| Mitchell v Lograno |
| 2013 NY Slip Op 05440 [108 AD3d 689] |
| July 24, 2013 |
| Appellate Division, Second Department |
| Isaiah Mitchell, an Infant, by His Mother and NaturalGuardian, Vivonne Mitchell, Respondent, v Paul Lograno, M.D., Appellant, etal., Defendants. |
—[*1] Fitzgerald & Fitzgerald, P.C., Yonkers, N.Y. (John E. Fitzgerald, John M. Daly,Eugene S. R. Pagano, Mitchell Gittin, John J. Leen, and Christopher J. Lennon ofcounsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, the defendantPaul Lograno appeals (1), as limited by his brief, from so much of an order of theSupreme Court, Suffolk County (Pitts, J.), dated August 2, 2011, as denied that branch ofthe motion of the defendants Paul Lograno, Dennis Strittmatter, and Suffolk Obstetrics &Gynecology, LLP, which was for summary judgment dismissing the complaint and allcross claims insofar as asserted against him, and (2) from an order of the same courtdated March 27, 2012, which denied his motion, in effect, for leave to reargue the priormotion.
Ordered that the order dated August 2, 2011, is reversed insofar as appealed from, onthe law, and that branch of the motion of the defendants Paul Lograno, DennisStrittmatter, and Suffolk Obstetrics & Gynecology, LLP, which was for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against thedefendant Paul Lograno is granted; and it is further,
Ordered that the appeal from the order dated March 27, 2012, is dismissed, as noappeal lies from an order denying a motion for leave to reargue; and it is further,
Ordered that one bill of costs is awarded to the defendant Paul Lograno.
Two days before her expected delivery date, Vivonne Mitchell (hereinafter themother) underwent a non-stress test (hereinafter NST) at the defendant SuffolkObstetrics & Gynecology, LLP (hereinafter SOG). An NST consists of monitoring thefetal heart beat with an electronic fetal heart monitor while the fetus is not stressed. TheNST was "non-reactive," meaning that the fetus's heart rate did not have anyaccelerations above the baseline. The mother was referred to St. Charles Hospital(hereinafter the hospital) for further evaluation. The mother arrived at the hospital at11:15 a.m. The defendant Paul Lograno, an employee of SOG, was the on-call doctor atthe hospital for SOG patients at the time the mother arrived.[*2]
The mother was brought to a labor room forobservation. At 12:10 p.m., Lograno reviewed the fetal heart monitor strip, whichindicated fetal movement and reactivity. Lograno ordered a biophysical profile forfurther evaluation of the fetus since the mother had been referred because of anon-reactive NST. The mother returned to the labor room after further testing at 2:35p.m. Lograno received the results of the biophysical profile and saw the mother at 2:55p.m.
Lograno discussed with the mother the risks and benefits of certain alternatives,including delivery by cesarean section, and induction of labor through pitocin for vaginaldelivery. Lograno admitted the mother to the hospital at 3:00 p.m. with a plan for avaginal delivery induced by pitocin. Lograno's on-call shift ended at 6:00 p.m., at whichtime he was relieved by the defendant Dennis Strittmatter. Strittmatter agreed with theplan to deliver with the use of pitocin to induce labor and ordered pitocin at 7:00 p.m.Pitocin was administered at 7:50 p.m. The infant plaintiff was delivered vaginally byStrittmatter at 5:12 a.m. the following day.
The mother, on behalf of the infant plaintiff, commenced this medical malpracticeaction against Lograno, among others, to recover damages for personal injuries allegedlysustained by the infant plaintiff. The plaintiff alleges that as a result of, inter alia, thefailure to perform a cesarian section, he sustained various injuries, including braindamage. Lograno, Strittmatter, and SOG (hereinafter collectively the moving defendants)moved for summary judgment dismissing the complaint and all cross claims insofar asasserted against them. The Supreme Court denied the motion.
"The requisite elements of proof in a medical malpractice action are a deviation ordeparture from accepted community standards of medical practice, and evidence thatsuch deviation or departure was a proximate cause of injury or damage" (Lau v Wan, 93 AD3d 763,765 [2012]; see Castro v NewYork City Health & Hosps. Corp., 74 AD3d 1005 [2010]; Deutsch v Chaglassian, 71AD3d 718, 719 [2010]; Geffner v North Shore Univ. Hosp., 57 AD3d 839, 842[2008]). "A defendant physician moving for summary judgment in a medical malpracticeaction has the initial burden of establishing, prima facie, either the absence of anydeparture from good and accepted medical practice or that any departure was not theproximate cause of the alleged injuries" (Lau v Wan, 93 AD3d at 765; see Shichman v Yasmer, 74AD3d 1316 [2010]; Larsenv Loychusuk, 55 AD3d 560, 561 [2008]; Sandmann v Shapiro, 53 AD3d 537 [2008]).
