Cooper v. St. Vincent's Hospital

290 A.D.2d 358, 736 N.Y.S.2d 41, 2002 N.Y. App. Div. LEXIS 525

Opinion

Order, Supreme Court, Bronx County (Howard Silver, J.), entered April 30, 2001, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Although defendants submitted a physician’s affidavit stating that the care and treatment afforded plaintiff and her mother by defendants was in accordance with then accepted standards of medical care, it is undisputed that defendants were aware at the time of plaintiffs delivery that her mother suffered from the papilloma virus lesions in her genital region, and in view of that circumstance and the physician’s affidavit submitted by plaintiff stating that plaintiff contracted the papilloma virus from her mother in the course of her vaginal delivery and that this could have been avoided had plaintiff been delivered by cesarean section, issues of fact are presented as to whether defendants’ decision to permit plaintiff to be vaginally delivered constituted medical malpractice. Accordingly, summary judgment dismissing the complaint was properly denied. Concur — Nardelli, J.P., Tom, Sullivan, Ellerin and Rubin, JJ.