| Fritz v Burman |
| 2013 NY Slip Op 04773 [107 AD3d 936] |
| June 26, 2013 |
| Appellate Division, Second Department |
| James Fritz et al., Appellants, v Dmitriy Burman etal., Respondents. |
—[*1] Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr.,and Michael K. Chin of counsel), for respondent Dmitriy Burman. Fumuso, Kelly, DeVerna, Snyder, Swart & Farrel, LLP, Hauppauge, N.Y. (Scott G.Christesen of counsel), for respondent Chinwe Offor. Lewis, Johs, Avallone Aviles, LLP, Islandia, N.Y. (Seth M. Weinberg of counsel),for respondent Mercy Medical Center. Westermann, Sheehy, Keenan, Samaan & Aydelott, LLP, White Plains, N.Y.(Timothy M. Smith and Jennifer J. Bennice of counsel), for respondents Marc Behar andMarc S. Behar, M.D., P.C.
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal, aslimited by their brief, from (1) so much of an order of the Supreme Court, Nassau County(Phelan, J.), entered December 6, 2011, as granted those branches of the separatemotions of the defendant Dmitriy Burman, the defendant Chinwe Offor, the defendantMercy Medical Center, and the defendants Marc Behar and Marc Behar, M.D., P.C.,which were for summary judgment dismissing the medical malpractice cause of actioninsofar as asserted by the plaintiff James Fritz against each of those defendants, (2) somuch of a judgment of the same court dated January 10, 2012, as, upon the order, is infavor of the defendant Mercy Medical Center and against the plaintiffs dismissing themedical malpractice cause of action insofar as asserted by the plaintiff James Fritzagainst that defendant, and (3) so much of a judgment of the same court dated January17, 2012, as, upon the order, is in favor of the defendants Marc Behar and Marc S.Behar, M.D., P.C., and against the plaintiffs dismissing the medical malpractice cause ofaction insofar as asserted by the plaintiff James Fritz against those defendants.
Motion by the respondent Mercy Medical Center on appeals, inter alia, from an orderof the Supreme Court, Nassau County, entered December 6, 2011, and a judgment of thesame [*2]court dated January 10, 2012, to dismiss theappeal from that order insofar as taken against it, in effect, on the ground that the right ofdirect appeal therefrom terminated upon entry of that judgment. By decision and order ofthis Court dated August 8, 2012, as amended August 28, 2012, among other things, themotion was held in abeyance and referred to the panel of Justices hearing the appeals fordetermination upon the argument or submission of the appeals.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon the argument of the appeals, it is
Ordered that the motion is granted; and it is further,
Ordered that the appeal from so much of the order as granted those branches of theseparate motions of the defendant Mercy Medical Center and the defendants Marc Beharand Marc S. Behar, M.D., P.C., which were for summary judgment dismissing themedical malpractice cause of action insofar as asserted by the plaintiff James Fritzagainst each of them is dismissed; and it is further,
Ordered that the judgments are reversed insofar as appealed from, on the law, thosebranches of the separate motions of the defendant Mercy Medical Center and thedefendants Marc Behar and Marc S. Behar, M.D., P.C., which were for summaryjudgment dismissing the medical malpractice cause of action insofar as asserted by theplaintiff James Fritz against each of them are denied, the medical malpractice cause ofaction insofar as asserted by that plaintiff against those defendants is reinstated, and theorder is modified accordingly; and it is further,
Ordered that the order is reversed insofar as reviewed, on the law, and those branchesof the motions of the defendants Dmitriy Burman and Chinwe Offor which were forsummary judgment dismissing the medical malpractice cause of action insofar as assertedby the plaintiff James Fritz against each of them is denied; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs, payable by the defendantsappearing separately and filing separate briefs.
The appeal from so much of the order as granted those branches of the separatemotions of the defendant Mercy Medical Center and the defendants Marc Behar andMarc S. Behar, M.D., P.C., which were for summary judgment dismissing the medicalmalpractice cause of action insofar as asserted by the plaintiff James Fritz against each ofthem must be dismissed because the right of direct appeal therefrom terminated with theentry of the applicable judgments in the action (see Matter of Aho, 39 NY2d 241,248 [1976]). The issues raised on the appeal from those portions of the order are broughtup for review and have been considered on the appeals from the judgments (seeCPLR 5501 [a] [1]).
In August 2001, the infant plaintiff, James Fritz, was born with hemolytic disease ofthe newborn, resulting from an incompatability between his blood and the blood of hismother. The plaintiffs allege that certain departures from accepted standards of caredelayed diagnosis and treatment of his condition, and constituted improper treatment ofhis condition, resulting in brain injury which manifested itself as a pervasivedevelopmental disorder.
