I.M. v. United States
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Opinion
KENNETH M. KARAS, District Judge:
Danielle Hartmann ("Ms. Hartmann"), individually and as mother and natural guardian of I.M., an infant, and I.M., an infant by her mother and natural guardian, Ms. Hartmann (collectively, "Plaintiffs"), bring this Action against Raja Senguttuvan, M.D. ("Dr. Senguttuvan"), Amanda Hines, N.P. ("Nurse Hines") (collectively, "neonatal Defendants"), Orange Regional Medical Center ("ORMC"), Alice Bast, R.N. ("Nurse Bast"), Kirankumar Kantal Kothari, M.D. ("Dr. Kothari"), North American Partners in Anesthesia, L.L.P. ("NAPA"), and the United States of America ("United States") (collectively, "Defendants"), pursuant to the Federal Tort Claims Act ("FTCA"),
I. Background
A. Factual Background
The following facts are taken from the Parties statements pursuant to Local Civil Rule 56.1, specifically Nurse Hines's 56.1 statement (Def. Hines's Rule 56.1 Statement ("Hines's 56.1") (Dkt. No. 114) ), ORMC and Nurse Bast's 56.1 statement (Defs. ORMC and Bast's Rule 56.1 Statement ("ORMC and Bast's 56.1") (Dkt. No. 122) ), Dr. Senguttuvan's 56.1 statement (Def. Senguttuvan's Rule 56.1 Statement ("Senguttuvan's 56.1") (Dkt. No. 127) ), Plaintiffs' response and counterstatement (Pls.' Resp. and Counterstatement to Defs.' 56.1 Statements ("Pls.' 56.1") (Dkt. No. 137) ), Nurse Hines's counterstatement (Def. Hines's Rule 56.1 Counterstatement ("Hines's 56.1 Counter") (Dkt. No. 145) ), ORMC and Nurse Bast's counterstatement (Defs. ORMC and Bast's Rule 56.1 Counterstatement ("ORMC and Bast's 56.1 Counter") (Dkt. No. 141) ), and the admissible evidence submitted by the Parties, and are recounted in the light most favorable to Plaintiffs, the non-movants. The facts as described below are not in dispute, except to the extent indicated.2
1. Labor and Delivery Care
In June 2014, Ms. Hartmann learned she was pregnant with I.M. by a positive home pregnancy test. The pregnancy was later confirmed by a physician at MCHC. Ms. Hartmann received prenatal care at MCHC with Dr. Singaravelu, Dr. Blair, and Nurse Rubino. She chose MCHC for her prenatal care as this was the closest facility that Medicaid approved. (Pls.' 56.1 ¶ 175.) Ms. Hartmann was 24 years old at the time. (Id. ¶ 6.)
At the end of February 2015, Ms. Hartmann presented to Bon Secours Hospital for a routine sonogram. Ms. Hartmann testified that Nurse Rubino told her the baby was large and Dr. Blair would have to schedule an induction at ORMC. (Id. ¶ 176.) At that time, Ms. Hartmann was told to go home and wait for a call for the induction date. Her birthing plan was to deliver at ORMC, with the assigned physician employed at MCHC on the day of her delivery. Ms. Hartmann knew that MCHC patients delivered at ORMC. (Id. )
*171Ms. Hartmann's estimated due date was March 1, 2015. (Pls.' 56.1 ¶ 7.) On March 5, 2015, at approximately 11:00 p.m., Ms. Hartmann's water broke while she was in her home. Her contractions were about five minutes apart. She immediately called ORMC to inform them of her expected arrival. (Id. ¶ 177.) She called her mother, who drove her to ORMC. They arrived at ORMC around 12:00 a.m. on March 6, 2015. They waited in the Emergency Room for approximately fifteen minutes before being taken upstairs to a room in Labor and Delivery. (Id. )
A nurse was present in the room when Ms. Hartmann arrived and took her vital signs. Ms. Hartmann testified that during the time period from 12:00 a.m. to 2:00 a.m., a nurse placed an intravenous line ("IV") in her arm, connected her to a fetal heart monitor, and did not palpate her stomach or physically touch her for an examination. (Id. ¶ 178.) A female physician came to her room for the first time around 2:00 a.m. and did a vaginal examination. (Id. ) Ms. Hartmann was 2.3 cm dilated and was told she would receive Pitocin if the labor was not progressing. (Id. ) The examination took approximately five minutes and a vaginal delivery was still anticipated as there were no complications and Ms. Hartmann had had a prior vaginal delivery with her son. (Id. )
Between 2:00 a.m. and 6:30 a.m., Ms. Hartmann periodically walked around and rested in bed. (Id. ¶ 179.) Around 6:30 a.m., Ms. Hartmann asked for an epidural as her contractions were worsening. (Id. ) When she received the epidural, the baby's heart rate decreased. Ms. Hartmann was given oxygen and positioned onto her left side. (Id. ) The fetal heart rate returned to normal after ten minutes. (Id. ) An injection of Pitocin was ordered by Dr. Jouve and administered approximately thirty minutes after the epidural to augment labor. (Id. ) Nurse Bast was the labor and delivery nurse assigned to Ms. Hartmann's delivery. (Id. ¶ 309.) Nurse Bast was as employee of ORMC. (Decl. of Jayne L. Brayer, Esq. ("Brayer Decl.") Ex. I., at 9-10 (Nurse Bast's Deposition Transcript ("Bast Dep.") (Dkt. No. 120) ).)
The Labor and Delivery Admission History and Physical Note at 2:32 a.m. reflects that Ms. Hartmann was having contractions every five minutes and her cervix was 2cm dilated, 60% effaced, and the fetus was at -3 station. (Pls.' 56.1 ¶ 8.) The plan was for expectant management, labs, an epidural when needed, with a vaginal delivery expected. (Id. ¶ 9.)
Dr. DiCostanzo is an obstetrician-gynecologist ("OBGYN"). (Brayer Decl. Ex. H., at 11-12 (Dr. DiCostanzo's Deposition Transcripts ("DiCostanzo Dep.") ).) In March 2015 she was employed by MCHC and had privileges at ORMC. (DiCostanzo Dep. 15.) Dr. DiCostanzo testified that there was always an OBGYN from MCHC on call for ORMC, (id. at 22), and that whenever an MCHC patient was at ORMC, someone from ORMC would contact MCHC staff to let them know, (id. at 23). Dr. DiCostanzo worked a shift at ORMC from 8:00 a.m. on March 6, 2015, to 8:00 a.m. on March 7, 2015. (Id. at 21.) A site manager at MCHC set Dr. DiCostanzo's schedule. (Id. at 21-22.) When Dr. DiCostanzo managed labor and deliveries at ORMC, she managed those cases with hospital staff and nurses from ORMC. (Id. at 25.)
Dr. DiCostanzo testified that she first examined Ms. Hartmann at 9:26 a.m. on March 6, 2015. (Id. at 181.) When Dr. DiCostanzo examined her, there was a gush of meconium3 stained fluid and, with that gush, Dr. DiCostanzo felt the cord come down. (Id. at 182-84.) After Dr.
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KENNETH M. KARAS, District Judge:
Danielle Hartmann ("Ms. Hartmann"), individually and as mother and natural guardian of I.M., an infant, and I.M., an infant by her mother and natural guardian, Ms. Hartmann (collectively, "Plaintiffs"), bring this Action against Raja Senguttuvan, M.D. ("Dr. Senguttuvan"), Amanda Hines, N.P. ("Nurse Hines") (collectively, "neonatal Defendants"), Orange Regional Medical Center ("ORMC"), Alice Bast, R.N. ("Nurse Bast"), Kirankumar Kantal Kothari, M.D. ("Dr. Kothari"), North American Partners in Anesthesia, L.L.P. ("NAPA"), and the United States of America ("United States") (collectively, "Defendants"), pursuant to the Federal Tort Claims Act ("FTCA"),
I. Background
A. Factual Background
The following facts are taken from the Parties statements pursuant to Local Civil Rule 56.1, specifically Nurse Hines's 56.1 statement (Def. Hines's Rule 56.1 Statement ("Hines's 56.1") (Dkt. No. 114) ), ORMC and Nurse Bast's 56.1 statement (Defs. ORMC and Bast's Rule 56.1 Statement ("ORMC and Bast's 56.1") (Dkt. No. 122) ), Dr. Senguttuvan's 56.1 statement (Def. Senguttuvan's Rule 56.1 Statement ("Senguttuvan's 56.1") (Dkt. No. 127) ), Plaintiffs' response and counterstatement (Pls.' Resp. and Counterstatement to Defs.' 56.1 Statements ("Pls.' 56.1") (Dkt. No. 137) ), Nurse Hines's counterstatement (Def. Hines's Rule 56.1 Counterstatement ("Hines's 56.1 Counter") (Dkt. No. 145) ), ORMC and Nurse Bast's counterstatement (Defs. ORMC and Bast's Rule 56.1 Counterstatement ("ORMC and Bast's 56.1 Counter") (Dkt. No. 141) ), and the admissible evidence submitted by the Parties, and are recounted in the light most favorable to Plaintiffs, the non-movants. The facts as described below are not in dispute, except to the extent indicated.2
1. Labor and Delivery Care
In June 2014, Ms. Hartmann learned she was pregnant with I.M. by a positive home pregnancy test. The pregnancy was later confirmed by a physician at MCHC. Ms. Hartmann received prenatal care at MCHC with Dr. Singaravelu, Dr. Blair, and Nurse Rubino. She chose MCHC for her prenatal care as this was the closest facility that Medicaid approved. (Pls.' 56.1 ¶ 175.) Ms. Hartmann was 24 years old at the time. (Id. ¶ 6.)
