De Jesus v. Mishra

93 A.D.3d 135, 939 N.Y.S.2d 403
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 1, 2012
StatusPublished
Cited by7 cases

This text of 93 A.D.3d 135 (De Jesus v. Mishra) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
De Jesus v. Mishra, 93 A.D.3d 135, 939 N.Y.S.2d 403 (N.Y. Ct. App. 2012).

Opinion

OPINION OF THE COURT

Saxe, J.

This appeal concerns the tragic stillbirth of an infant at the Bronx-Lebanon Hospital Center on October 13, 2003, in particular, the parents’ malpractice claim against Dr. Aruna Mishra, the attending physician who delivered the stillborn infant by emergency cesarean section (c-section).

It is undisputed that when the parties arrived at the hospital’s labor and delivery facility that morning, the infant was still alive. There is testimony that they arrived at the hospital emergency room at approximately 9:00 a.m., and that plaintiff mother was at the Labor and Delivery unit changing into a hospital gown at 10:32 a.m. The record contains some inconsistencies as to exactly when indications of fetal distress began; however, these details are not relevant to the issue of Dr. Mishra’s liability, since it is undisputed that she was not called in until 11:07 a.m. Nevertheless, the following timetable is useful to clarify the series of events underlying the lawsuit, with the understanding that there may be some disagreement regarding the exact timing of these events.

10:42 a.m. A fetal heart monitor is attached, and an initial fetal heart rate (FHR) of 140 beats per minute (bpm), a normal rate, is noted.

[137]*13710:47 a.m. Fetal monitor tape shows FHR deteriorating to 60 bpm before rebounding.

10:52 a.m. Fetal monitor tape shows further bradycardic episodes with FHR of 60 bpm.

11:04 am. Nurse has difficulty locating the fetal heart rate, contacts resident Dr. Rachana Gavara, who finds low heart rate, and contacts Dr. Mishra, the attending physician.

11:07 am. Dr. Mishra examines plaintiff for the first time, diagnoses fetal distress, and calls for an immediate c-section; anesthesiologist is contacted. Dr. Mishra begins preparing for surgery.

11:11 a.m. Bedside sonogram apparently detects no fetal heart rate (Chart notation: “Sono no heart rate?”).

11:16 am. Plaintiff on the operating table and receiving anesthesia.

11:19 am. C-section performed by Dr. Mishra.

This lawsuit against the hospital and the hospital staff members involved in plaintiffs care asserts, inter aha, claims of negligence, medical malpractice, and the infliction of emotional distress, based upon those defendants’ alleged failure to timely notice the fetal bradycardia recorded by the fetal monitor from at least 10:47 a.m. onward, and the failure to take timely appropriate steps in response. However, none of these claims are being pressed against Dr. Mishra. To the extent that the case concerns Dr. Mishra, plaintiffs no longer allege that any negligence on her part contributed to the fetus’s death.

It is undisputed that Dr. Mishra was first called in at 11:07 am., at which time she diagnosed fetal distress, directed an emergency c-section, and began preparing to perform the procedure. Plaintiffs failed to show that Dr. Mishra acted improperly in her diagnosis of fetal distress and in her direction of an emergency c-section. Nor is there any allegation or showing that she was negligent by allowing an excessive period of time to elapse after directing the emergency c-section.

Being unable to proceed with a claim that Dr. Mishra contributed to the fetus’s death by failing to timely perform a c-section, plaintiffs advance a theory of liability that is rather extraordinary when pressed against a doctor trying to save the life of a neonate. It is based on the notion that Dr. Mishra should [138]*138not have proceeded with the c-section because in the intervening minutes between her diagnosis of fetal distress and her commencement of the procedure, it appeared that the fetus had died. Consequently, plaintiffs assert, it was an act of medical malpractice for Dr. Mishra to continue with the surgical procedure and all its potential complications and risks. The claimed injury to the plaintiff is not any complication that actually resulted from the emergency c-section, but “the risks and complications inherent in this surgery including scarring, infection and death.” Since there is no indication that plaintiff either died or developed an infection, the only claimed injuries that actually resulted from Dr. Mishra’s alleged negligence are scarring at the incision line and the increased probability that future pregnancies will need to be delivered by c-section.

To establish her entitlement to summary judgment, defendant was required to show, prima facie, that she did not depart from good and accepted medical practice in her treatment of plaintiff mother (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Dr. Mishra made the requisite prima facie showing with the affirmation by her expert, who asserted, within a reasonable degree of medical certainty, that the appropriate procedure for plaintiff, who presented with a fetus in distress, was the performance of an emergency c-section.

The question is whether the affirmation by plaintiffs’ expert successfully raises a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d at 324-325; Rebozo v Wilen, 41 AD3d 457, 458 [2007]). The expert asserted that Dr. Mishra departed from accepted standards of care by failing to call a halt to the properly ordered c-section once the fetal monitor and sonogram failed to detect a fetal heartbeat.

Plaintiffs emphasize that summary judgment is generally denied when the parties’ medical experts disagree (citing Frye v Montefiore Med. Ctr., 70 AD3d 15 [2009]). However, competing experts almost always disagree; the question here is whether the claim of plaintiffs’ expert, that performing a c-section was a departure, is sufficiently supported in the record to raise an issue for the trier of fact. I conclude that the opinion offered by plaintiffs’ board-certified expert lacks sufficient foundation to raise an issue of fact. Indeed, on this record, there is no merit to the claim that it was a departure to fail to halt the c-section in the face of indications that the fetus had died after the procedure was directed.

First, it is important to note that as a general matter, physicians are expected and often required to attempt to resuscitate [139]*139individuals who stop breathing or whose hearts stop beating. Indeed, in a case cited by plaintiffs, this Court recently approved the proposition that malpractice may be committed by emergency responders who arrive after the patient has experienced “cardiac death” and fail to follow the medical protocols for attempting resuscitation (see King v St. Barnabas Hosp., 87 AD3d 238 [2011]). Where infants are delivered without any palpable heartbeat, or without respiration, or both, substantial resuscitation efforts are undertaken and may proceed for extended periods (see e.g. Golub v Good Samaritan Hosp. Med. Ctr., 2010 NY Slip Op 31603[U] [Sup Ct, Suffolk County 2010]; Ferreira v Wyckoff Hgts. Med. Ctr., 24 Misc 3d 91 [App Term, 2d Dept 2009], affd 81 AD3d 587 [2011]). In fact, plaintiffs chart reflects that such efforts were made here, immediately upon delivery of the infant.

Yet, plaintiffs’ expert claims that the apparent absence of a heartbeat should have caused Dr. Mishra to call off the emergency c-section. He fails to acknowledge that this would have precluded any attempt at resuscitation. Moreover, he offers no facts from which it could be inferred that the information available to Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
93 A.D.3d 135, 939 N.Y.S.2d 403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-jesus-v-mishra-nyappdiv-2012.