The infant plaintiff exhibited some symptoms of fetal distress as early as July 29,2001, when his mother was admitted to the defendant Mercy Medical Center (hereinafterMercy) with a diagnosis of "decreased fetal movement." On August 12, 2001, the motherreturned to Mercy, again complaining of lack of fetal movement, with signs of anabnormal fetal heart rate. The defendant physician Marc Behar prescribed Cervidil toinduce labor. At 8:33 p.m., Mercy's laboratory logged in a blood sample from the mother,but the results of the test, which identified the "E" antibody which was causing the infantplaintiff's abnormal blood condition, allegedly were not available until the followingmorning.
At 9:46 p.m., Behar performed a nonemergency caesarean section. The infant [*3]plaintiff was born in a critical life-threatening condition,with no respiratory effort, and a heart rate of 60-to-80 beats per minute. The defendantphysician Dmitriy Burman resuscitated the infant, inserting an endotracheal tube, whichwas removed when the infant purportedly cried. However, in the neonatal intensive careunit, the infant plaintiff's respirations became shallow. Burman attempted to re-intubatethe infant twice, but his efforts were unsuccessful. An anesthesiologist was able tosuccessfully re-intubate the infant at 10:35 p.m.
At 11:00 p.m., the infant plaintiff suffered a temporary suspension of breathing, andat 11:10 p.m., the infant plaintiff suffered "seizure like movements . . . inthe extremities" for which phenobarbital was administered. The defendant physicianChinwe Offor examined the infant plaintiff at approximately 11:00 p.m., and noted thathis oxygen saturation level was 52%. After the re-intubation of the infant plaintiff with atube of a different size, his oxygen saturation level rose. Offor diagnosed the infantplaintiff as suffering from anemia, possibly secondary to blood-group incompatibility,and blood transfusions were administered. At 4:30 a.m. on the next day, Offor placed theinfant on high-frequency oscillatory ventilation.
In 2009, the plaintiffs commenced the instant action, inter alia, to recover damagesfor medical malpractice. After extensive discovery, the defendants separately moved forsummary judgment, among other things, dismissing the infant plaintiff's medicalmalpractice cause of action. In support of their motions for summary judgment, Mercyand Burman submitted expert affidavits concluding that they did not deviate fromaccepted standards of care. With respect to the issue of proximate cause, Dr. ArnoldGoldman stated, in his expert affidavit, that "the complications surrounding theinfant-plaintiff's birth . . . is a chronic process" that affected him before hismother was admitted to Mercy, and while he was still a fetus. Goldman noted that theinfant plaintiff was diagnosed with "Autism and ADHD," which "may have been causedby congenital/genetic conditions." Dr. Barry Kramer reached similar conclusions in hisaffidavit, stating that the infant plaintiff's hemolytic disease affected the infant plaintiff inthe fetal state, weeks before his mother was admitted to Mercy. Kramer concluded that,as a consequence of this preexisting condition, the infant plaintiff "would have had thesame injuries/complications even if the delivery had occurred earlier."
Similarly, Offor and Behar submitted expert affidavits opining that they did notdeviate from accepted standards of care. Behar's expert, Dr. Gary Mucciolo, noted thatBehar tested the mother for blood antibodies in December 2000, the test was negative,and Behar had no knowledge of the infant plaintiff's blood condition at the time of thedelivery. With respect to the issue of proximate cause, Mucciolo noted that a radiologystudy of the infant plaintiff's head prior to his discharge from Mercy was unremarkable,and a magnetic resonance imaging (hereinafter MRI) scan performed in 2004 showed noevidence of hypoxic brain injury. In Mucciolo's opinion, the infant plaintiff's pervasivedevelopmental disorder and autism had "no known etiology."
In opposition, the plaintiffs submitted the affidavit of Dr. Ronald J. Bolognese, whoconcluded that Mercy and Behar departed from good and accepted medical andobstetrical practice in delaying delivery, administering Cervidil to inducelabor—which increased stress on the infant—and failing to obtain a bloodprofile earlier than they did. Bolognese further noted that Behar also did not retain asonogram of the infant plaintiff taken on July 30, 2001, showing the circumference of theinfant plaintiff's abdomen, which was significant, since a distended abdomen is asymptom of hemolytic disease of the newborn, which was noticeably present when theinfant plaintiff was born.
Dr. Gregory Ross concurred with Bolognese, and noted that transfusions weredelayed until 12:10 a.m. on the day after delivery, more than two hours after the infantplaintiff's birth, because Mercy and Burman did not earlier complete and communicatethe results of a blood screen. In Ross's opinion, the delay resulted in cerebral hypoxia,and this condition was worsened by Burman's premature discontinuance of intubationafter delivery. Ross also stated that Burman and Offor departed from the acceptedstandard of care in initially setting the ventilator settings at a rate of 80 breaths perminute, which was an extremely and unusually high rate that, more likely than not, didnot allow sufficient time for air to enter the infant plaintiff's lungs, and in failing toprovide [*4]the infant plaintiff with nitrous oxide forinhalation.