At the end of February 2015, Ms. Hartmann presented to Bon Secours Hospital for a routine sonogram. Ms. Hartmann testified that Nurse Rubino told her the baby was large and Dr. Blair would have to schedule an induction at ORMC. (Id. ¶ 176.) At that time, Ms. Hartmann was told to go home and wait for a call for the induction date. Her birthing plan was to deliver at ORMC, with the assigned physician employed at MCHC on the day of her delivery. Ms. Hartmann knew that MCHC patients delivered at ORMC. (Id. )
*171Ms. Hartmann's estimated due date was March 1, 2015. (Pls.' 56.1 ¶ 7.) On March 5, 2015, at approximately 11:00 p.m., Ms. Hartmann's water broke while she was in her home. Her contractions were about five minutes apart. She immediately called ORMC to inform them of her expected arrival. (Id. ¶ 177.) She called her mother, who drove her to ORMC. They arrived at ORMC around 12:00 a.m. on March 6, 2015. They waited in the Emergency Room for approximately fifteen minutes before being taken upstairs to a room in Labor and Delivery. (Id. )
A nurse was present in the room when Ms. Hartmann arrived and took her vital signs. Ms. Hartmann testified that during the time period from 12:00 a.m. to 2:00 a.m., a nurse placed an intravenous line ("IV") in her arm, connected her to a fetal heart monitor, and did not palpate her stomach or physically touch her for an examination. (Id. ¶ 178.) A female physician came to her room for the first time around 2:00 a.m. and did a vaginal examination. (Id. ) Ms. Hartmann was 2.3 cm dilated and was told she would receive Pitocin if the labor was not progressing. (Id. ) The examination took approximately five minutes and a vaginal delivery was still anticipated as there were no complications and Ms. Hartmann had had a prior vaginal delivery with her son. (Id. )
Between 2:00 a.m. and 6:30 a.m., Ms. Hartmann periodically walked around and rested in bed. (Id. ¶ 179.) Around 6:30 a.m., Ms. Hartmann asked for an epidural as her contractions were worsening. (Id. ) When she received the epidural, the baby's heart rate decreased. Ms. Hartmann was given oxygen and positioned onto her left side. (Id. ) The fetal heart rate returned to normal after ten minutes. (Id. ) An injection of Pitocin was ordered by Dr. Jouve and administered approximately thirty minutes after the epidural to augment labor. (Id. ) Nurse Bast was the labor and delivery nurse assigned to Ms. Hartmann's delivery. (Id. ¶ 309.) Nurse Bast was as employee of ORMC. (Decl. of Jayne L. Brayer, Esq. ("Brayer Decl.") Ex. I., at 9-10 (Nurse Bast's Deposition Transcript ("Bast Dep.") (Dkt. No. 120) ).)
The Labor and Delivery Admission History and Physical Note at 2:32 a.m. reflects that Ms. Hartmann was having contractions every five minutes and her cervix was 2cm dilated, 60% effaced, and the fetus was at -3 station. (Pls.' 56.1 ¶ 8.) The plan was for expectant management, labs, an epidural when needed, with a vaginal delivery expected. (Id. ¶ 9.)
Dr. DiCostanzo is an obstetrician-gynecologist ("OBGYN"). (Brayer Decl. Ex. H., at 11-12 (Dr. DiCostanzo's Deposition Transcripts ("DiCostanzo Dep.") ).) In March 2015 she was employed by MCHC and had privileges at ORMC. (DiCostanzo Dep. 15.) Dr. DiCostanzo testified that there was always an OBGYN from MCHC on call for ORMC, (id. at 22), and that whenever an MCHC patient was at ORMC, someone from ORMC would contact MCHC staff to let them know, (id. at 23). Dr. DiCostanzo worked a shift at ORMC from 8:00 a.m. on March 6, 2015, to 8:00 a.m. on March 7, 2015. (Id. at 21.) A site manager at MCHC set Dr. DiCostanzo's schedule. (Id. at 21-22.) When Dr. DiCostanzo managed labor and deliveries at ORMC, she managed those cases with hospital staff and nurses from ORMC. (Id. at 25.)
Dr. DiCostanzo testified that she first examined Ms. Hartmann at 9:26 a.m. on March 6, 2015. (Id. at 181.) When Dr. DiCostanzo examined her, there was a gush of meconium3 stained fluid and, with that gush, Dr. DiCostanzo felt the cord come down. (Id. at 182-84.) After Dr. DiCostanzo *172diagnosed the cord prolapse, Nurse Bast summoned help by yelling "cord prolapse" so that about twelve people rushed into the room. (Id. at 185-86.) They called all the relevant departments to prepare for a stat caesarian section ("c-section"). (Id. at 186-87.) Nurse Bast turned off the Pitocin, increased fluids, repositioned Ms. Hartmann and gave her oxygen. (Aff. of Christopher Rogers, Esq. ("Rogers's Aff.") Ex. D, at 17 (Dkt. No. 111-12) (ORMC records pertaining to Ms. Hartmann ("Hartmann ORMC Rec.") ).)4 Dr. DiCostanzo kept her hand in Ms. Hartmann's vagina and uterus. (Id. at 185.) The cord was still pulsating. (Id. ) Dr. DiCostanzo lifted the cord above the baby's head and, since Ms. Hartmann was eight centimeters dilated, had her push twice to attempt a vaginal delivery. (Id. )
Plaintiffs correctly point out that the ORMC record pertaining to Ms. Hartmann includes a note that Dr. DiCostanzo first examined Ms. Hartmann at 9:24 a.m. and called for the stat c-section at 9:26 a.m., not that she first examined her at 9:26 a.m. (Pls.' 56.1 ¶ 180 (citing Hartmann ORMC Rec. 18).) Ms. Hartmann testified that Dr. DiCostanzo examined her for about five minutes before she felt the cord prolapse and before ordering the emergency c-section. (Rogers's Aff. Ex. F, at 123 (Ms. Hartmann's Deposition Transcript ("Hartmann Dep.") ).).
Ms. Hartmann was taken to the operating room ("OR") at 9:38 a.m. (Pls.' 56.1 ¶ 13.) She was in the OR by 9:41 a.m. (Id. ¶ 14.) The skin incision for the c-section procedure commenced at 9:52 a.m. (Id. ¶ 15.) Plaintiff I.M. was delivered at 9:54 a.m., weighing 9 pounds 7 ounces. (Id. ¶ 16.) Her gestational age was 40 weeks and five days. (Id. ¶ 7.)
Dr. Kothari is an anesthesiologist. On March 6, 2015, he was an employee of NAPA and provided anesthesiologic services at ORMC. (Brayer Decl. Ex. L, at 10-12, 15 (Dr. Kothari's Deposition Transcript ("Kothari Dep.") ).) There are usually multiple anesthesiologists from NAPA on the premises at ORMC. (Kothari Dep. 18.) Dr. Kothari testified that once Ms. Hartmann was brought to the OR, there was a "struggle" to transfer her to the OR table because her bed and the OR table were not aligned, and the bed needed to be moved closer to an outlet because there was no extension cord in the room at the time. (Id. at 72-83.)
Dr. DiCostanzo testified that from the time she diagnosed the cord prolapse to the time they left for the operating room, it was difficult to trace the baby's heart rate. She recalls that at one point the fetal heart rate increased above 80 beats per minute-there was a 10 second segment at 9:37 a.m. that registered at 180 beats per minute and Dr. DiCostanzo could not rule out that it was an artifact. (DiCostanzo Dep. 210-12.) Nurse Bast testified that from 9:25 a.m. onward, it was unknown if the fetal heart rate was bradycardic5 or if the baby was suffering from hypoxia.6 (Pls.' 56.1 ¶ 302.)
*173Nurse Bast testified that the last time she worked on a cord prolapse case, the baby was delivered in 16 minutes. (Id. ¶ 311.) Nurse Bast testified that it was her understanding that with a cord prolapse, the baby should be delivered in less than 30 minutes, "decision to incision," because there is decreased oxygenation to the fetus and the goal is to prevent hypoxemia and acidosis to the baby. (Id. ¶ 310.)
2. Initial Neonatal Care
Nurse Hines is a nurse practitioner. (Pls.' 56.1 ¶ 66.) She has a doctorate degree in Neonatology, a Certificate as a Neonatal Nurse Practitioner and Master's Degree in Nursing and Health Care Administration. (Id. ¶ 68.) The Neonatal Resuscitation Program ("NRP") is an educational program in neonatal resuscitation run by the American Academy of Pediatrics and American Heart Association and is delineated in the Neonatal Resuscitation Textbook. (Id. ¶ 52.) NRP provides guidelines and protocols for neonatal resuscitation when there is perinatal distress. (Id. ¶ 70.) Nurse Hines is a NRP instructor and provider. (Id. ¶ 69.)
Nurse Hines testified that when she covered shifts at ORMC "an attending neonatologist [was] assigned as [her] backup, as a collaborating physician," (Rogers's Aff. Ex. G, at 10 (Nurse Hines's Deposition Transcript ("Hines Dep.") ), and that this person supervised her and worked with her to make decisions about the neonates together, (Hines Dep. 12) ).7
Nurse Hines testified she arrived in the operating room about five minutes before Ms. Hartmann was wheeled in for her emergency c-section. (Id. at 59.) Nurse Hines testified that she confirmed that the operating room equipment was ready for resuscitation. This included ensuring that the radiant warmer was turned on, that the oxygen was turned on, that suction was available, that the meconium aspirator was attached to the endotracheal tube and assembled correctly, and that the pulse oximeter was available. (Id. at 65-66.)8
*174After I.M. was delivered at 9:54 a.m., she was brought to the radiant warmer. (Pls.' 56.1 ¶ 19.) Nurse Hines testified that she received the baby within 10 seconds of life after the umbilical cord was clamped and cut. (Hines Dep. 87.) The infant was pale, flaccid, unresponsive, and not breathing when she was given to Nurse Hines. (Pls.' 56.1 ¶ 21.) Nurse Hines testified she immediately intubated the baby within 20 seconds of life using a meconium aspirator with a 4.0 endotracheal tube. (Hines Dep. 87, 89.)9
Within the first minute of life, the infant's heart rate was less than 50-60 beats per minute. (Hines's 56.1 ¶ 26.)10 A scant *175amount of meconium was suctioned, and the vocal cords were visualized with no meconium seen below the vocal cords. (Pls.' 56.1 ¶ 24.) Nurse Hines then proceeded to dry and stimulate the baby. (Id. ¶ 25.) Chest compressions were started and continued until the infant was re-intubated with a 3.5 endotracheal tube. (Id. ¶ 27.) Nurse Hines observed the baby gasp two to three times at approximately two minutes of life. (Hines's 56.1 ¶ 28 (citing Hines Dep. 96; ORMC Rec. 9).)11 Bilateral breath sounds were heard, and the end tidal carbon dioxide detector posted positive results. (Hines's 56.1 ¶ 29 (citing I.M. ORMC Rec. 9).)12
Chest compressions were stopped after 90 seconds as the heart rate was rechecked and found to be in the 140s. (Hines's 56.1 ¶ 30 (citing I.M. ORMC Rec. 9).) Ventilation through the endotracheal tube continued and the baby's color improved with increasing heart rate and perfusion.13 (Id. ¶ 31 (citing I.M. ORMC Rec. 9).) Apgar scores14 were 1 at 1 minute (1 for heart rate less than 100 beats per minute); 3 at 5 minutes (2 for heart and 1 for color); 6 at 7 minutes (2 for heart rate, 1 for respiration, 1 for tone, and 2 for color); and 8 at 10 minutes (2 for heart rate, 2 for respiration, 2 for color, 1 for tone, and 1 for reflex). (Pls.' 56.1 ¶ 32.) The pH values of the blood specimens taken from the infant's umbilical cord were 7.087 from the umbilical cord artery and 7.239 from the umbilical cord vein. (Id. ¶ 33.)
