accepted medical practice, that no hypoxic incidentoccurred, and that no injury could be reasonably attributed to any act or omission by defendants.
Dr. D'Alton pointed to the postdelivery assessment of arterial and venous umbilical cordblood gases, both of which fell within normal limits. She also noted that plaintiff, whose deliverywas complicated by shoulder dystocia and a nuchal cord, was discharged from the hospital threedays after his birth, at which time he was "active, alert, voiding and stooling [*2]appropriately and feeding on demand." Dr. D'Alton concluded thatthe normal cord gas measurements and plaintiff's speedy discharge were "entirely inconsistentwith an alleged hypoxic injury occurring during labor and delivery." Dr. D'Alton also averred thatthe fetal monitoring strips, which are in evidence, indicated that any variable decelerations werefollowed by quick recovery to baseline and that there was no indication of fetal distress.
With respect to the delivery and subsequent treatment, Dr. D'Alton found that defendantseffectively managed the delivery complications, including both the shoulder dystocia and thenuchal cord. She noted that Dr. King successfully performed a procedure called a "Wood's screwmaneuver" to address the dystocia and deliver the shoulder, and added that nuchal cords occur inabout 25% of all births and have no bearing on whether to perform a cesarean delivery.
Dr. D'Alton also noted that the July 2008 neurological evaluation of plaintiff, who was thenabout four years and seven months old, was inconsistent with plaintiff's allegation that he suffersfrom "Pervasive Developmental Disorder." The examining physician, Dr. Regina R. DeCarlo, apediatric neurologist, did not detect any focal or motor neurological deficits. Dr. DeCarlo sawevidence of a developmental disorder of receptive and expressive language and a disorder ofarticulation, but found that plaintiff otherwise performed at the four-to-five-year level.
In opposition, plaintiff submitted affirmations from Dr. Bruce Halbridge, an obstetrician andgynecologist based in Texas, and Dr. Bruce Roseman, a pediatric neurologist practicing in WhitePlains, New York. Dr. Halbridge found various departures but limited his findings of causationto the following: He opined that once the mother was admitted on the morning of December 9,2003 and defendants employed a fetal heart rate monitor, defendants should have abandonedtheir plan for a vaginal birth and instead delivered plaintiff by cesarean section. According to Dr.Halbridge, as of the morning of December 10, the fetal heart rate monitor had shown a"nonreassuring" pattern of late and variable decelerations. Dr. Halbridge contended that plaintiffwas delivered in a hypoxic, "depressed" condition, and that, based on a December 11, 2003sonogram, he had "possible small bilateral grade 1 subependymal hemorrhages."
Dr. Roseman's affirmation was based on his own examination of plaintiff in December 2008,just after plaintiff turned five. Like Dr. DeCarlo, Dr. Roseman detected speech and languagedeficits and an articulation disorder. He stated that he agreed with Dr. Halbridge's opinion aboutthe etiology of plaintiff's injuries, and opined that "[t]here is nothing in the child's medicalhistory, other than the abnormal labor and delivery, that would account for his deficits in speechand language."
Contrary to the dissent's contention, neither Dr. Halbridge's nor Dr. Roseman's opinion raisesa triable issue as to causation, since each fails to address how the claimed departures could havecaused the claimed cognitive delays. Dr. Halbridge failed to rebut Dr. D'Alton's key assertion thatthe normal values for plaintiff's umbilical cord gas were "entirely inconsistent" with hypoxicinjury. Dr. Halbridge did not dispute Dr. D'Alton's opinion that the gas test results completelyruled out hypoxia or the fact that the hospital record attributes the first (low) Apgar score to thenuchal cord. Rather, he ambiguously stated that "loss of beat to beat variability coupled with latedecelerations . . . enhance[ ] the likelihood that the fetus is undergoingsignificant hypoxia" (emphasis supplied) and that "[t]his occurred in the present case,notwithstanding the normal umbilical cord blood gas values that were obtained." Dr. Halbridge'sstatement amounted to bare conjecture, which lacks the "reasonable degree of medical certainty"required in an expert affidavit in a medical malpractice case (see Burgos v Rateb, 64 AD3d 530, 530 [2009]). Moreover, Dr.Halbridge ignored Dr. D'Alton's further point that plaintiff's [*3]discharge three days after his birth disproved his claimed injury.Finally, Dr. Halbridge did not explain how the December 11 neurosonogram, which indicated"possible" hemorrhages, could show that the plaintiff suffered permanent brain damage, as Dr.Roseman concluded, since a follow-up neurosonogram performed one month later showed noevidence of hemorrhaging.
