Faicco v Golub2010 NY Slip Op 33686(U)

December 14, 2010Supreme Court, Suffolk County

Docket Number: 05-29029Judge: Jeffrey Arlen Spinner

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SHORT FORM ORDER INDEX No.CAL. No.

05-2902910-00115MM

PRESENT:

SUPREME COURT - STATE OF NEW YORKLA.S. PART 21 - SUFFOLK COUNTY

Hon. JEFFREY ARLEN SPINNERJustice of the Supreme Court

---------------------------------------------------------------XAVA FAICCO, An Infant by her Parents andNatural Guardians, KRISTEN FAICCO and JOI-INFAICCO, and KRISTEN FAICCO and JOHNFAICCO, Individually,

Plaintiffs

- against -

STEPHEN GOLUB, M.D., PI-IILIP J.MAKOWSKI, M.D., PORT JEFFERSONOBSTETRICS & GYNECOLOGY, P.C., JERRYG. NINIA, M.D., DR. JERRY NINIA OB-GYN,PLLC d/b/a ISLAND OBSTETRICS ANDGYNECOLOGY CENTER, DAVID PAUL, M.D.,LONG ISLAND ANESTHESIA PHYSICIANS,LLP, SAMINA BHATTY, M.D., and ST.CHARLES HOSPITAL AND REHABILIT ArION:CENTER,

Defendants---------------------------------------------------------------X

MOTION DATE 6-10-10ADJ. DATE 10-6-10Mot. Seq. # 001 - MG

# 002 - MG

KRAMER, DILLOF, LIVINGSTON, et 1.Attorney for Plaintiffs217 Broadway, lOth FloorNew York, New York 10007

GEISLER & GABRIELE, LLPAttorney for Defendants Golub, Makow ki & PortJefferson OBGYN100 Quentin Roosevelt Boulevard, P.O. ox 8022Garden City, New York 11530

ANTHONY P. VARDARO, P.c.Attorney for Defendants Jerry Ninia732 Smithtown Bypass, Suite 203Smithtown, New York 11787

CALLAN, KOSTER, BRADY & BREN AN, LLPAttorney for Defendants Paul & LI Anes hesiaPhysiciansOne Whitehall StreetNew York, New York 10004

KOPFF, NARDELLI & DOPF, LLPAttorney for Defendants Bhatty & St. CarlesHospital & Rehabilitation Center440 Ninth AvenueNew York, New York 10001-1688

Upon the following papers numbered I to lL read on these motions for summary judgment; Notice of Motion/ rderto Show Cause and supporting papers I - 4, 5 - 8 ; Notice of Cross Motion and supporting papers_; Answering Affidavit andsupporting papers 9 - 10, 11 - 13 ; Replying Affidavits and supporting papers 14 - 16, 17 - 18 ; Other _; ( . to

eoulisel ill support and opposed to tlie lItotioll) it is,

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ORDERED that the motions (001, 002) are consolidated for the purpose of this determinatioand it is further

ORDERED that the motion (001) by defendant Jerry G. Ninia, M.D., Dr. Jerry Ninia OB-GPLLC, doing business as Island Obstetrics and Gynecology Center, for summary judgment dismissithe action and all counterclaims as asserted against them is granted with prejudice; and it is further

ORDERED that the motion (002) by defendants Steven Golub, M.D., Philip Makowski, M.. ,and Port Jefferson Obstetrics and Gynecology, P.C. for summary judgment dismissing the action an allcounterclaims as asserted against them is granted with prejudice.

In this medical malpractice action, plaintiffs Kristen Faicco and John Faicco allege thatdefendants departed from accepted standards of medical care in the delivery of their daughter, the in antplaintiff Ava Faicco on December 28, 2004, and also allege a derivative cause of action. The recordreveals that plaintiff Kristen Faicco (hereinafter "the plaintiff") was a patient of defendantgynecologist/obstetrician Stephen Golub, M.D. She presented to defendant's office for infertilitytreatment on January 26, 2004. By the May 12,2004 visit, plaintiff was pregnant; however, defenda tGolub noted that the progesterone levels were low and prescribed prometrium until the fetus was 11weeks gestation. Plaintiff was seen, thereafter, on a regular basis in the office for check ups andsonograms. By December 22,2004, the gestational age of the fetus was 37.5 weeks and the grossstructure development of the fetus appeared normal to the extent detectable by sonogram.

On December 27, at approximately 11:20 p.m., Kristen Faicco began experiencing labor paiand her membranes spontaneously ruptured. After notifying defendant Golub, she was admitted to t elabor and delivery unit at defendant St. Charles Hospital and Rehabilitation Center (hereinafter "St.Charles") on December 28, 2004 at 1:00 a.m. She was admitted by the nurse on duty and placed on nelectronic fetal monitor. At approximately 2:30 a.m., a vaginal examination by the nurse revealed th tthe plaintiff was four centimeters (cm) dilated and the fetal heart rate was 140 beats per minute. Atapproximately 2:48 a.m., defendant Golub arrived at the unit and examined the plaintiff. He placed'call to the anesthesiologist on call. At 2:59 a.m., the fetal heart rate began to decelerate to 55 beats p'rminute. Defendant Golub performed interauterine resuscitation efforts to increase the fetal heart ratewhich was successful for only a ShOlitime. At this time, the anesthesiologist, defendant David Paul,M.D., returned the call and was told by the nurse that he was needed for defendant Golub's patient. tisundisputed that in December 2004, St. Charles did not require its on-call anesthesiologists to bephysically present within the hospital for the entire duration of their on-call period.