Dr. Freddie Marton, the infant plaintiff's treating physician, stated in his affidavit,"with a reasonable degree of medical certainty," that the infant plaintiff sufferedneurological injury in the hours before his birth, which was aggravated by the "continuedcerebral hypoxia and poor oxygen delivery" after birth, resulting in "pervasivedevelopmental disorder, static encephalopathy and psychomotor retardation." Asevidence supporting his opinion, Marton noted that the infant plaintiff sufferedseizure-like movements at 11:10 p.m., on August 12, 2001. Although the infant plaintiffwas diagnosed with autism, according to Marton, further testing did not support thatdiagnosis. Marton further noted that a test for a fragile X chromosome associated withgenetic mental impairment was negative. Marton explained that, when the infant plaintiffwas six months old, he demonstrated a "significant disparity between the fine motordevelopment of the right and left upper extremities," which indicated "neurologicalinjury to the brain caused by the perinatal cerebral hypoxia." In Marton's opinion, thenormal findings from the MRI scan performed in 2004, which was performed withoutcontrast, and an electroencelphalogram, which was normal, did not disprove theexistence of hypoxic brain injury, because those tests were not sensitive enough.
On a motion for summary judgment dismissing a medical malpractice cause ofaction, a defendant must make a prima facie showing that there was no departure fromgood and accepted medical practice, or, if there was a departure, that the plaintiff was notinjured thereby (see Salvia v St.Catherine of Sienna Med. Ctr., 84 AD3d 1053 [2011]; Ahmed v New York City Health &Hosps. Corp., 84 AD3d 709, 710 [2011]; Stukas v Streiter, 83 AD3d 18, 24-26 [2011]). Once adefendant has made such a showing, the burden shifts to the plaintiff to "submitevidentiary facts or materials to rebut the prima facie showing by the defendant. . . so as to demonstrate the existence of a triable issue of fact" (Alvarezv Prospect Hosp., 68 NY2d 320, 324 [1986]; see Stukas v Streiter, 83 AD3dat 24).
The Supreme Court concluded that Behar and his professional corporation, MarcBehar, M.D., P.C. (hereinafter together the Behar defendants), Burman, and Offorestablished their entitlement to judgment as a matter of law in connection with thequestion of whether they departed from accepted standards of medical practice, whileMercy failed to establish its entitlement to judgment as a matter of law with respect tothat issue. However, it concluded that all of the defendants established their entitlementto judgment as a matter of law with respect to the issue of proximate cause.
The Supreme Court further concluded that Bolognese's affidavit raised a triable issueof fact as to whether the Behar defendants departed from accepted standards of medicalpractice. It disregarded Ross's affidavit because, although he was board-certified inpediatrics in 2000, he was not board-certified in pediatric critical care until 2004, threeyears after the alleged malpractice occurred. However, Ross was addressing issues withinhis specialization (see Behar vCoren, 21 AD3d 1045, 1047 [2005]), there is no evidence that standards of carechanged between 2001 and 2004, and there is no authority cited for the proposition thatan expert witness must be qualified as an expert, not only when he or she expresses anopinion, but also when the events in issue occurred. Accordingly, Ross's affidavit raisedtriable issues of fact as to whether Burman and Offor deviated from accepted standardsof medical practice.
With respect to the issue of proximate cause, some of the defendants' expertsconcluded that the infant plaintiff's developmental disorder may have been caused by hishemolytic disease at birth, and relied on the fact that this disease constitutes a "chronicprocess" that in all probability affected the infant plaintiff before the alleged medicalmalpractice occurred. The plaintiffs' experts, in opposition, stated with reasonablemedical certainty that the alleged medical malpractice worsened the infant plaintiff'scondition, causing both cerebral hypoxia and the subsequent symptoms of pervasivedevelopmental disorder. Marton, whose medical records indicated that the infant plaintiffwas diagnosed as suffering from autism, cited objective facts in the medical records,indicating that the infant plaintiff suffered a brain injury at birth: seizure-like symptomswere observed soon after birth and, at the age of six months, the infant plaintiffdemonstrated a difference of fine motor skills between the left and the right sides of hisbody. Contrary to the defendants' contentions, Marton's opinion was not directlycontradicted by his own [*5]deposition testimony, andany disparities between that testimony and prior documentary evidence indicating that theinfant was suffering from autism were explained (cf. Telfeyan v City of New York, 40 AD3d 372, 373[2007]). Thus, the Supreme Court erred in determining that Marton's opinion wasinadmissible pursuant to CPLR 3101 (d) (see Jing Xue Jiang v Dollar Rent a Car, Inc., 91 AD3d 603,604 [2012]; Hughes vWebb, 40 AD3d 1035 [2007]). Accordingly, the plaintiff raised triable issues offact with respect to the issue of proximate cause.
The defendants' remaining contentions either are without merit or need not beaddressed in light of our determination.
Accordingly, those branches of the defendants' motions which were for summaryjudgment dismissing the infant plaintiff's medical malpractice cause of action shouldhave been denied. Dillon, J.P., Chambers, Austin and Hinds-Radix, JJ., concur.