Destiny H. v. Bronx Lebanon Hospital

137 A.D.3d 607, 27 N.Y.S.3d 552

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 22, 2016
• Docket: 567
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Stanley Green, J.), entered April 13, 2005, which denied defendants Richard Deveaux and Monica Simons’s motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Plaintiffs raised triable issues of fact in opposition to defendants’ prima facie showing, via expert opinion, that they did not depart from good and accepted medical practice in allowing plaintiff mother to continue her pregnancy to term and inducing delivery in the 41st week and that there was no causal connection between any alleged departure and the infant plaintiff’s condition. Plaintiffs’ expert in obstetrics and gynecology opined that defendant Deveaux departed from the standard of medical care by failing to have a C-section performed after the mother developed gestational hypertension in the 37th week of her pregnancy, and both defendants departed from the standard of medical care by attempting an induction and failing to perform a C-section on February 13, when Carmen was a week beyond her due date and had high blood pressure, and when fetal tracings were non-reassuring, and that these departures caused the infant to suffer hypoxia in útero. Plaintiffs’ expert opined that an infant’s Apgar scores are not determinative of the absence of injury, that the infant’s medical records showed that within two days after her birth, she displayed seizure activity, and that brain imaging studies revealed early signs of edema, changes consistent with hypoxic-ischemic encephalopathy (HIE) and atrophy, an expected change due to HIE. Plaintiffs also submitted reports by a neuroradiologist, whose findings differed from those of defendants’ expert concerning the imaging studies, and a pediatric expert, who opined that the infant plaintiff suffered an insult to the brain during labor and delivery on February 13. Contrary to defendants’ contention, plaintiffs’ experts’ opinions are supported by the record.

Plaintiffs did not assert a new theory of liability against Deveaux in their opposition papers. Plaintiffs’ expert asserted only that the departures from good and accepted medical practice may have occurred as far back as the mother’s 37th week of pregnancy, when she started showing signs of gestational hypertension, and while she was already under Deveaux’s care. Although the initial bill of particulars stated the dates of Deveaux’s alleged malpractice incorrectly, the supplemental bill made clear that the allegations related to his treatment of the mother before delivery; the expert disclosure also clarified the dates in issue.

Concur—Sweeny, J.P., Renwick, Moskowitz and Gische, JJ.