3. Care Provided in the NICU
I.M. was transferred to the Neonatal Intensive Care Unit ("NICU") for management at 10:15 a.m. or 10:16 a.m. (Pls.' 56.1 ¶ 34.) I.M. was transferred to the NICU with 100% FiO215 via endotracheal tube and Neo-T resuscitator with pressures of *17620/5 and she showed good chest expansion. (Id. ¶ 35.) The baby's first vital signs were recorded by the nurses in the NICU at 10:16 a.m. (Id. ¶ 36.) Her blood pressure was 98/44 mmHg, her heart rate was 163 beats per minute, her temperature was 98 degrees Fahrenheit, and her blood oxygen saturation was 100%. (Id. ¶ 37.) A specimen of venous blood was collected at 10:15 a.m. from the infant's right arm for blood gas analysis and the results were available at 10:22 a.m. (Hines's 56.1 ¶ 38 (citing Hines Dep. 122; I.M. ORMC Rec. 33-34).)16 The results from this analysis revealed a pH of 6.951, pCo2 (partial pressure of carbon dioxide) of 60.7, p02 (partial pressure of oxygen) of 88.8, and a base excess of -19.9. (Pls.' 56.1 ¶ 39.)
Portable chest and abdominal x-rays were ordered by Nurse Hines at 10:22 a.m. and were performed between 10:30 a.m. and 10:39 a.m. The results were available at 11:19 a.m. and showed that the tip of the endotracheal tube was at the level of the clavicles. (Hines's 56.1 ¶ 40 (citing I.M. ORMC Rec. 61).)17
A 10:50 a.m. note filed by Nurse Adrienne Quinn ("Nurse Quinn") at 11:16 a.m. reflects the baby had intermittent twitching in her lower extremities. (Hines's 56.1 ¶ 41 (citing I.M. ORMC Rec. 13; Hines Dep. 135).) The note reads in relevant part, "infant noted to open eyes but tone remains low & appears to have intermittent twitching in lower extremities." (ORMC Rec. 13.) Nurse Hines testified about the note, "Adrienne's note is at 10:50 a.m., but it wasn't filed until 11:16, so I can't tell from this exactly when that occurred." (Hines Dep. 135.) Plaintiffs point out that Nurse Hines also testified that the twitching probably occurred before 10:50 a.m. (Pls.' 56.1 ¶ 41 (citing Hines Dep. 133-34).)
Nurse Hines testified that she does not know when Dr. Senguttuvan was first called. (Hines Dep. 86.)18 Nurse Hines did not call Dr. Senguttuvan about the infant. (Pls.' 56.1 ¶ 82.) Dr. Senguttuvan was not at the hospital when Nurse Hines was called to the operating room. (Id. ¶ 83.) Nurse Hines does not know when Dr. Senguttuvan arrived at the NICU. (Id. ¶ 84.)
Dr. Senguttuvan is a neonatologist. (Pls.' 56.1 ¶ 85.) On March 6, 2015, Dr. Senguttuvan was the backup physician at ORMC assigned to Nurse Hines. (Senguttuvan's 56.1 ¶¶ 24-25 (citing Rogers's Aff. Ex. K, at 29 (Dr. Senguttuvan's Deposition Transcript "Senguttuvan Dep.") ).)19 Dr. *177Senguttuvan is Board Certified in Pediatrics and Neonatology. (Pls.' 56.1 ¶ 86.) In March 2015, Dr. Senguttuvan was an on-call neonatologist at ORMC. (Id. ¶ 87.) Dr. Senguttuvan testified that no neonatologist was present at ORMC on the morning of March 6, 2015 until she arrived. (Senguttuvan Dep. 38.) Dr. Senguttuvan further testified that Nurse Hines was the only neonatology nurse practitioner on the premises at ORMC the morning of I.M.'s delivery. (Id. at 42.) When a neonatologist is called in, one of her responsibilities is to assess the condition of the newborn, to identify any problems and to determine the cause of the problems. (Pls.' 56.1 ¶ 268.) When Dr. Senguttuvan arrived, she had authority to instruct Nurse Hines to do certain things as medically necessary. (Id. ¶ 269.) The nurse practitioners could look to Dr. Senguttuvan for guidance and instruction. (Id. ¶ 270.)
Whenever a baby was transferred from ORMC to a tertiary care center, a backup physician would be called in to assist with the transfer process. (Senguttuvan's 56.1 ¶ 32 (citing Senguttuvan Dep. 36-37).)20 Dr. Senguttuvan testified that her role with the NICU team was to arrange for I.M.'s transfer to Westchester Medical Center ("WMC") for cooling. (Senguttuvan Dep. 52.)
Before Dr. Senguttuvan started working as an on-call neonatologist at ORMC, she had to provide documentation to and complete an interview with ORMC. (Senguttuvan Dep. 21-22.) Dr. Senguttuvan was given an orientation at ORMC in July 2011 when she started working there. (Id. at 25.) At ORMC, Dr. Senguttuvan wore a security badge with her name and picture that said "Orange Regional Medical Center" on it. (Id. at 61.)21
On the morning of March 6, 2015, Nurse Quinn called Dr. Senguttuvan and said that Nurse Hines had an intubated baby and needed Dr. Senguttuvan to come to the hospital. (Pls.' 56.1 ¶¶ 91-93.) Dr. Senguttuvan testified that she does not recall when exactly she received this call. (Senguttuvan Dep. 32-33.)22 Dr. Senguttuvan did not receive any additional information between the telephone call and her arrival at ORMC. (Pls.' 56.1 ¶ 95.) I.M.'s treatment at ORMC had already begun before Dr. Senguttuvan arrived, (id. ¶ 88), and indeed, I.M. was already in the NICU when Dr. Senguttuvan arrived, (Senguttuvan Dep. 115). Dr. Senguttuvan was not *178present at ORMC during I.M.'s resuscitation. (Id. at 156.)
When Dr. Senguttuvan arrived at ORMC, she started to help with the process of transferring I.M. to WMC and completing the electronic process of orders. (Senguttuvan Dep. 52.) Dr. Senguttuvan's first entries into I.M.'s ORMC chart were timed at 10:49 a.m. (Pls.' 56.1 ¶ 102.) Dr. Senguttuvan's first note in the ORMC chart was timed at 10:50 a.m. and stated, "Called for backup. Cord prolapse, 6.9 PH likely HIE." (Id. ¶ 103.) Dr. Senguttuvan testified that she arrived at ORMC sometime before 10:49 a.m. (Id. ¶ 276.)23 Dr. Senguttuvan testified that she evaluated I.M.'s condition, including her hemodynamic stability and pH level. (Id. ¶ 271.) She prepared progress notes because she provided medical care and treatment to the patient. (Id. ¶ 272.)
a. Sodium Bicarbonate and Phenobarbital Orders
At what time and by whom the sodium bicarbonate and phenobarbital were ordered and administered to I.M. is disputed. Nurse Hines and Dr. Senguttuvan were responsible for when the sodium bicarbonate and phenobarbital were given. (Pls.' 56.1 ¶ 221.) Nurse Hines, Dr. Senguttuvan, and the ORMC nurses were responsible for monitoring seizure activity in the baby, and for the placement of the endotracheal tube. (Hines Dep. 141-42.) Nurse Hines testified that she and Dr. Senguttuvan were also responsible for monitoring the ventilator settings, (id. at 140), and for the timely ordering of the phenobarbital, (Pls.' 56.1 ¶ 248).
Dr. Senguttuvan testified that she placed medication orders for I.M. to complete processes that had already been started. (Senguttuvan Dep. 52.) In particular, Dr. Senguttuvan placed orders into ORMC's computer to complete the "medication override" of events that had already happened. (Id. at 54.) A medication can be "overrided" and given before the physical act of placing an electronic order. (Id. at 104.) Cabinet overrides allow the nurses to retrieve medication from the cabinet. (Id. at 107.) After medication is retrieved by a nurse via a cabinet override, a regular order is entered to complete the electronic record. (Id. at 108.)
Dr. Senguttuvan testified that I.M.'s records include a cabinet override for sodium bicarbonate and phenobarbital, that this cabinet override occurred before she arrived at ORMC, and that her order for sodium bicarbonate and phenobarbital for I.M. served only to "complete electronic records." (Id. at 104.)
Two unsuccessful attempts were made to place a peripheral intravenous ("PIV") line by the nursing staff sometime before 10:50 a.m. (Pls.' 56.1 ¶ 42.) In her 56.1 statement, Nurse Hines states that "Dr. Senguttuvan ordered a sodium bicarbonate injection at 10:53 a.m. and it was administered at 11:04 a.m. after a normal saline bolus via UVC line [umbilical vessel catheter line]." (Hines's 56.1 ¶ 44 (citing I.M. ORMC Rec. 9, 13, 46).) Nurse Hines testified that Dr. Senguttuvan ordered the sodium bicarbonate at 10:53 a.m. because Nurse Hines was establishing the vascular access on the baby. (Hines Dep. 126.) Nurse Hines also testified that she was not *179sure when exactly the UVC line was first placed, but that the sodium bicarbonate was first given about 20 minutes after the UVC line was placed. She knew this because a saline bolus had to be administered via a UVC line before sodium bicarbonate could be administered, and a saline bolus takes about 20 minutes to administer. (Id. at 127-28.) I.M.'s chart includes a note that the UVC line was placed at 11:04 a.m., (I.M. ORMC Rec. 13), but Nurse Hines testified that the time of the note is not necessarily reflective of when the actual line was placed. (Hines Dep. 128.) Nurse Hines also testified that Phenobarbital was first administered at 11:58 a.m. (Hines's 56.1 ¶ 47 (citing I.M. ORMC Rec. 12); Hines Dep. 129.)
