| Guctas v Pessolano |
| 2015 NY Slip Op 07242 [132 AD3d 632] |
| October 7, 2015 |
| Appellate Division, Second Department |
[*1]
| Melisa Elif Guctas et al., Appellants, v JoannaC. Pessolano et al., Respondents, et al., Defendant. |
Law Office of Thomas R. Villecco, P.C., Jericho, N.Y., for appellants.
Dwyer & Taglia, New York, N.Y. (Peter R. Taglia of counsel), for respondentsJoanna C. Pessolano and Jane M. Ponterio.
Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, New York, N.Y.(Samantha E. Quinn of counsel), for respondent Christine Sticco.
In an action to recover damages for medical malpractice and lack of informedconsent, etc., the plaintiffs appeal from an order of the Supreme Court, RichmondCounty (Maltese, J.), dated October 1, 2012, which granted the motion of the defendantChristine Sticco for summary judgment dismissing the complaint insofar as assertedagainst her, and granted the separate motion of the defendants Joanna C. Pessolano andJane M. Ponterio for summary judgment dismissing the complaint insofar as assertedagainst them.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the motion of the defendants Joanna C. Pessolano and Jane M.Ponterio which was for summary judgment dismissing the cause of action allegingmedical malpractice insofar as asserted against them, and substituting therefor aprovision denying that branch of the motion; as so modified, the order is affirmed, withone bill of costs payable to the defendant Christine Sticco by the plaintiffs and one bill ofcosts payable to the plaintiffs by the defendants Joanna C. Pessolano and Jane M.Ponterio.
The plaintiff Esra Guctas (hereinafter the mother) gave birth to the infant plaintiff onJune 7, 2005, by means of a cesarean section at St. Vincent's Catholic Medical Center.The mother was a private patient of the attending obstetricians, the defendants Joanna C.Pessolano and Jane M. Ponterio. The defendant physician Christine Sticco, who was thena second-year resident in obstetrics and gynecology, actively participated in the surgeryunder the supervision of Pessolano and Ponterio. During the operation, the infantplaintiff sustained a one-inch-long laceration on her upper right cheek. The mother, onbehalf of the infant plaintiff, the mother suing derivatively, and the infant plaintiff'sfather, also suing derivatively, commenced this action to recover damages for medicalmalpractice and lack of informed consent. Sticco moved for summary judgmentdismissing the complaint insofar as asserted against her, and Pessolano and Ponteriotogether moved for summary judgment dismissing the complaint insofar as assertedagainst them. The Supreme Court granted both motions.
"In an action sounding in medical malpractice, a defendant moving for summary[*2]judgment must make a prima facie showing eitherthat there was no departure from accepted medical practice, or that any departure was nota proximate cause of the plaintiff's injuries" (Matos v Khan, 119 AD3d 909, 910 [2014]; see Poter v Adams, 104 AD3d925, 926 [2013]; Salvia vSt. Catherine of Sienna Med. Ctr., 84 AD3d 1053, 1053-1054 [2011]; Heller v Weinberg, 77 AD3d622, 622-623 [2010]). Once the defendant has made such a showing, the plaintiff, inopposition, must submit evidentiary facts or materials to rebut the defendant's prima facieshowing, but only as to those elements on which the defendant met the prima facieburden (see Poter v Adams, 104 AD3d at 926; Stukas v Streiter, 83 AD3d18, 23-24 [2011]).
Here, in moving for summary judgment dismissing the medical malpractice cause ofaction insofar as asserted against them, Pessolano and Ponterio met their prima facieburden by submitting the affidavit of their expert, who opined that they did not deviate ordepart from accepted medical practice by directing Sticco to actively participate in thecesarean section on the mother in the manner in which she did (see LeMaire v Kuncham, 102AD3d 659, 660 [2013]; Ahmed v New York City Health & Hosps. Corp., 84 AD3d709, 711 [2011]). In opposition, however, the plaintiffs raised a triable issue of fact.The affirmation of the plaintiffs' expert raised triable issues of fact as to whether thedirection given by Pessolano and Ponterio to Sticco during her participation in thecesarean section departed from good and accepted medical practice and, if so, whethersuch a departure was a proximate cause of the infant plaintiff's injuries (see Schmitt v Medford KidneyCtr., 121 AD3d 1088 [2014]). "Summary judgment is not appropriate in amedical malpractice action where the parties adduce conflicting medical expert opinions"(Feinberg v Feit, 23 AD3d517, 519 [2005]; seeSchmitt v Medford Kidney Ctr., 121 AD3d 1088 [2014]). Conflicting expertopinions raise credibility issues which are to be resolved by the factfinder (see Loaiza v Lam, 107 AD3d951, 953 [2013]; Roca vPerel, 51 AD3d 757, 759 [2008]).
