| Olinsky-Paul v Jaffe |
| 2013 NY Slip Op 02440 [105 AD3d 1181] |
| April 11, 2013 |
| Appellate Division, Third Department |
| Ruby Olinsky-Paul, an Infant, by Ronda Olinsky-Paul, HerMother and Guardian, et al., Respondents, v Ira Jaffe et al., Respondents, and NorthernDutchess Hospital, Appellant. |
—[*1] Napoli, Bern, Ripka & Shkolnik, LLP, New York City (Denise A. Rubin of counsel),for Ruby Olinsky-Paul and another, respondents. Steinberg, Symer & Platt, LLP, Poughkeepsie (Ellen A. Fischer of counsel), for IraJaffe and another, respondents.
Garry, J. Appeal from an order of the Supreme Court (Work, J.), entered March 5,2012 in Ulster County, which, among other things, partially denied a motion bydefendant Northern Dutchess Hospital for summary judgment dismissing the complaintagainst it.
In 2004, plaintiff Ronda Olinsky-Paul (hereinafter plaintiff) gave birth to plaintiffRuby Olinsky-Paul (hereinafter the infant) at defendant Northern Dutchess Hospital(hereinafter NDH) in the Town of Rhinebeck, Dutchess County. Plaintiff had contractedwith defendant Julia Lange Kessler to serve as midwife for her planned home birth andwith defendant Ira Jaffe, an obstetrician, to provide emergency medical services at NDHif needed. Kessler detected signs of fetal distress during plaintiff's labor and transferredher to NDH, where Jaffe performed an emergency cesarean section, assisted by defendantDaniel Melamed, a physician, and defendant [*2]LucasTerranova, an anesthesiologist. The infant was subsequently diagnosed with severeimpairments allegedly resulting from a lack of oxygen during birth.
Plaintiffs initiated this medical malpractice action alleging, among other things, thatNDH negligently failed to make an operating room and staff available on a timely basis.NDH moved for summary judgment dismissing all claims against it. Supreme Courtgranted the motion as to NDH's alleged vicarious liability for the acts of otherdefendants, but denied it with respect to NDH's independent liability. NDH appeals.
As the movant seeking summary judgment, NDH was required to establish on aprima facie basis that its medical treatment did not depart from accepted standards of careor that any such departure did not cause the injury (see LaFountain v Champlain Val. Physicians Hosp. Med. Ctr.,97 AD3d 1060, 1061 [2012]; Martino v Miller, 97 AD3d 1009, 1009 [2012]). To thisend, NDH submitted the affidavit of an expert physician and the deposition testimony ofplaintiff and several of the medical professionals involved in her treatment. Thephysicians who assisted Jaffe with the cesarean section testified that they were alreadypresent at NDH before the surgery was ordered. Terranova stated that he was advisedthat a cesarean section might be required before plaintiff arrived at NDH andimmediately began preparing for this eventuality; he stated that a surgical team had beenassembled and an operating room prepared before Jaffe determined that the surgery wasnecessary. Melamed testified that he arrived on the obstetrical floor no more than twominutes after Jaffe asked for his assistance, and Jaffe himself testified that he did notrecall any difficulty in assembling a surgical team to assist with the operation.
However, NDH's submissions also include conflicting evidence that supportsSupreme Court's denial of summary judgment. Jaffe's operative report appears tocontradict Terranova's statement regarding the availability of a surgical team, stating thatafter Jaffe ordered the cesarean section he "had the patient continue to bear down whileawaiting the [operating room] team." Melamed testified that he was the only person inthe operating room when he arrived after Jaffe summoned him, and that he waited therefor "sometime" until others appeared. Significantly, the medical records reveal anunexplained delay of 25 to 50 minutes between Jaffe's order for surgery and plaintiff'stransfer to the operating room. Plaintiff testified that she asked why she was not yet insurgery and was told by several medical staffers that there was no team or noanesthesiologist. She further stated that she heard Jaffe say that he "could get this babyout in two minutes if anesthesia comes." Another witness testified that "they werewaiting for people to come" before plaintiff was taken to the operating room.
NDH's expert physician, Frederick Feiner, failed to address this apparent delay inwhat was undisputedly an emergency procedure. Although he discussed other factspertaining to the surgery in some detail and opined, among other things, that NDHcomplied with the applicable standard of care by "promptly assembl[ing]" a surgicalteam, Feiner neither mentioned the lapse in time before this team took over plaintiff'scare nor opined as to whether this lapse was consistent with accepted medical practices.To establish a party's entitlement to summary judgment, a physician's affidavit "must bedetailed, specific and factual in nature" and may not simply assert in conclusory fashionthat a defendant complied with the standard of care without relating the contention to theparticular facts at issue (LaFountain v Champlain Val. Physicians Hosp. Med.Ctr., 97 AD3d at 1061 [internal quotation marks and citations omitted]; seeToomey v Adirondack Surgical Assoc., 280 AD2d 754, 755 [2001]). In the absenceof any factual discussion of the delay, Feiner's general assertion that NDH "acted at alltimes in a prompt, timely, and reasonable manner" lacks specificity. Accordingly, NDHfailed to establish its prima [*3]facie entitlement tosummary judgment, and it is unnecessary to address the sufficiency of plaintiffs'opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 325-327 [1986];LaFountain v Champlain Val. Physicians Hosp. Med. Ctr., 97 AD3d at 1062).
Mercure, J.P., Spain and McCarthy, JJ., concur. Ordered that the order is affirmed,with one bill of costs.