Dr. Senguttuvan's testimony that sodium bicarbonate and phenobarbital were administered before she arrived, and that she only entered a cabinet override, conflicts with Nurse Hines's testimony that the sodium bicarbonate injection was administered at 11:04 a.m., and that the phenobarbital was first given at 11:58 a.m., both after Dr. Senguttuvan arrived. (Pls.' 56.1 ¶¶ 44, 109.)24
Plaintiffs incorrectly state that both Nurse Hines and Dr. Senguttuvan testified that "the standard of care was to administer sodium bicarbonate to treat acidosis." (Pls.' 56.1 ¶ 54.) In the portion of Nurse Hines's transcript Plaintiffs cite to, she did not testify that the "standard of care" is to administer sodium bicarbonate immediately-she testified that administering sodium bicarbonate is one of the waysacidosis may be treated, and emphasized that it is only appropriate once "you've obtained a blood gas [measure] that clinically indicates that bicarbonate ... should be used." (Hines Dep. 38.) Dr. Senguttuvan also testified that administering sodium bicarbonate is "one of the modalities " of treating acidosis, and that if it is determined that a patient is acidotic, sodium bicarbonate should be administered immediately-she did not testify that administering sodium bicarbonate was the "standard of care." (Senguttuvan Dep. 97 (emphasis added).)25
Plaintiffs argue that "[d]ue to the failure to timely give sodium bicarbonate, the venous pH of 6.951 was worse than the cord pH taken at the time of birth of 7.239," (Pls.' 56.1 ¶ 224 (citing Hines Dep. 125) ), but the portion of Nurse Hines's deposition transcript they cite to does not support their proposition. Nurse Hines testified that the pH change was caused by "acidosis from lactic acid that collects in the body" and that the cause of the lactic acidosis was that the baby was "depressed at birth." (Hines Dep. 125.)
Dr. Senguttuvan and Nurse Hines both testified that they are aware of the NRP guidelines. (See Senguttuvan Dep. 89, 92; Hines Dep. 17-19, 29, 90.) The sixth edition of the Neonatal Resuscitation Textbook was in effect on March 6, 2015, (Pls.' 56.1 ¶ 53), and reads in relevant part:
*180The use of sodium bicarbonate during neonatal resuscitation is controversial. Its use may be helpful to correct metabolic acidosis that results from buildup of lactic acid that may occur while the baby has hypoxemia and poor cardiac output ... sodium bicarbonate can be harmful, particularly if given too early in a resuscitation. Use of sodium bicarbonate may increase the serum pH but can worsen intracellular acidosis. You must be certain the ventilation of the lungs is adequate before administering sodium bicarbonate. When sodium bicarbonate mixes with acid, CO2 is formed. The lungs must be adequately ventilated to remove the CO2. If you decide to give sodium bicarbonate, remember that it is very hypertonic and irritating to blood vessels, and, therefore, must be given into a large vein, from which there is good blood return.
(Hines's 56.1 ¶ 54.) As noted in this quote, Defendants argue that Sodium bicarbonate can be dangerous and its use during neonatal resuscitation is controversial. (Senguttuvan's 56.1 ¶ 81-82.) Indeed, Defendants argue that infusions of sodium bicarbonate are associated with increased mortality rates and increased intracranial hemorrhage in infants. (Id. ¶ 83.)
Regarding phenobarbital, Nurse Hines testified that if she were to observe seizures in a neonate, the standard of care would require her to order phenobarbital, but that she would not order phenobarbital prophylactically in the event that a baby was born depressed but had not yet had seizures because that was a decision the tertiary care center would make under its "cool-cap protocol." (Hines Dep. 44-45.) Nurse Hines also testified that twitching in a baby's lower extremities is "possibly seizure activity," (id. at 134), but also noted that "[i]nfants can present [seizures] in a wide variety of ways that are typical to a newborn as opposed to an adult."26
Dr. Senguttuvan testified that abdominal movement and posturing can indicate that a baby is having a seizure. (Pls.' 56.1 ¶ 236.) Dr. Senguttuvan further testified that when seizures are diagnosed, the standard of care requires administration of phenobarbital to prevent excitation of the neuronal cells that can hurt cell inflammation in the brain. (Id. ¶ 237 (citing Senguttuvan Dep. 101).)27 She further testified that it is not an accepted standard of care to give phenobarbital before the occurrence of seizures. (Senguttuvan Dep. 110.)
b. Additional Testing and Adjustment of the Endotracheal Tube
Dr. Senguttuvan placed an order for an arterial blood gas specimen to be taken via arterial puncture. It was collected at 11:55 a.m. and results were available at 11:57 a.m. The results showed a pH of 7.545, a pC02 of 22.9, a p02 of 291.5, and a base excess of -1.2. (Pls.' 56.1 ¶ 45.)
*181A repeat portable chest x-ray was ordered by Nurse Hines at 11:44 a.m. It was performed between 11:50 a.m. and 12:06 p.m., and the results were available 12:21 p.m. The x-ray revealed that the endotracheal tube had moved, and the tip was now further advanced in the carina.28 The NICU was aware of this and the tube was readjusted. (Id. ¶ 46.) When an endotracheal tube is placed, the tip should be just above the carina, and it should not be above the clavicle. (Id. ¶¶ 249-51.) Nurse Hines testified that the "optimal positioning" for the endotracheal tube"is between the clavicle and the carina," (Hines Dep. 143), and that if the endotracheal tube was seen to be at the level of the clavicles, it would be adjusted immediately, (id. at 144.)29
Dr. Senguttuvan testified that the whole NICU team, of which she was a part, was responsible for monitoring the vent settings and making sure they were appropriate, and for monitoring the endotracheal tube and making sure it is properly placed. (Pls.' 56.1 ¶¶ 259-60.)
Nurse Hines testified that the second x-ray showed that the endotracheal tube was low in position and that there was "atelectasis on the right upper lobe." (Hines Dep. 153-54.)30 Atelectasis of the lungs may indicate that a portion of the lungs may not be expanded, or it could indicate an aspiration. (Id. at 34.) Nurse Hines testified that there was no way to tell what the cause of the atelectasis was, but she noted that I.M. had respiratory distress because she was depressed at birth,31 and that it was possible that the placement of the endotracheal tube caused the atelectasis. (Id. at 155-57.)32
At 12:11 p.m., Dr. Senguttuvan ordered the mechanical ventilation settings changed from 18/5 PIP over PEEP to a lower pressure of 16/5 PIP over PEEP, because I.M.'s pH was 7.54, which indicated she had alkalosis, and Dr. Senguttuvan wanted to correct the alkalosis. (Pls.' 56.1 ¶ 258.)
A third portable chest x-ray was ordered by Nurse Hines at 12:31 p.m., which was performed between 12:35 p.m. and 12:41 p.m., and revealed that the endotracheal tube had been withdrawn and the tip was now just below the level of the clavicles.
*182(Hines's 56.1 ¶ 48 (citing I.M. ORMC Rec. 59).)33
c. Discharge and Providers' Understanding of I.M.'s Condition
At 12:32 p.m., Nurse Hines ordered a left arm venous specimen be collected for repeat blood gas analysis. It was collected at 12:33 p.m. and results were available at 12:36 p.m. The results showed a pH of 7.424, a pCo2 of 33.4, a p02 of 53.8, and a base excess of -2.2. (Pls.' 56.1 ¶ 49.)
The infant was discharged to WMC via helicopter transfer for "cool cap protocol" and "tertiary care management" at 1:20 p.m. (Id. ¶ 50.)
Dr. Senguttuvan testified that from the time she arrived until I.M. was transferred, I.M.'s care was managed by her, Nurse Hines, other nurses and respiratory therapists. (Id. ¶ 273.) Dr. Senguttuvan testified that based on I.M.'s blood gases, she could not say exactly when, whether during delivery or immediately prior to delivery, the baby suffered from impaired oxygen exchange. (Senguttuvan Dep. 78-79.)34
Nurse Hines testified that at the time of I.M.'s discharge, she believed that I.M.'s diagnosis was probably hypoxic ischemic encephalopathy ("HIE")35 because she was a "depressed baby" who had metabolic acidosis. (Hines Dep. 163.)
*183Nurse Bast testified that she learned from the NICU team that the baby was transferred to WMC because she had brain damage, was starting to have seizures, and that they were hoping to institute cool-cap therapy. (Pls.' 56.1 ¶ 331.) Nurse Base testified that she never saw the baby but later learned by looking at the infant's charts that there was oxygen deprivation after the cord prolapse was diagnosed. (Id. ¶ 332.)
Dr. DiCostanzo testified that I.M. suffered a fetal bradycardia with the cord prolapse, (Pls.' 56.1 ¶ 326), and that based on I.M.'s charts it appears that for at least the first 10 minutes of life, I.M. suffered from depression, (id. ¶ 330). The Apgar score of 1 at 1 minute indicated that there was some sort of incident where the baby was depressed from the cord prolapse, as the baby was not getting enough blood supply from the mother to the brain. (Id. ¶ 327.) Dr. DiCostanzo also testified that she later learned as part of the lawsuit that I.M. suffered from HIE. (Id. ¶ 329; DiCostanzo Dep. 254-55.)
4. Expert Reports
The Parties have submitted numerous expert reports. Only the qualifications of Plaintiffs' experts are at issue and therefore the Court will only discuss their qualifications and testimony at length.
a. Dr. Danoff
Plaintiffs served an expert report from Stuart Danoff, M.D. ("Dr. Danoff"), a pediatrician and neonatologist. Dr. Danoff stated that he is board certified in pediatrics and has practiced pediatrics and neonatal medicine for over 50 years. Dr. Danoff stated that he is licensed to practice medicine in New York and Connecticut. He received a bio-chemistry degree from Harvard College and a medical degree from New York University. (Decl. of Jordan K. Merson, Esq. ("Merson Decl.") Ex. 14, at 2, 5 (Dr. Danoff's Affidavit and Expert Report ("Danoff Expert Rep.") (Dkt. No. 136) ).)36 Dr. Danoff completed a fellowship in neonatal medicine at Columbia University Medical School in 1983 and served as the chief of neonatal medicine at Norwalk Hospital in Connecticut from 1983 until 2004. During that time he was an attending neonatologist at Columbia Presbyterian Hospital's NICU. (Danoff Expert Rep. 5.) Dr. Danoff stated that he is an instructor in neonatal resuscitation, a program developed by the American Academy of Pediatrics and the American Academy of Anesthesiology and Obstetrics and Gynecology. Dr. Danoff also stated that he was hired as a consultant to the department of health of the State of Connecticut in 2010. (Danoff Expert Rep. 6.)37 Over *184the course of his career, he has managed "thousands of neonatal cases, including hundreds of cases of neonatal hypoxia, metabolic and respiratory acidosis." (Id. ) *185Dr. Danoff retired as an active practitioner in 2004. (Pls.' 56.1 ¶ 55.)38 Dr. Danoff sometimes still makes rounds at the NICU at Columbia Presbyterian Hospital as a visiting neonatologist. At the time of his deposition on February 21, 2018, the last time that he did so was in the fall of 2017 before Thanksgiving. (Id. ¶ 56.) Dr. Danoff has not taken any Continuing Medical Education courses in the last 15 years. (Id. ¶¶ 57, 120.) Dr. Danoff does not subscribe to any medical journals and the last time he did so was over five years ago. (Id. ¶¶ 58, 122, 123.) Dr. Danoff receives a publication entitled "Pediatrics" as he is a member of the American Academy of Pediatrics, but he does not remember the last time that he received a copy. (Id. ¶¶ 59, 124.) He occasionally reads it. (Id. ¶ 60.) Dr. Danoff relies on the Neonatal Resuscitation textbook, "which is an authoritative textbook as far as [he is] concerned." (Hines's 56.1 ¶ 62 (citing Rogers's Aff. Ex. H, at 135-36 (Dr. Danoff's Deposition Transcript ("Danoff Dep.") ) ).)39 Dr. Danoff testified that he did not have "the slightest idea what the latest edition" of the Neonatal Resuscitation textbook is. (Pls.' 56.1 ¶ 63.) Dr. Danoff was never board certified in neonatal-perinatal medicine. (Id. ¶ 64.) Dr. Danoff keeps current only by making rounds at Columbia Presbyterian Hospital, and also by talking to students, fellows, residents and other neonatologists. (Id. ¶¶ 128-29.) He has testified once as an expert witness in the last 5 years. (Id. ¶ 61.)