"To establish a cause of action [to recover damages] for malpractice based on lack ofinformed consent, [a] plaintiff must prove (1) that the person providing the professionaltreatment failed to disclose alternatives thereto and failed to inform the patient ofreasonably foreseeable risks associated with the treatment, and the alternatives, that areasonable medical practitioner would have disclosed in the same circumstances, (2) thata reasonably prudent patient in the same position would not have undergone thetreatment if he or she had been fully informed, and (3) that the lack of informed consentis a proximate cause of the injury" (Spano v Bertocci, 299 AD2d 335, 337-338[2002] [internal quotation marks omitted]; see Walker v Saint Vincent Catholic Med. Ctrs., 114 AD3d669, 670 [2014]; Khosrovav Westermann, 109 AD3d 965, 966 [2013]; Magel v John T. Mather Mem. Hosp., 95 AD3d 1081, 1082[2012]).
Here, with respect to that branch of their motion which was for summary judgmentdismissing the cause of action seeking damages for medical malpractice premised on lackof informed consent insofar as asserted against them, Pessolano and Ponterio establishedtheir prima facie entitlement to judgment as a matter of law. The evidence demonstratedthat there were decelerations in the infant plaintiff's fetal heart rate prior to thedetermination to perform the cesarean section, that it was necessary to deliver the infantplaintiff by cesarean section since the infant plaintiff was not tolerating labor, that itwould have presented a danger to the infant plaintiff if the mother were permitted tocontinue in labor, and that the mother repeatedly asked that a cesarean section beperformed due to the pain that she was experiencing, the last request being madeapproximately 15 minutes before the surgery was performed. Consequently, the evidenceshowed that a reasonably prudent person in the mother's position would not havedeclined to undergo the cesarean section (see Public Health Law§ 2805-d [3]; Zapata v Buitriago, 107 AD3d 977, 980 [2013]; Johnson v Staten Is. Med.Group, 82 AD3d 708, 709 [2011]). In opposition, the plaintiffs failed to raise atriable issue of fact (see Zapata v Buitriago, 107 AD3d at 980).
Moreover, the Supreme Court properly granted Sticco's motion for summaryjudgment dismissing the complaint insofar as asserted against her. "When supervisedmedical personnel are not exercising their independent medical judgment, they cannot beheld liable for medical malpractice unless the directions from the supervising superior ordoctor so greatly deviate[ ] from normal medical practice that they should be held liablefor failing to intervene" (Zhuzhingo v Milligan, 121 AD3d 1103, 1106 [2014]; see Bellafiore v Ricotta, 83AD3d 632, 633 [2011]; Costello v Kirmani, 54 AD3d 656, 657 [2008]; Muniz v Katlowitz, 49 AD3d511, 513 [2008]).
Sticco met her prima facie burden of establishing her entitlement to judgment as a[*3]matter of law by submitting transcripts of the parties'deposition testimony, demonstrating that she actively participated in the cesarean sectionon the mother under the direct supervision of Pessolano and Ponterio, and that Pessolanoand Ponterio did not so greatly deviate from normal practice that she should be liable forfailing to intervene (see Bellafiore v Ricotta, 83 AD3d at 633). In opposition, theplaintiffs failed to raise a triable issue of fact. Although Sticco actively participated in thecesarean section, the evidence demonstrated that she did so at the direction of Ponterioand Pessolano, and did not exercise independent medical judgment (see Muniz vKatlowitz, 49 AD3d at 514; Soto v Andaz, 8 AD3d 470, 471 [2004]). Moreover, theplaintiffs failed to raise a triable issue of fact as to whether the direction provided byPonterio and Pessolano during the surgery so greatly deviated from normal practice thatSticco should have intervened (see Muniz v Katlowitz, 49 AD3d at 514; Sotov Andaz, 8 AD3d at 472; see also Yakubov v Jamil, 121 AD3d 884 [2014]).
The plaintiffs' remaining contentions either are improperly raised for the first time onappeal or need not be reached in light of our determination. Rivera, J.P., Austin, Romanand Barros, JJ., concur. [Prior Case History: 2012 NY Slip Op 32549(U).]