Frye v. Montefiore Medical Center

70 A.D.3d 15, 888 N.Y.S.2d 479
CourtAppellate Division of the Supreme Court of the State of New York
DecidedNovember 5, 2009
StatusPublished
Cited by76 cases

This text of 70 A.D.3d 15 (Frye v. Montefiore Medical Center) 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
Frye v. Montefiore Medical Center, 70 A.D.3d 15, 888 N.Y.S.2d 479 (N.Y. Ct. App. 2009).

Opinion

OPINION OF THE COURT

Sweeny, J.

This is a medical malpractice action where the Montefiore Medical Center defendants (WHAECOM) and Drs. Berger, Girz and Jarosz have perfected appeals from the denial of their respective motions for summary judgment dismissing the complaints against them. The facts are as follows:

On October 28, 1999, plaintiff presented at the New York Medical Group (NYMG) and was treated by defendant Dr. Franlina Umali, an internist employed by NYMG. Dr. Umali diagnosed plaintiff with diabetes and prescribed Glucophage, an oral diabetes medicine that helps control blood sugar levels.

Approximately one month later, after presenting at Bronx Lebanon Hospital for vaginal bleeding, plaintiff learned she was pregnant. She returned to NYMG on December 2, 1999 and was [17]*17seen by defendant Dr. Park, an obstetrician, who ordered a level 1 sonogram to determine whether the pregnancy was viable.1 This sonogram was supervised and evaluated by defendant Berger, a radiologist, who reported a normal seven-week-and-five-day pregnancy.

On December 3, Dr. Park ordered plaintiff’s admission to WHAECOM due to complications with her pregnancy. At his deposition, Dr. Park stated that NYMG and WHAECOM “co-manage” high-risk diabetic pregnancies such as plaintiffs, and that the purpose of plaintiffs admission to WHAECOM was to place her on insulin and have her “hooked up into the system” that NYMG has with WHAECOM’s high-risk perinatologists.

Upon her admission to WHAECOM, plaintiff was examined by an obstetrics resident who reported that the admission was for evaluation of “diabetes in pregnancy.” The resident recommended that plaintiff be taken off Glucophage and switched to insulin to better control her blood sugar levels. The resident’s report also noted that plaintiffs blood sugar levels were elevated and that the case would be discussed with the director of WHAECOM’s obstetrics and perinatology department. There is no indication in the record that this discussion ever took place.

Blood glucose testing was ordered and two units of insulin were administered to stabilize plaintiff’s blood sugar levels. This was the only insulin administered during plaintiffs stay at WHAECOM. She was not seen by any of WHAECOM’s perinatologists.

On December 4, plaintiff was examined by defendant Long, an attending obstetrician at WHAECOM, who did not order additional insulin, even though she noted high levels of blood sugar. At her deposition, Dr. Long stated that the result of the blood glucose test was 8.8, a reading that showed plaintiffs diabetes was not under control when she entered WHAECOM. Dr. Long did not obtain these test results until after plaintiff was discharged from WHAECOM. Dr. Long also stated that uncontrolled diabetes during pregnancy could result in the development of neural tube defects such as encephaloceles, as well as macrosomic fetus development (i.e., the fetus being large for its fetal age).

Plaintiff was discharged from WHAECOM on December 5 after being seen by defendant Jarosz, another attending obstetri[18]*18cian. Dr. Jarosz did not have plaintiffs blood glucose test results prior to discharging her.

Thereafter, plaintiffs pregnancy was monitored by NYMG’s doctors, who informed her that the results of WHAECOM’s blood glucose test had measured 8.8, indicating that plaintiffs blood glucose levels were not under control for the three-month period prior to the test.

On March 2, 2000, Dr. Park ordered another sonogram. At his deposition, Dr. Park stated that he considered this to be a level 22 sonogram. However, according to Dr. Park, someone unknown to him wrote “pregnancy dates” on the order for the sonogram. On March 16, Dr. Berger supervised a level 1 sonogram, and reported that the fetus’ anatomy was “unremarkable.” Dr. Berger contends that he did not get an order to perform a level 2 sonogram, and that the order requesting a sonogram for “pregnancy dates” was, by its terms, a level 1 sonogram. In any event, according to Dr. Berger and various other defendants at their respective depositions, NYMG did not have the ability to conduct level 2 sonograms in house. They testified that a patient requiring such a sonogram would have to be referred out to another facility for that purpose. Dr. Jarosz stated at her deposition that while she was employed at NYMG during the period 1999-2000, if a fetus was greater than 17 weeks and a NYMG obstetrician ordered a sonogram, it would automatically be a level 2 sonogram. She did not state, however, whether that sonogram would be conducted in house or at another facility.

On May 30, 2000, defendant Harris, an obstetrician with NYMG, diagnosed plaintiff with a diabetic condition wherein glucose is excreted through the kidneys. Dr. Harris referred plaintiff to WHAECOM’s outpatient Diabetes in Pregnancy Program (DIPP), and ordered a level 2 sonogram to be performed when plaintiff entered DIPP

On June 20, plaintiff was seen at DIPP by defendant Girz, an obstetrician/perinatologist employed by WHAECOM. Although Dr. Harris had ordered a level 2 sonogram, Dr. Girz performed a level 1 sonogram. Dr. Girz reported no fetal abnormalities and recommended an additional sonogram on June 27, which, for some reason, was never performed. During her deposition, Dr. Girz stated that a level 2 or fetal anatomy survey should be performed at approximately 20 weeks. If performed later, the [19]*19ability to visualize abnormalities could be affected by the position of the fetus, as well as its weight and size. Plaintiff was approximately 37 weeks into her pregnancy on June 20.

Dr. Girz agreed that children of diabetic mothers have an increased risk of developing neural tube defects like encephaloceles. She further testified that prior to June 2000, she diagnosed approximately 10 neural tube defects, five of which were encephaloceles. With respect to those cases, Dr. Girz stated they were all diagnosed between 13 and 24 weeks and that the level of the sonogram was not an issue in those cases, since “[y]ou put the transducer on and you see it. It’s not that you are particularly doing a level two or Level one ultrasound.”

On June 28, with defendant Suarez the attending obstetrician on duty, plaintiff gave birth vaginally to Sherkell, who was quickly diagnosed with occipital encephalocele. This is a sac-like protrusion of the brain and the membranes that cover it through an opening in the back of the skull, and is caused by the neural tube’s failure to close completely during fetal development. Dr. Harris testified at her deposition that Sherkell’s encephalocele was caused by plaintiffs uncontrolled diabetes. The birth report also indicates that Sherkell had shoulder dystocia and that the encephalocele was ruptured during birth, causing a loss of spinal fluid. His birth weight was 4,734 grams.

During his deposition, Dr. Suarez stated that diabetics tend to have macrosomic babies. When presented with a macrosomic baby, a cesarean section must be considered as an option for delivery. Dr. Suarez also testified that he discussed with plaintiff that the baby was “good sized” and that if labor did not progress the way it was supposed to, a cesarean delivery would be performed. Plaintiff, at her deposition, stated a cesarean delivery was never discussed with her by anyone. Dr. Suarez estimated the baby’s weight to be between 4,100 to 4,200 grams, which he . did not consider excessive.

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Bluebook (online)
70 A.D.3d 15, 888 N.Y.S.2d 479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frye-v-montefiore-medical-center-nyappdiv-2009.