Dr. Danoff has not authored any publications in the fields of pediatrics or neonatology since 1995, (id. ¶¶ 65, 127), nor has he authored any publication regarding neonatal care in the face of an umbilical cord prolapse, (id. ¶ 126). Dr. Danoff had never before heard or read that it is dangerous to give a neonate sodium bicarbonate without first administering saline because of the deleterious effects that it has on the infant's brain and heart and that it can cause cerebral hemorrhage. (Id. ¶ 143.)40 Dr. Danoff is unfamiliar with research which formed the basis for a 10-year old article titled "Sodium bicarbonate, basically useless therapy." (Id. ¶ 144.)41
*186Doctor Danoff reviewed the ORMC medical records pertaining to Ms. Hartmann and to I.M., Plaintiffs' medical records from WMC, Good Shephard Rehabilitation Hospital (GSRH), MCHC, Luger Scranton Rehabilitation Center, Ms. Hartmann's interrogatory responses and deposition transcript, the deposition transcripts of Nurse Hines, Dr. Senguttuvan, and the expert reports of Dr. Hamar and Dr. Steele. (Danoff Expert Rep. 2.) However, Dr. Danoff did not review I.M.'s x-ray films. (Pls.' 56.1 ¶ 169.) The opinions in his expert report are based on his "training, experience, and education," and his review of these materials. (Danoff Expert Rep. 2.)
Dr. Danoff concluded that the main deviations from the standard of care were the untimely administration of sodium bicarbonate in the face of severe acidosis, untimely administration of phenobarbital for convulsions, and improper administration of ventilatory care. (Pls.' 56.1 ¶ 136.) First, Dr. Danoff opined that I.M.'s low cord pH and that she was floppy and bradycardic and cyanotic at birth, indicated that she had severe acidosis and that sodium bicarbonate would be needed to treat her. (Dr. Danoff Ex. Rep. 7.) He opined that "it was incumbent upon the neonatal staff to immediately and without delay suction the meconium from the trachea and provide adequate ventilation and respiratory and vascular support to maintain proper oxygenation and cardiovascular circulation" and to immediately administer sodium bicarbonate. (Id. ) Dr. Danoff points out that I.M. was born at 9:54 a.m., the sodium bicarbonate was not ordered until an hour later at 10:53 a.m., and not administered until 11:04 a.m. He opined that such a delay was a deviation from the standard of care. (Id. at 8.) Second, Dr. Danoff opined that the endotracheal tube was not properly placed as evidenced by the x-ray which revealed it was too high in the trachea and that this caused I.M. to experience further hypoxia. He pointed to I.M.'s lower pH an hour after intubation as evidence that she was not properly intubated. (Id. ) Third, Dr. Danoff opined that the twitching I.M. exhibited at 10:50 a.m. was seizure activity and that phenobarbital should have been administered immediately. Instead, phenobarbital was not given until 11:58 a.m., an hour after the twitching began. (Id. at 9.) Dr. Danoff concludes that these deviations were the direct cause of persistent acidosis and significant hypoxic brain damage, and HIE resulting in permanent and irreversible neurological abnormalities. (Pls.' 56.1 ¶ 190.)
Dr. Danoff also opined that I.M. was "dead" at the moment of birth, (Danoff Dep. 76, 84, 122), and that there was no doubt that I.M. suffered irreversible brain damage before she was delivered, (Pls.' 56.1 ¶¶ 161-62). Dr. Danoff had no criticism of the size of the endotracheal tube used, stating that a 3.5 endotracheal tube is adequate, and a 4.0 endotracheal tube is "great." (Pls.' 56.1 ¶¶ 170-72.) Based on the Apgar score readings in I.M.'s chart, Dr. Danoff testified that "I don't think the baby breathed for the first, I mean really breathed, for seven minutes." (Danoff Dep. 167-68).
b. Dr. Hamar
Plaintiffs also served an expert report from Benjamin Hamar, M.D. ("Dr. Hamar"). (Pls.' 56.1 ¶¶ 188, 280-85.) Dr. Hamar is a board-certified obstetrician and gynecologist. He currently practices at Beth Israel-Deaconess Medical Center ("BIDMC"), where he is the Director for the Center for Maternal-Fetal Health, Beverly Hospital, and Mount Auburn Hospital, and is an Assistant Professor at Harvard Medical School. (Brayer Decl. Ex. N., at 2-3 ("Hamar Expert Rep.").)
In his report, Dr. Hamar opined that Ms. Hartmann's cord prolapse was negligently managed by her providers. Dr. Hamar opined that Dr. DiCostanzo deviated *187from the standard of care by removing her hand from Ms. Hartmann's vagina too early so that she was no longer elevating the baby's head, and that this led the cord to drop below the baby's head, further depriving her of oxygen. (Id. at 4-5.) Specifically, Dr. Hamar also opined that having Ms. Hartmann push before she was fully dilated was dangerous and a "clear violation in the standard of care and led to delays in the delivery with resulting worsening of the hypoxia and acidosis." (Id. at 5.) Dr. Hartman also opined that Ms. Hartmann's providers failed to properly monitor the fetus, for example by not checking her heart rate, from the time that the prolapse was identified to the time of delivery. (Id. )
Dr. Hamar also opined that Ms. Hartmann's providers failed to timely deliver the infant. He stated that a cord prolapse is a true obstetric emergency and the infant must be delivered as fast as possible. Although he acknowledged the recommendation by the American College of Obstetricians and Gynecologists ("ACOG") that the decision to incision time should be 30 minutes or less for emergency cesarean deliveries, he opined that ACOG has backed away from the "30-minute rule" in its more recent publications. Dr. Hamar opined that in this case involving a cord prolapse, the decision to incision time should have been less than 10 minutes. (Pls.' 56.1 ¶ 189.) Dr. Hamar points out that it took fourteen minutes from diagnosis to get Ms. Hartmann to the operating room, and another ten minutes for anesthesia to be administered. (Hamar Expert Rep. 7-8.)
Dr. Hamar also describes I.M.'s subsequent medical history in his report. He states that the diagnoses in the WMC chart included perinatal depression and the pediatric endocrinology consult note documents "birth asphyxia [secondary] to prolapse cord." (Pls.' 56.1 ¶¶ 334 (citing Hamar Expert Rep. 9).)42 He states that further testing on March 9 and 12, 2015 confirmed continued seizure activity and I.M. was subsequently admitted to GSRH
*188from August 10, 2015 to October 29, 2015 with the diagnoses of non-traumatic brain injury, global developmental delays, and spasticity. The stated reason for admissions was that I.M. was born "via STAT C-section for a prolapsed cord resulting in hypoxic ischemic encephalopathy and required head cooling." Dr. Hamar states that I.M. has subsequently been diagnosed with global developmental delays, cerebral palsy, muscle weakness, feeding difficulties, and dysphagia and continues to have a gastronomy tube. (Id. ¶¶ 335-38 (citing Hamar Expert Rep. 9).)
B. Procedural History
Plaintiffs filed the Complaint on September 30, 2016. (Compl. (Dkt. No. 1).) Dr. Kothari filed an Answer on November 15, 2016. (Kothari Answer (Dkt. No. 30).) ORMC filed an Answer on November 16, 2016. (ORMC Answer (Dkt. No. 36).) Nurse Bast filed an Answer on November 16, 2016. (Bast Answer (Dkt. No. 38).) Nurse Hines filed an Answer on November 18, 2016. (Hines Answer (Dkt. No. 51).) Dr. Senguttuvan filed an Answer on December 2, 2016. (Senguttuvan Answer (Dkt. No. 59).) The United States filed an Answer on January 13, 2017. (United States Answer (Dkt. No. 71).)
On January 18, 2017, the Parties agreed by stipulation to dismiss certain individual Defendants and claims from this Action without prejudice because those individuals were employees of the United States and the exclusive remedy for their alleged negligent acts is an FTCA suit against the United States. (Stipulation (Dkt. No. 72).)
On May 4, 2017, the Court held an initial pre-trial conference, (see Dkt. (minute entry for May 4, 2017) ), and issued a Case Management and Scheduling Order, (Dkt. No. 80). On May 5, 2017, the case was referred to a Magistrate Judge for general pretrial management. (Dkt. No. 81.) The Court granted the Parties' requests for discovery deadline extensions several times, (see Dkt. Nos. 87, 91), but noted on February 26, 2018, that no more extensions would be granted, (Dkt. No. 95).
On April 13, 2018, counsel for Dr. Senguttuvan submitted a pre-motion letter to the Court requesting permission to file a Motion for Summary Judgment. (See Letter from John L. Leifert, Esq., to Court (Dkt. No. 97).) On April 17, 2018, counsel for Plaintiffs submitted a letter opposing Dr. Senguttuvan's request. (See Letter from Jordan Merson, Esq., to Court (Dkt. No. 98).) On April 26, 2018, counsel for Nurse Hines submitted a pre-motion letter to the Court requesting permission to file a Motion for Summary Judgment. (See Letter from Christopher T. Rogers, Esq., to Court (Dkt. No. 102).) On April 30, 2018, counsel for Plaintiffs submitted a letter opposing Nurse Hines's request. (See Letter from Jordan Merson, Esq., to Court (Dkt. No. 103).) On May 8, 2018, counsel for ORMC and Nurse Bast submitted a pre-motion letter to the Court requesting permission to file a Motion for Summary Judgment. (See Letter from Jayne L. Brayer, Esq., to Court (Dkt. No. 106).) On May 8, 2018, counsel for Plaintiffs submitted a letter opposing ORMC and Nurse Bast's request. (See Letter from Jordan Merson, Esq., to Court (Dkt. No. 107).) On May 17, 2018, the Court held a pre-motion conference, (see Dkt. (minute entry for May 17, 2018) ), and issued a Motion Scheduling Order, (Dkt. No. 108).
