| Gressman v Stephen-Johnson |
| 2014 NY Slip Op 08318 [122 AD3d 904] |
| November 26, 2014 |
| Appellate Division, Second Department |
[*1]
| Noah Gressman, an Infant, by His Mother and NaturalGuardian, Nova Torres, Appellant, v Gail Allison Stephen-Johnson et al.,Respondents. |
Fitzgerald & Fitzgerald, P.C., Yonkers, N.Y. (John M. Daly of counsel), forappellant.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York, N.Y.(Steven C. Mandell of counsel), for respondents.
In an action to recover damages for medical malpractice, the plaintiff appeals from(1) a judgment of the Supreme Court, Kings County (Steinhardt, J.), dated February 8,2013, which, upon an order of the same court dated November 29, 2012, granting thedefendants' motion for summary judgment dismissing the complaint, is in favor of thedefendants and against him dismissing the complaint, and (2), as limited by his brief,from so much of an order of the same court dated April 11, 2013, as, upon reargument,adhered to the original determination.
Ordered that the judgment is reversed, on the law, the defendants' motion forsummary judgment is denied, the complaint is reinstated, and the order dated November29, 2012, is modified accordingly; and it is further,
Ordered that the appeal from the order dated April 11, 2013, is dismissed asacademic in light of our determination on the appeal from the judgment, and the orderdated April 11, 2013, is vacated; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
Noah Gressman (hereinafter the plaintiff) was born on February 3, 2005, and wasdiagnosed several years later with, among other things, pervasive developmentaldisorder. The plaintiff's mother, Nova Torres (hereinafter the mother), commenced thisaction on his behalf against Gail Allison Stephen-Johnson, the physician who deliveredhim, and Central Brooklyn Medical Group, P.C., where the mother received prenatal carefrom Stephen-Johnson, alleging medical malpractice. The mother alleged, among otherthings, that the plaintiff's injuries were proximately caused by Stephen-Johnson's failureto diagnose fetal hypoxia, failure to properly administer pitocin, and failure to deliver theplaintiff by Cesarean section.
The defendants moved for summary judgment dismissing the complaint. By order[*2]dated November 29, 2012, the Supreme Courtgranted the motion. A judgment dated February 8, 2013, was entered upon the order,dismissing the complaint. Thereafter, the plaintiff moved for leave to reargue and renew.By order dated April 11, 2013, the Supreme Court granted reargument but, uponreargument, adhered to its original determination.
A defendant physician moving for summary judgment in an action alleging medicalmalpractice "must make a prima facie showing that there was no departure from goodand accepted medical practice or that the plaintiff was not injured thereby" (Stukas v Streiter, 83 AD3d18, 24 [2011]; see Poter vAdams, 104 AD3d 925, 926 [2013]; Gillespie v New York Hosp. Queens, 96 AD3d 901, 902[2012]; Williams v BayleySeton Hosp., 112 AD3d 917, 918 [2013]). Once a defendant has made such ashowing, the burden shifts to the plaintiff to demonstrate the existence of a triable issueof fact, but only as to the elements on which the defendant met the prima facie burden(see Shehebar v Boro ParkObstetrics & Gynecology, P.C., 106 AD3d 715, 715-716 [2013];Gillespie v New York Hosp. Queens, 96 AD3d at 902; Stukas v Streiter,83 AD3d at 23-25).
Here, the defendants demonstrated their prima facie entitlement to judgment as amatter of law by showing that they did not depart from good and accepted medicalpractice in their treatment, and therefore that their treatment was not a proximate cause ofthe plaintiff's injuries (seeMcKenzie v Clarke, 77 AD3d 637, 638 [2010]; Sheenan-Conrades v WinifredMasterson Burke Rehabilitation Hosp., 51 AD3d 769, 769 [2008]). However, inopposition, the plaintiff's expert affidavits raised triable issues of fact as to whether theplaintiff's persistent tachycardia was an indicator of hypoxia, and if so, whether thefailure to deliver the plaintiff by Cesarean section and to administer pitocin constituteddepartures from accepted medical practice which caused hypoxic/ischemic brain injury.Although the defendants' expert, Ariel Fleischer, stated that the plaintiff's arterial bloodgas levels taken at stated intervals in the hours after his birth, while he was undertreatment in the intensive care unit, contraindicated fetal hypoxia, the plaintiff's expert,Bruce L. Halbridge, concluded that his paleness at birth and shortly thereafter, and theacid levels of his blood, were signs of fetal hypoxia. Further, the plaintiff submittedanother expert's affidavit stating that the plaintiff's specific symptoms were "consistentwith brain damage from hypoxia/ischemia." Contrary to the defendants' contention, theaffidavits of the plaintiff's experts were not conclusory or speculative, but were basedupon specific facts in the record (see Fritz v Burman, 107 AD3d 936 [2013]; Makinen v Torelli, 106 AD3d782, 784 [2013]; cf.Graziano v Cooling, 79 AD3d 803, 805 [2010]; Rebozo v Wilen, 41 AD3d457 [2007]). The conflicting medical opinions present triable issues of fact (see Darwick v Paternoster, 56AD3d 714 [2008]).
The defendants' remaining contentions are without merit. Balkin, J.P., Leventhal,Hinds-Radix and LaSalle, JJ., concur.