| LeMaire v Kuncham |
| 2013 NY Slip Op 00067 [102 AD3d 659] |
| January 9, 2013 |
| Appellate Division, Second Department |
| Brian LeMaire et al., Appellants, v SudhaKuncham et al., Defendants, and Lewis Rosenberg,Respondent. |
—[*1] Heidell, Pittoni, Murphy & Bach, LLP, New York, N.Y. (Daniel S. Ratner ofcounsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice and lack ofinformed consent, etc., the plaintiffs appeal, as limited by their brief, from so much of anorder of the Supreme Court, Nassau County (Woodard, J.), dated May 24, 2011, asgranted the motion of the defendant Lewis Rosenberg for summary judgment dismissingthe complaint insofar as asserted against him.
Ordered that the order is reversed insofar as appealed from, on the law and in theexercise of discretion, with costs, and the motion of the defendant Lewis Rosenberg forsummary judgment dismissing the complaint insofar as asserted against him is denied.
In an action sounding in medical malpractice, a defendant physician moving forsummary judgment must establish, prima facie, either that there was no departure fromaccepted medical practice, or that any departure was not a proximate cause of theplaintiff's injuries (see Faicco vGolub, 91 AD3d 817, 818 [2012]; Stukas v Streiter, 83 AD3d 18, 24 [2011]). Once adefendant physician has made such a showing, the burden shifts to the plaintiff todemonstrate the existence of a triable issue of fact with respect to the issues on which thedefendant met the prima facie burden (see Stukas v Streiter, 83 AD3d at 30).
In support of his motion for summary judgment, the defendant physician LewisRosenberg submitted, inter alia, a transcript of his deposition testimony and theaffirmation of an expert. Rosenberg testified at his deposition that at 3:30 a.m. onFebruary 19, 2006, he received a telephone call from the plaintiff Brian LeMaire(hereinafter Brian), informing him that the plaintiff Christine LeMaire (hereinafterChristine), who was pregnant at that time, was leaking fluid from her vagina, that "thebaby was in [breech] presentation," and that Christine was scheduled for a cesareansection on the following Tuesday. Rosenberg acknowledged that there was an increasedrisk of a prolapsed umbilical cord with a baby in a "single footling" breech or a "doublefootling" breech, and that Brian informed him that he did not think the leaking fluid wasurine. Rosenberg advised [*2]Christine to go to thehospital for an evaluation. A delivery nurse advised Rosenberg at approximately 5:00a.m. by telephone that Christine had a prolapsed umbilical cord, and that the fetal heartrate was low. At that juncture, Rosenberg determined that a cesarean section had to beperformed as soon as possible and proceeded to the hospital, where he performed thecesarean section at approximately 5:30 a.m. The child was delivered in a "severelydepressed" and "compromised" condition and ultimately died.
Rosenberg's expert stated in an affirmation that when Rosenberg received the 3:30a.m. telephone call, "there was no way" for him to know whether Christine had actuallyruptured her membranes and was leaking amniotic fluid, or was "actually experiencing. . . a rush of urine," so he acted appropriately in directing Christine to go tothe hospital for an evaluation. The expert further stated that once the nurse informedRosenberg by telephone at approximately 5:00 a.m. that Christine "had a prolapsed cordand was a breech presentation," he left home immediately and delivered the child at 5:31a.m. by cesarean section, "which was well within what would be deemed medicallyreasonable." The expert further stated, without any elaboration, that the child's "injuriesand ultimate demise were not caused or contributed to by any of the acts or omissions ofDr. Rosenberg." Since the opinion as to causation was presented in the most conclusoryof terms, Rosenberg did not establish his prima facie entitlement to judgment as a matterof law on that issue (see Faicco v Golub, 91 AD3d at 818). However, theaffirmation was sufficient to make a prima facie showing that Rosenberg did not departfrom accepted medical practice. Therefore, to defeat Rosenberg's prima facie showing,the plaintiffs were required to raise a triable issue of fact with respect to the issue ofwhether there was a departure from accepted medical practice (see Stukas vStreiter, 83 AD3d at 25).
Under the circumstances of this case, the refusal of the Supreme Court to considerthe plaintiffs' expert affidavit submitted in opposition to Rosenberg's motion for failureto comply with CPLR 3101 (d) (1) was an improvident exercise of discretion (see Rivers v Birnbaum, 102AD3d 26 [2012]). Rosenberg disclosed his own expert pursuant to CPLR3101 (d) (1) more than one month after the note of issue and certificate of readiness wasfiled, and approximately two weeks before he moved for summary judgment. There wasno justification for treating the parties differently, and no evidence of prejudice from theplaintiffs' late disclosure of their expert (see Hayden v Gordon, 91 AD3d 819, 820 [2012]).
Upon consideration of the affidavit of the plaintiffs' expert, submitted in oppositionto Rosenberg's motion, we conclude that the plaintiffs satisfied their burden of raising atriable issue of fact with respect to the issue of whether there was a departure fromaccepted medical practice. The expert noted in his affidavit that Christine's regularobstetrician, the defendant Sudha Kuncham, informed Rosenberg approximately one daybefore Christine went into labor of Christine's condition, which involved a fetus inbreech presentation. Further, Rosenberg was aware that the hospital did not have a doctoron call; therefore, according to the plaintiffs' expert, if Christine needed treatment at thehospital, it was Rosenberg's responsibility to provide it. The expert stated that "a fetus inbreech presentation with rupture of membranes is at great risk for suffering a prolapsedcord," and noted that Rosenberg agreed at his deposition that the risk of a prolapsed cordis increased in a single or double footling breech. In the opinion of the plaintiffs' expert,the leaking fluid described by Brian "should have been considered amniotic fluid untilproven otherwise," and that opinion was supported by Rosenberg's acknowledgment athis deposition that Brian told him he did not think the leaking fluid was urine. Theplaintiffs' expert further opined that Rosenberg "had an obligation to immediately go tothe hospital after the first conversation with [Brian] in order to fully evaluate the patientand be prepared to immediately perform a cesarean section." Thus, there are triable issuesof fact which preclude awarding Rosenberg summary judgment dismissing the complaintinsofar as asserted against him.
Rosenberg's remaining contentions are without merit.
In view of the foregoing, the order appealed from must be reversed insofar asappealed from, and Rosenberg's motion for summary judgment dismissing the complaintinsofar as asserted against him denied. Skelos, J.P., Balkin, Dickerson and Hinds-Radix,JJ., concur. [Prior Case History: 2011 NY Slip Op 31539(U).]