On July 20, 2018, Nurse Hines filed her Motion for Summary Judgment, accompanying papers and exhibits, and a Rule 56.1 statement. (Hines's Not. of Mot.; Aff. of Christopher Rogers Aff.; Hines's Mem. of Law. in Supp. of Mot. for Summ. J. ("Hines's Mem.") (Dkt. No. 113); Hines's 56.1.) On July 20, 2018, ORMC and Nurse Bast submitted their Motion for Summary Judgment, and due to a filing error, on *189July 31, 2018, they belatedly filed their accompanying papers and exhibits, and a Rule 56.1 statement. (ORMC and Bast's Not. of Mot.; Brayer Decl.; ORMC and Bast's Mem. of Law. in Supp. of Mot. for Summ. J. ("ORMC and Bast's Mem.") (Dkt. No. 121); ORMC and Bast's 56.1.) On July 31, 2018, Dr. Senguttuvan submitted her Motion for Summary Judgment, accompanying papers and exhibits, and a Rule 56.1 statement. (Senguttuvan's Not. of Mot.; Decl. of John L. Leifert, Esq. ("Leifert Decl.") (Dkt. No. 125); Senguttuvan's Mem. of Law. in Supp. of Mot. for Summ. J. ("Senguttuvan's Mem.") (Dkt. No. 126); Senguttuvan's 56.1.)
On August 20, 2018, Plaintiffs filed their Opposition to the Motion with the accompanying memorandum of law, a response to Defendants' Rule 56.1 statements, and exhibits. (Merson Decl.; Pls.' 56.1; Pls.' Mem. in Oppn. to Mot. for Summ. J. ("Pls.' Mem.") (Dkt. 138).)
On September 7, 2018, counsel for ORMC and Nurse Bast filed a reply and a Rule 56.1 counterstatement. (ORMC and Bast's Reply Mem. of Law in Further Supp. of Mot. for Summ. J. ("ORMC and Bast's Reply") (Dkt. No. 140); ORMC and Bast's 56.1 Counter.) On September 10, 2018, counsel for Nurse Hines filed a reply and a Rule 56.1 counterstatement. (Hines's Reply Mem. of Law in Further Supp. of Mot. for Summ. J. ("Hines's Reply") (Dkt. No. 143); Decl. of Christopher Rogers, Esq. ("Rogers Decl.") (Dkt. No. 144); Hines's 56.1 Counter.) On September 13, 2018, counsel for Senguttuvan filed a reply and a reply declaration with further exhibits. (Senguttuvan's Reply Mem. of Law in Further Supp. of Mot. for Summ. J. ("Senguttuvan's Reply") (Dkt. No. 150); Decl. of John L. Leifert, Esq. ("Leifert Reply Decl.") (Dkt. No. 151).) The Motions were thus fully briefed on September 13, 2018.
On September 18, 2018, in response to allegations about Dr. Danoff's credentials, counsel for Plaintiffs filed a letter attaching Dr. Danoff's license to practice medicine in New York. (See Letter from Jordan Merson, Esq., to Court (Dkt. No. 153).) On December 4, 2018, Plaintiffs belatedly filed transcripts cited in their 56.1 counterstatement. (Dkt. No. 155.)
II. Discussion
A. Standard of Review
Summary judgment is appropriate where the movant shows that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Psihoyos v. John Wiley & Sons, Inc. ,
"However, when the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim," in which case "the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP,
*190motion ..., [a nonmovant] need[s] to create more than a 'metaphysical' possibility that his allegations were correct; [s]he need[s] to 'come forward with specific facts showing that there is a genuine issue for trial,' " Wrobel v. County of Erie,
"On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law." Royal Crown Day Care LLC v. Dep't of Health & Mental Hygiene,
B. Analysis
1. Medical Malpractice
"To establish a claim for medical malpractice under New York law, a plaintiff must prove (1) that the defendant breached the standard of care in the community, and (2) that the breach proximately caused the plaintiff's injuries." Lettman v. United States , No. 12-CV-6696,
a. Neonatal Defendants
The neonatal Defendants' principal argument on summary judgment is that Dr. Danoff, Plaintiffs' proposed neonatology expert, is not qualified to opine as an expert witness and that his expert report is unreliable and should be found inadmissible under Rule 702 of the Federal Rules of Evidence. The neonatal Defendants further argue that Plaintiffs cannot prevail on their medical malpractice claim without an expert opinion. (Hines Mem. 4-19; Senguttuvan Mem. 1-7.)
"Expert testimony is normally required to establish the applicable standard of practice and, in an appropriate case, to determine whether an alleged deviation from that standard was the proximate cause of a plaintiff's injuries." Berk v. St. Vincent's Hosp. & Med. Ctr. ,
*191Sitts v. United States,
At the summary judgment stage, a court can "decide questions regarding the admissibility of evidence, including expert opinion evidence." Bah v. Nordson Corp. , No. 00-CV-9060,
Rule 702 of the Federal Rules of Evidence provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702. Although it is the role of the jury to determine the credibility of an expert witness, it is the role of the trial court to serve as a "gatekeeper" to ensure that the expert testimony is reliable and relevant before it is presented to the jury. See Kumho Tire Co. v. Carmichael,
"[T]he proponent of expert testimony has the burden of establishing by a preponderance of the evidence that the admissibility requirements of Rule 702 are satisfied." United States v. Williams,
*192i. Dr. Danoff's Qualifications
The Court must first address "the threshold question of whether a witness is qualified as an expert by knowledge, skill, experience, training, or education to render his or her opinions." Nimely v. City of New York,
Looking at the totality of Dr. Danoff's background, the Court concludes that he has the educational credentials, experience, and training to testify as a neonatology expert in this case. Dr. Danoff has practiced neonatal medicine for over 50 years, managed thousands of neonatal cases, including hundreds of cases of neonatal hypoxia, metabolic and respiratory acidosis, served as the chief of neonatal medicine at a hospital for two decades, completed a fellowship in neonatal medicine at Columbia University Medical School, and still makes rounds at the NICU at Columbia Presbyterian Hospital to stay current. (Danoff Expert Rep. 2-5; Pls.' 56.1 ¶ 128.) See Bosco v. United States, No. 14-CV-3525,
To be sure, there are some gaps in Dr. Danoff's qualifications. He retired as an active practitioner 14 years ago, does not take any continuing medical education courses and has not done so in 15 years, is not aware of the most recent edition of the Neonatal Resuscitation Textbook, is not aware of the recent research that warns of the dangers of sodium bicarbonate, and has testified as an expert only once in the last five years. (Pls.' 56.1 ¶¶ 55, 57, 61, 120.) The neonatal Defendants cite Foley,
Defendants may cross-examine Dr. Danoff about the gaps in his credentials and argue that the fact finder should not give much or any weight to Dr. Danoff's testimony. But it is not for the Court at this stage to assess Dr. Danoff's credibility or to decide how much weight his testimony should be given. See Jeffreys, 426 F.3d at 551 (holding that "district courts may not weigh evidence or assess the credibility of witnesses at the summary judgment stage").
ii. Reliability of Dr. Danoff's Testimony
"In determining whether an expert's opinion should be excluded as unreliable, 'the district court should undertake a rigorous examination of the facts on which the expert relies, the method by which the expert draws an opinion from those facts, and how the expert applies the facts and methods to the case at hand.' " Houser v. Norfolk S. Ry. Co. ,
With respect to Dr. Danoff's opinion that sodium bicarbonate should have been administered sooner, Nurse Hines argues Dr. Danoff's testimony is not reliable by pointing to the Neonatal Resuscitation Textbooks which states that the administration of sodium bicarbonate is controversial and that it can be harmful. (Hines Mem. 10.) Nurse Hines cites the opinion of her own expert, Warren Rosenfeld, M.D. ("Dr. Rosenfeld"), that if sodium bicarbonate had been given in the delivery room to I.M., it would have presented a breach of the standard of care because NRP states that sodium bicarbonate should not be used early in a resuscitation (Hines Mem. 11 (citing Rogers's Aff. Ex. M, at 5 ("Rosenfeld Expert Rep.") ).) Nurse Hines also cites Dr. Senguttuvan's expert, Dr. Steele, (Hines Mem. 12 (citing Steele Expert Rep. 7-8) ), and ORMC and Nurse Bast's expert, Ivan Hand, M.D. ("Dr. Hand") (Hines Mem. 13 (citing Rogers's Aff. Ex. O, at 4 ("Hand Expert Rep.") ) ), both of whom opined that sodium bicarbonate could only be administered after proper ventilation was achieved and that sodium bicarbonate was timely administered to I.M. Nurse Hines's argument misses the point-the fact that Defendants' experts disagree with Dr. Danoff's conclusions does not render his testimony unreliable. A reasonable jury could credit Dr. Danoff's opinion that sodium bicarbonate should have been administered, if not immediately, then certain before an hour since delivery went by. It is not for the Court at this stage to decide which version of events and which explanation of I.M.'s injuries is more plausible. See Bale v. Nastasi,
With respect to Dr. Danoff's opinion that the endotracheal tube was not properly placed, Nurse Hines points to evidence in the record that the baby's oxygenation and ventilation were not compromised. (Hines Mem. 13.) She cites Defendants' experts' opinions and an academic paper to argue that Dr. Danoff's opinion about the meaning of the baby's pH levels shows that he does not understand what cord gas findings represent. (Id. at 14.) Nurse Hines argues that Dr. Danoff improperly compared the cord gas pH reading of 7.087 with the baby's pH of 6.95 at 21 minutes of life. She argues that the cord gas reading represented the baby's condition prior to the prolapse and is therefore an inaccurate point of comparison. (Id. ) Here too, a reasonable jury could instead credit the academic articles Plaintiffs cite in their Memorandum and the portions of expert testimony Plaintiffs rely on to support their interpretation of what a baby's cord gas numbers and pH levels mean. (See Pls.' Mem. 8-11.) Nurse Hines further argues that Dr. Danoff did not explain his methodology for arriving at his opinions, but rather "merely states that one set of figures which, on their face, appear to be a worse result, are indeed a worse result." (Hines Mem. 16.) This mischaracterizes Dr. Danoff's explanation-he argued that the causal chain was that the endotracheal tube was improperly placed, that this led to improper ventilation, which led to further hypoxia, worsening of the metabolic acidosis and respiratory acidosis, and that the lower pH is one piece of evidence supporting his theory. (Danoff Expert Rep. 9-10.) In his deposition he explained *195that a decrease in the pH was related to an increase in the severity of acidosis. (Danoff Dep. 82-83.) That Defendants disagree with Dr. Danoff about the utility and reliability of the cord gas reading does not render his testimony unreliable.43
Nurse Hines makes similarly unavailing arguments about Dr. Danoff's testimony regarding I.M.'s twitching and whether phenobarbital should have been administered sooner. She cites Defendants' experts' opinions concluding that the twitching was not necessarily indicative of seizure activity. (Hines Mem. 16-17.) This only further points out that there is a factual dispute as to whether and when I.M. was experiencing seizures and when phenobarbital should have been administered. Nurse Hines also argues that Dr. Danoff jumped to the conclusion that I.M. was experiencing seizures without explaining his method for reaching that conclusion. (Id. at 18.) Dr. Danoff, however, did in fact explain that he concluded the baby's early twitching was seizure activity because of her condition at birth and because of the various other symptoms she was exhibiting, and he pointed out that the baby was eventually diagnosed with and treated for seizures. (Danoff Expert Rep. 9-10.) Dr. Danoff conceded that there are many reasons babies twitch, but concluded, "[t]his baby was seizing. The baby was acidotic. The baby was hypoxic at or before birth.... I am not talking about some hypothetical baby who twitched." (Danoff Dep. 98.)