Dr. Roseman opined in conclusory fashion that the hypoxic-ischemic stress and other traumathat occurred during the delivery resulted in permanent brain damage, primarily to the neocortex,which in turn caused plaintiff's speech and language disorder. However, Dr. Roseman failed tosupport this opinion with a radiological study of plaintiff's brain or any other medical recorddemonstrating brain damage other than language delay. Dr. Roseman's assertions that "[t]here isnothing in [plaintiff's] medical history, other than the abnormal labor and delivery, that wouldaccount for his deficits in speech and language" and that the deficits resulted from his permanentbrain damage are entirely conclusory. In fact, the record shows that plaintiff's cousins suffer fromsimilar language deficits.
As a final matter, summary judgment should have been granted to defendant Dr. MichaelBebbington for the separate reason that he was not involved in caring for or treating plaintiff.Concur—Tom, J.P., Friedman, Freedman, and Richter, JJ.
Manzanet-Daniels, J., dissents in part in a memorandum as follows: I agree with the majoritythat in rejecting Dr. Halbridge's affirmation, the motion court misapplied the "localityrule."[FN1]I would find, however, that plaintiff, through the expert affirmations of obstetrician-gynecologistDr. Halbridge and pediatric neurologist Dr. Roseman, raised a triable issue of fact as to whetherdefendants' deviations from good and accepted medical practice caused his neurological deficits.
Plaintiff's obstetrical expert opined that during plaintiff's mother's near 24-hour labor,plaintiff experienced multiple late decelerations indicative of placental insufficiency causing fetalhypoxia.[FN2]He opined that it was a departure for staff to deliver plaintiff vaginally with Pitocin [*4]augmentation under these circumstances. He explained thatdiminished beat-to-beat heart rate variability, coupled with late decelerations, enhances thelikelihood that the fetus is experiencing significant hypoxia. Plaintiff's expert examined the fetalheart monitoring strips in great detail and opined that by 11:52 p.m. on December 10, 2003, atthe latest, prompt delivery was essential to prevent further hypoxic-ischemic insult. Plaintiff'sexpert opined that plaintiff was delivered in a depressed condition as a result of central nervoussystem insult, noting that an ultrasound performed on the first day of life was positive forpossible grade I subependymal hemorrhages. It is undisputed that plaintiff presented withshoulder dystocia and the umbilical cord wrapped around the neck. His Apgar score immediatelyafter birth was four out of a possible 10 (two for heart rate, one for tone, and one for reflexirritability, with zero scores for respiratory effort and color), and seven at four minutes(respiration and color improved), after resuscitation with oxygen by bag and mask.
Plaintiff's pediatric neurologist noted that in addition to plaintiff's initial hypotonic, or"floppy" state, there was facial bruising, cephalohematoma, abdominal petechiae and separatedsutures, all indicative of a traumatic delivery in addition to a period of hypoxia-ischemia.
The very neurological report relied on by defendants in moving for summary judgmentindicates that plaintiff suffers from a developmental disorder of receptive and expressivelanguage development, that he has a disorder of articulation, and that he is fidgety, with a shortattention span. Although at the time of the examination, plaintiff was 4½ years old, he wasunable to count to 10 consistently or to sing the alphabet song. Plaintiff's pediatric neurologistnotes that there is nothing else in plaintiff's medical history, apart from the abnormal labor anddelivery, which would account for these deficits in speech and language. The nature of thesedeficits is such that they would not be immediately apparent, but would manifest at a later stageof development. I would accordingly find that plaintiff has sufficiently raised a triable issue offact concerning defendants' departures from accepted practice and causation. The conflictbetween the opinions of both sides' experts is one for a jury to resolve (see Cregan v Sachs, 65 AD3d 101,109 [2009]).
I agree, however, that the complaint was correctly dismissed as against defendant Dr.Bebbington, since the record does not reflect that he was involved in plaintiff's care ortreatment.[FN3]
Footnote 1: It cannot be denied that nationalstandards of care have reduced local variations in standards of care, eroding the justification forthe locality rule announced by the Court in Pike v Honsinger (155 NY 201 [1898]), in1898. In any event, our sister courts have agreed that where a medical expert proposes to testifyabout minimum standards of care applicable throughout the United States, the locality rule is notimplicated (see McCullough vUniversity of Rochester Strong Mem. Hosp., 17 AD3d 1063 [4th Dept 2005]).
Footnote 2: Plaintiff's expert opined thatrepetitive late decelerations (i.e., one that begins after a contraction starts but reaches a peak wellafter the peak of contraction is reached and does not return to baseline until 30 to 60 secondsafter the contraction is completed), particularly those marked by a prolonged return to baseline,signify a hypoxic state when they persist.
Footnote 3: Dr. King, the Fellow inMaternal Fetal Medicine on call at the hospital, delivered plaintiff.