Here, Lograno met his initial burden of demonstrating that he did not deviate fromaccepted medical practice through his deposition testimony and his expert's affidavit (see Garbowski v Hudson Val.Hosp. Ctr., 85 AD3d 724, 726 [2011]). In her affidavit, Lograno's expert, aboard-certified obstetrician/gynecologist, Dr. Hilma Yu, opined that, as of the time thatLograno's on-call shift at the hospital was ending, Lograno correctly determined, basedon the results of the biophysical profile and the continued fetal heart monitoring tracings,that delivery by cesarean section was not yet indicated (see Lau v Wan, 93 AD3dat 765; Sandmann vShapiro, 53 AD3d 537 [2008]).
Contrary to the Supreme Court's conclusion, Yu did explain both the significance ofa non-reactive stress test and the results of the biophysical profile. Yu fully explained theterminology involved in assessing the fetal heart monitoring strips for fetal well-beingversus fetal distress. Yu opined that urgent delivery of the infant plaintiff by cesareansection was not indicated, and it was appropriate and within good and accepted medicalpractice for Lograno not to deliver the baby, and to admit the mother for delivery withplacement back on the external fetal heart monitor.
Yu further stated that from about 3:00 p.m. until Lograno's shift ended at 6:00 p.m.,the fetal heart rate and any contractions were appropriately monitored. Yu stated thatthroughout Lograno's shift, the fetal heart monitoring strips showed that the fetus wasdoing well and was not in distress since there were accelerations, there were nodecelerations, there was good long-term variability, and there was no tachycardia orbradycardia, terms she also explained in her affidavit.
Yu concluded, in sum, that in her opinion, with a reasonable degree of medicalcertainty, Lograno's care and treatment was appropriate and in accordance with good andaccepted medical practice in all respects. Yu stated that all testing, evaluations, andtreatment ordered or [*3]performed by Lograno wereappropriate, and there was no further testing, evaluation, or treatment which he shouldhave ordered or performed.
In opposition, the plaintiff failed to raise a triable issue of fact (see Cerny v Williams, 32AD3d 881, 882 [2006]; cf. Garbowski v Hudson Val. Hosp. Ctr., 85 AD3dat 727). The plaintiff's expert affirmation stated that the fetal heart monitor tracingsshowed fair to poor long-term fetal heart rate variability from 5:30 p.m. until the time ofthe delivery at 5:12 a.m. However, the plaintiff's expert never stated that Logranodeparted from good and accepted standards of medical care; rather, the plaintiff's expertconcluded that Strittmatter should have delivered the infant plaintiff throughcesarean section by 12:40 a.m. or, at the latest, by 3:00 a.m. Thus, the plaintiff failed toraise a triable issue of fact as to whether Lograno, whose shift ended at 6:00 p.m.,departed from good and accepted standards of medical care (see Cerny vWilliams, 32 AD3d at 882; cf. Garbowski v Hudson Val. Hosp. Ctr., 85AD3d at 727).
Lograno also established his entitlement to judgment as a matter of law dismissingthe cause of action alleging lack of informed consent through the submission of themedical records and Lograno's deposition testimony (see Johnson v Staten Is. Med. Group, 82 AD3d 708[2011]; Luu v Paskowski,57 AD3d 856, 858 [2008]; Aharonowicz v Huntington Hosp., 22 AD3d 615, 615[2005]). The plaintiff failed to raise a triable issue of fact in opposition. The plaintiff'sexpert only stated that it was a departure for Strittmatter to have failed to recommend andobtain the mother's consent for a cesarean section delivery by 12:40 a.m. or, at the latest,by 3:00 a.m. The plaintiff and the plaintiff's expert did not otherwise address theallegation of lack of informed consent (see Luu v Paskowski, 57 AD3d at 858;Rebozo v Wilen, 41 AD3d457, 459 [2007]). Moreover, Lograno did not order or administer the pitocin and didnot deliver the infant plaintiff. Therefore, Lograno did not perform a "non-emergencytreatment, procedure or surgery" or "a diagnostic procedure which involved invasion ordisruption of the integrity of the body" (Public Health Law § 2805-d [2]; see Lorenzo v Kahn, 74 AD3d1711, 1713 [2010]; Deutsch v Chaglassian, 71 AD3d at 719-720;Domaradzki v Glen Cove Ob/Gyn Assoc., 242 AD2d 282 [1997]).
Accordingly, the Supreme Court should have granted that branch of the movingdefendants' motion which was for summary judgment dismissing the complaint and allcross claims insofar as asserted against Lograno. Mastro, J.P., Hall, Lott and Sgroi, JJ.,concur. [Prior Case History: 2011 NY Slip Op 32136(U).]