The Court concludes that there is enough in the record to reject the claim that Dr. Danoff's testimony is unreliable. He explained what he believes Defendants' deviations from the standard of care were, what evidence he reviewed, how he arrived at his opinions, and his statements are not clearly contradicted by the record. Cf. Foley,
Because the Court concludes that Dr. Danoff is qualified to testify and does not find his testimony unreliable, neonatal Defendants' argument that Plaintiffs cannot prevail on their medical malpractice claim because they do not have a qualified expert, fails.
iii. Medical Malpractice Claim as to Nurse Hines
The only argument Nurse Hines put forth for summary judgment on the medical malpractice claim was that Plaintiffs' expert was not qualified. She did not submit evidence or argue that there is no factual dispute as to whether her actions breached the standard of care, or whether *196a breach of the standard of care caused I.M.'s injuries. See Lettman,
iv. Medical Malpractice Claim as to Dr. Senguttuvan
Dr. Senguttuvan argues that the existence of a patient-doctor relationship is a question of law and that the Court should find she did not have a duty to I.M. because she arrived at the hospital after the alleged malpractice. (Senguttuvan Mem. 7-10.)44
Under New York law a physician-patient "relationship is created when the professional services of a physician are rendered to and accepted by another person for the purposes of medical or surgical treatment." Lee v. New York ,
As the Court discussed in supra Section I.A.3.a, Dr. Senguttuvan's testimony that sodium bicarbonate and phenobarbital were administered before she arrived, and that she only entered a cabinet override, conflicts with Nurse Hines's testimony that the sodium bicarbonate injection was administered at 11:04 a.m., and that the phenobarbital was first given at 11:58 a.m., both after Dr. Senguttuvan arrived. Nurse Hines testified that she and Dr. Senguttuvan were responsible for the timing of when sodium bicarbonate and phenobarbital were given. (Hines Dep. 141-42). Dr. Senguttuvan's argument that she arrived over an hour after the endotracheal tube was first placed, (Senguttuvan Mem. 9), is also unavailing because Dr. Senguttuvan testified that the whole NICU team, of which she was a part, was responsible for monitoring the vent settings and the endotracheal tube, (Pls.' 56.1 ¶¶ 259-60). Dr. Senguttuvan at one point *197ordered an adjustment of the mechanical ventilation settings. (Id. ¶ 258). Where the evidence presents "a question of 'he said, she said' " the court "cannot ... take a side at the summary judgment stage." Fincher v. Depository Trust & Clearing Corp. ,
Dr. Senguttuvan herself testified that she evaluated I.M.'s condition and provided medical care and treatment to I.M. (Pls.' 56.1 ¶¶ 271-72.) From the time Dr. Senguttuvan arrived until I.M. was transferred, I.M.'s care was managed by her and the NICU team. (Id. ¶¶ 259-60, 273.) Dr. Senguttuvan was the attending neonatologist working on I.M.'s treatment, (id. ¶¶ 89-90), as there were no other neonatologists at the hospital until she arrived, (Senguttuvan Dep. 38). Dr. Senguttuvan also testified that she had the authority to instruct Nurse Hines and the other nurses in the treatment of I.M. (Id. at 46.) A reasonable jury could conclude that Dr. Senguttuvan was present during critical portions of I.M.'s treatment and provided care that established a physician-patient relationship. Thus, Dr. Senguttuvan's argument that she had no duty to I.M. fails at this stage.
Dr. Senguttuvan did not submit evidence or argue that there is no factual dispute as to whether her actions breached the standard of care, or whether a breach of the standard of care caused I.M.'s injuries. See Lettman ,
b. Nurse Bast
Nurse Bast and ORMC argue that Plaintiffs cannot succeed on their medical malpractice claim because they did not submit an expert report from an expert in obstetrical nursing or from any nursing expert. They argue that Dr. Danoff and Dr. Hamar are not qualified to testify about obstetrical nursing, and that Dr. Hamar failed to state any alleged deviations from the standard of obstetrical nursing care attributable to Nurse Bast because his overall criticism was directed at Dr. DiCostanzo. (ORMB and Bast Mem. 12-14.)45
As noted, an expert "need not be a specialist in the exact area of medicine implicated by the plaintiff's injury." Loyd,
Nurse Bast also argues that Dr. Hamar did not base his opinion on facts personally known to him or facts contained in the record. (ORMC and Bast Reply 6.) But Dr. Hamar outlined in his expert report that he reviewed the ORMC records for Ms. Hartmann and I.M., and the deposition transcripts of Nurse Bast, Dr. DiCostanzo, Ms. Hartmann, Nurse Hines, Dr. Kothari, and Dr. Senguttuvan. (Hamar Expert Rep. 2.) Nurse Bast and ORMC make no further arguments about Dr. Hamar's reliability, and the Court is satisfied based on a review of Dr. Hamar's testimony, that he provided sufficient "explanation as to how [he] came to his conclusion and what methodologies or evidence substantiate that conclusion." Riegel,
Nurse Bast and ORMC also argue that Dr. Hamar did not attribute any deviations to Nurse Bast. This is incorrect. Dr. Hamar attributed the failure to monitor the baby's heart rate after the prolapsed cord diagnosis to Nurse Bast. (Hamar Expert Rep. 5-6). He also attributed the 12-minute delay from getting to the OR to starting surgery to the whole surgical team. (Id. at 7-8.) And, he attributed the 10-minute delay from diagnosis to leaving for the OR to "Dr. DiCostanzo, Nurse Bast, and the ORMC staff." (Id. at 9.)
Defendants ORMC and Bast also cite to portions of the ORMC charts and their own expert testimony to argue that Nurse Bast followed the standard of care. (ORMC and Bast Reply 8-10.) This only highlights that there are disputed questions of fact regarding whether Nurse Bast breached the standard of care and whether her breach proximately caused Plaintiffs' injuries. See Lettman,
c. ORMC
i. Vicarious Liability as to Non-Employees
Under the doctrine of respondeat superior, a hospital may be vicariously liable for the medical malpractice of physicians, nurses, and other healthcare professionals who act in an employment or agency relationship to the hospital. See Hill v. St. Clare's Hospital,
However, a hospital is generally not liable for the malpractice of a private physician who does not serve as an employee or agent of the hospital, and who independently treats a patient at a hospital as an independent private physician. See Raschel v. Rish,
"[A]n exception to the general rule exists when a patient comes to an emergency room seeking treatment from the hospital and not from a particular physician of the patient's choosing." Orgovan v. Bloom ,
Vicarious liability for the malpractice of a private attending may also be imposed upon on a hospital under a theory of apparent or ostensible agency. See Dragotta v. Southampton Hosp. ,
In order to create such apparent agency, there must be words or conduct of the principal, communicated to a third party, which give rise to the appearance and belief that the agent possesses the authority to act on behalf of the principal. The third party must reasonably rely on the appearance of authority, based on some misleading words or conduct by the principal, not the agent. Moreover, the third party must accept the services of the agent in reliance upon the perceived relationship between the agent and the principal, and not in reliance on the agent's skill.
A defendant hospital moving for summary judgment on the ground that it is not vicariously liable for malpractice of *200physicians who are not its employees must submit evidence demonstrating the absence of material issues of fact concerning ostensible or apparent agency. See Mezzone v. Goetz ,
Defendants Dr. DiCostanzo, Dr. Senguttuvan, Nurse Hines, and Dr. Kothari or NAPA were not ORMC employees and under the general rule, ORMC would ordinarily not be vicariously liable for its non-employees' alleged malpractice. See Raschel ,
Plaintiffs argue that the emergency exception to the rule applies. (Pls.' Mem. 30.) ORMC counters that Ms. Hartmann did not come to ORMC for emergency treatment, but rather that she came at the instruction of her obstetrician at MCHC. (ORMC and Bast Mem. 9-10; ORMC and Bast Reply 10.) Indeed, Ms. Hartmann's birthing plan was to deliver at ORMC, with the assigned physician employed at MCHC on the day of her delivery. She knew that MCHC patients delivered at ORMC. (Pls.' 56.1 ¶ 176.) However, she also entered the hospital through the emergency department, (id. ¶ 177), and eventually underwent an emergency c-section and received other emergency treatment, (id. ¶ 180). She interacted with Dr. DiCostanzo, Dr. Senguttuvan, Nurse Hines, and Dr. Kothari under emergency circumstances and none of them was her OBGYN. (Id. ¶¶ 12, 175-76, 180.) All the alleged deviations from the standard of care occurred during the administration of emergency treatment. Ms. Hartmann arguably did not have any particular doctor in mind when she sought life-saving treatment and expected that a hospital that held itself out as providing emergency services would do so in accordance with the standard of care. See Orgovan,
The Court could deny summary judgment on the grounds of the emergency exception alone, but will also briefly address whether the apparent agency exception applies. ORMC argues that Ms. Hartmann knew Dr. DiCostanzo was not an agent of ORMC and that she was instead affiliated with MCHC. (ORMC and Bast Mem. 8-9.) Ms. Hartmann indeed testified that she knew who Dr. DiCostanzo was as she had seen her walking around at MCHC even though she never had her as her doctor. (Hartmann Dep. 123.) However, ORMC failed to establish that there was no issue of fact as to whether Ms. Hartmann expected treatment from the hospital or from Dr. DiCostanzo. Ms. Hartmann had expected to have an MCHC doctor help her with a natural vaginal delivery. (Pls.' 56.1 ¶¶ 9, 175-76, 178.) Once the treatment turned into an emergency c-section, it is not at all clear that Ms. Hartmann still expected MCHC and Dr. DiCostanzo, rather than ORMC, to provide care. See Halkias,
As for Dr. Senguttuvan, Nurse Hines, and Dr. Kothari or NAPA's affiliation with ORMC, ORMC argues that it made no representations about their relationship to the hospital, and that there is no testimony from Ms. Hartmann that she relied on representations by ORMC. (ORMC and Bast Mem. 12.) Plaintiffs counter that ORMC held itself out as controlling Dr. Senguttuvan and Nurse Hines because they both provided treatment to I.M. only because of their relationship with ORMC-Ms. Hartmann did not choose them as the emergency neonatal service provider. (Pls.' Mem. 30-32.) Dr. Senguttuvan was the only neonatologist attending at ORMC when she arrived, (Senguttuvan Dep. 38), and Nurse Hines was the only neonatology nurse practitioner on the premises at ORMC that morning, (id. at 42). Dr. Senguttuvan even testified that she wore a security badge that had "Orange Regional Medical Center" on it. (Id. at 61.) ORMC had the burden of submitting evidence to show that there is no material issue of fact concerning apparent agency, see Contreras ,
If a jury were to find that the apparent agent exception applies, ORMC would be vicariously liable for their alleged malpractice. Because there is a question of fact as to whether ORMC is vicariously liable for Dr. DiCostanzo, Dr. Senguttuvan, Nurse Hines, or Dr. Kothari or NAPA's alleged malpractice, the Court denies ORMC and Nurse Bast's Motions for Summary Judgment with respect to ORMC's vicarious liability for its non-employees.46
ii. Liability for Negligence of Employees
ORMC further argues that even if one of its employees, like Nurse Bast, was negligent, the hospital is shielded from liability where the employee acted at the instruction of a private attending physician. (ORMC and Bast Mem. 14-16.) Plaintiffs counter that hospitals and their employees may be concurrently liable with private attending physicians, and that Nurse Bast committed independent acts of negligence. (Pls.' Mem. 27-28.)
"A hospital may not be held liable for injuries sustained by a patient who is under the care of a private attending physician chosen by the patient where the resident physicians and nurses employed by the hospital merely carry out the orders of the private attending physician, unless the hospital staff commits 'independent acts of negligence or the attending physician's orders are contraindicated by normal practice.' " Gattling v. Sisters of Charity Med. Ctr. ,
However, "a hospital may ... be held concurrently liable with a private practitioner for the independent negligence of the former's medical staff." Gerner v. Long Island Jewish Hillside Med. Ctr. ,
ORMC and Nurse Bast point to the fact that, on the date of I.M.'s delivery, Dr. DiCostanzo was a private attending physician employed by MCHC, and she provided treatment as an employee of MCHC. (DiCostanzo Dep. 142.) She expected the ORMC medical staff and nurses, including Nurse Bast, to follow her instructions. (Id. at 77.) Plaintiffs, however, point out that there are alleged independent acts of negligence by Nurse Bast, such as the failure to monitor I.M. after the cord prolapse, and the delays in transferring Ms. Hartmann to the OR and then getting her prepared for anesthesia and surgery. (Hamar Expert Rep. 5.) Indeed, Dr. Hamar opined that everyone on the surgical team shared responsibility for causing the delay in getting Ms. Hartmann into surgery. (Id. at 9.) At the very least, this creates an issue of material fact about whether Nurse Bast committed independent acts of negligence or whether she administered all treatment at the instruction of Dr. DiCostanzo or independently. The Court "cannot ... take a side at the summary judgment stage," Fincher,
The Court therefore denies ORMC and Nurse Bast's Motion for Summary Judgment on the question of ORMC's liability for Nurse Bast's possibly independent negligent acts.
2. Lack of Informed Consent
"To succeed in a medical malpractice cause of action premised on lack of informed consent, a plaintiff must demonstrate that (1) the practitioner failed to disclose the risks, benefits and alternatives to the procedure or treatment that a reasonable practitioner would have disclosed and (2) a reasonable person in the plaintiff's position, fully informed, would have elected not to undergo the procedure or treatment." Orphan v. Pilnik ,
"Expert medical testimony is required to prove the insufficiency of the information disclosed to the plaintiff." Orphan ,
Moreover, by statute in New York, in order to recover under a lack of informed consent theory, the case must involve "either (a) non-emergency treatment, procedure or surgery, or (b) a diagnostic procedure which involved invasion or disruption of the integrity of the body."
Neither of Plaintiffs' experts testified about whether Ms. Hartmann consented to treatment for herself or for I.M. Neither expert testified about the sufficiency of the information provided to Ms. Hartmann about her or I.M.'s treatment. Plaintiffs have thus failed to proffer the required expert testimony to make out a lack of informed consent claim. See *205Tropeano,
Moreover, Defendants provided emergency services to Ms. Hartmann and I.M. The Parties agree that a cord prolapse is a "true obstetric emergency," (Pls.' 56.1 ¶ 189), and that I.M. was not breathing when she was born and was "as sick as you could get," (id. ¶¶ 22, 150-51). The deviations from the standard of care that Plaintiffs' experts identified relate to Ms. Hartmann's emergency c-section and to the emergency resuscitation and stabilization efforts applied to I.M. immediately after delivery until her transfer to WMC. (See generally Danoff Expert Rep.; Hamar Expert. Rep.) Plaintiffs thus cannot make out a lack of informed consent claim because this case involves neither "(a) non-emergency treatment, procedure or surgery, [n]or (b) a diagnostic procedure ..."
Nowhere in Plaintiffs' filings or memorandum opposing the Motions for Summary Judgment do Plaintiffs point to evidence about when consent should have been obtained and was not obtained. Nor do they identify what information should have been provided and was not. Most importantly, Ms. Hartmann admitted that the signatures on the Consent for Surgical/Invasive Procedure form and the Consent for Anesthesia Services form are her signatures. (Hartmann Dep. 147-48, 302-03.) Ms. Hartmann testified she consented to I.M. being transferred to WMC. (Id. at 236.) "To survive a [summary judgment] motion ..., [a nonmovant] need[s] to create more than a 'metaphysical' possibility that [her] allegations were correct; [s]he need[s] to 'come forward with specific facts showing that there is a genuine issue for trial. ' " Wrobel,
The Court therefore grants Nurse Hines's, Dr. Senguttuvan's, and ORMC and Nurse Bast's Motions for Summary Judgment with respect to Plaintiffs' lack of informed consent claim.
3. Loss of Services
Under New York law, a parent may not recover damages for loss of consortium resulting from a child's death or injury, but "[a] parent may recover for loss of services of a child upon a proper showing of the value of [the] lost services." Santoro ex rel. Santoro v. Donnelly ,
New York courts have allowed plaintiff parents to maintain actions for medical expenses incurred in an injured child's treatment even where they cannot recover for the loss of services. See, e.g., Guerriero v. Sewanhaka Cent. High School Dist. ,
Nowhere in Plaintiffs' filings or memorandum opposing the Motions for Summary Judgment do Plaintiffs point to any evidence related to the loss of services Ms. Hartmann will incur due to I.M.'s injuries. Plaintiffs do not even offer "scanty evidence," about what services I.M. would have hypothetically been able to provide and will now not be able to provide. See Martell,
Ms. Hartmann did, however, testify about the child's medical expenses incurred thus far, stating that she has an outstanding $ 60,000 bill from WMC for I.M.'s treatment that she has not been able to pay. (Hartmann Dep. 30.) She also testified that there are several smaller bills of a few hundred dollars each, as well as a $ 4,000 bill, each of which she has also been unable to pay. (Id. at 227-28.) She did not testify about I.M.'s future medical expenses.
"[W]hen the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim," in which case "the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." CILP Assocs., L.P. ,
*207Thus, Ms. Hartmann raises a triable issue on the question of medical expenses, and she can maintain an action for medical costs. In the absence of any evidence about the lost services, she cannot, however, recover for the loss of services. See Guerriero ,
The Court therefore denies Nurse Hines's, Dr. Senguttuvan's, and ORMC and Nurse Bast's Motions for Summary Judgment with respect to Plaintiffs' loss of services claim but only insofar as that claim relates to the medical expenses Ms. Hartmann testified she has incurred for the treatment of I.M. thus far.
4. Negligence Hiring and / or Supervision by ORMC
"New York law does not permit a claim for negligent hiring, training, retention[,] or supervision where the defendants act in the scope of their employment." Schoolcraft v. City of New York,
To state a claim for negligent hiring, training, supervision or retention, "in addition to the standard elements of negligence, a plaintiff must show: (1) that the tort-feasor and the defendant were in an employee-employer relationship; (2) that the employer knew or should have known of the employee's propensity for the conduct which caused the injury prior to the injury's occurrence; and (3) that the tort was committed on the employer's premises or with the employer's chattels." Ehrens v. Lutheran Church,
"Summary judgment is appropriate where there is no proof that the employer ... acted negligently in hiring, training, supervising or retaining an employee." Tsesarskaya v. City of New York ,
Plaintiffs failed to submit any evidence of ORMC's hiring, training, supervision or retention policies. Plaintiffs also do not point to any evidence about improper investigation into any individual Defendant's background, nor any allegations of a *208propensity for conducting medical malpractice by any of the individual Defendants. Therefore, the Court grants ORMC's Motion for Summary Judgment as to Plaintiffs' claim for negligent hiring, training, retention or supervision.
III. Conclusion
For the foregoing reasons, the Court denies Dr. Senguttuvan, Nurse Hines, and ORMC and Nurse Bast's Motions for Summary Judgment with respect to the medical malpractice claim; denies ORMC and Nurse Bast's Motion for Summary Judgment on the question of vicarious liability with respect to non-employees and employees; denies Dr. Senguttuvan, Nurse Hines, and ORMC and Nurse Bast's Motions for Summary Judgment with respect to the loss of services claim, but only insofar as that surviving claim relates to the medical expenses Ms. Hartmann testified she incurred for the treatment of I.M. so far; grants Dr. Senguttuvan, Nurse Hines, and ORMC and Nurse Bast's Motions for Summary Judgment with respect to the lack of informed consent claim; and grants ORMC and Nurse Bast's Motion for Summary Judgment as to Plaintiffs' claim for negligent hiring, training, retention or supervision. The Clerk of Court is respectfully directed to terminate the pending Motions. (Dkt. Nos. 111, 115, 124.) The Court will hold a Status Conference on February 14, 2019 at 11:00am.
SO ORDERED.
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