At 3:09 a.m., defendant Golub diagnosed fetal bradycardia with suspected occult cord prolap cand determined that a caesarean section was necessary. The patient was transferred to the operatingroom. Defendant Jerry Ninia, M.D. was called to assist defendant Golub with the surgery and arriveshortly thereafter. At 3:31 a.m., defendant Paul arrived and administered the anesthesia. At 3:35 a.ll .,defendant Golub made the first incision and the infant plaintiff was delivered at 3 :38 a.m. and wastransferred to the neonatal unit. It was determined that the infant plaintiff sustained hypoxic ischemiencephalopathy, brain damage and cerebral palsy. This action was subsequently commenced.

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Defendants Jerry G. Ninia, M.D., Dr. Jerry Ninia OB-GYN, PLLC, doing business as IslandObstetrics and Gynecology Center ("the Ninia defendants"), now move for summary judgmentdismissing the action. Defendants Steven Golub, M.D., Philip Makowski, M.D., and Port JeffersonObstetrics and Gynecology, P.C. ("the Golub defendants") move for the same relief.

In the bill of particulars, plaintiffs allege, inter alia, that defendants failed to take a properhistory, monitor the status of the mother and the infant plaintiff, timely and properly monitor the fet Iheart tones and contraction activity, order a double setup at the time of the initial vaginal examinatio ,appreciate fetal bradycardia and signs of fetal distress, request a neonatologist to be present at the bi h,timely and properly deliver the infant plaintiff, properly prepare the plaintiff for an emergency caesa eansection, call the anesthesiologist in a timely manner, and to timely perform a caesarean section.

The requisite elements of proof in a medical malpractice case are (l) a deviation or departurefrom accepted practice, and (2) evidence that such departure was a proximate cause of injury or dam ge(Amsler v Verrilli, 119 AD2d 786,501 NYS2d 411 [2d Dept 1986]; De Stefano v Immerman, 188AD2d 448, 591 NYS2d 47 [2d Dept 1992]). The issue of the duty owed as between physicians, an ,ultimately, to the patient, is a question oflaw (Lipton by Lipton v Kaye, 214 AD2d 319,624 NYS2d 590[1st Dept 1995]). The proponent of a summary judgment motion must make a prima facie showing fentitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence fany material issues of fact (Winegrad v New York Univ. Met!. Ctr., 64 NY2d 851, 853, 487 NYS2d 16[1985]; Zuckerman v New York, 49 NY2d 557, 562, 427 NYS2d 595 [1980]; Sillman v TwentiethCentury-Fox Film Corp., 3 NY2d 395, 404, 165 NYS2d 498 [1957]). On a motion for summaryjudgment, a defendant doctor has the burden of establishing the absence of any departure from goodaccepted medical practice or that the plaintiff was not injured thereby (Williams v Sahay, 12 AD3d 3[2nd Dept, 2004]). To prove a prima facie case of medical malpractice, a plaintiff must establish ththe defendant's negligence was a substantial factor in producing the alleged injury GI'ee, DerdiarianFelix Contracting Corp., 51 NY2d 308, 434 NYS2d 166 [1980]; Prete v Rajla-Demetrious, 224 A 2d674,638 NYS2d 700 [2d Dept 1996]). Except as to matters within the ordinary experience andknowledge of laymen, expert medical opinion is necessary to prove a deviation or departure fromaccepted standards of medical care and that such departure was a proximate cause of the plaintiff sinjury (see, Fiore v Galang, 64 NY2d 999, 489 NYS2d 47 [1985]; Lyons v McCauley, 252 AD2d 5 6,675 NYS2d 375 [2d Dept 1998]).

In support of their motion, defendant Ninia submits, inter alia, the pleadings, the bill ofparticulars, deposition transcripts of defendants Ninia, Golub, and John Faicco, a copy of the plaintif s'hospital record, and the affirmation of Henry K. Prince, M.D. Defendant Ninia testit-ied that he is du ylicensed to practice medicine in the State of New York and is board certified in the fields of obstetricand gynecology. He stated that he is a private attending physician at St. Charles. He did not recall enhe was called by the hospital on December 28, 2004. He recalled that he was told that there was apatient with a fetal bradycardia and he was needed right away. When he arrived at the hospital, hewalked past the nurses station so thcy would know he was there. He then went into the locker room tchange into scrubs. He spoke with defendant Golub who thanked him for coming in. He recalledwaiting near the scrub sink outside the operating room. He scrubbed in and assisted defendant Golub inthe performance of a caesarean section. During the surgery he applied fundal pressure to the abdome ,

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cut sutures, helped with retraction and other functions as directed by the operating surgeon. He left heoperating room before defendant Golub. He went home after leaving the operating room. He stated thathe never met the plaintiff and has no office records relating to the plaintiff. He stated that, before anafter the delivery, he had no contact with the plaintiff or her husband. After the operation, he wenthome. He had no charting responsibilities, and wrote no orders or notes in the hospital record. He .dnot produce the operative report.

Defendant Golub testified that defendant Ninia was called to assist him with the emergencycaesarean section at approximately 3: 10 a.m. While he was waiting for defendant Paul to arrive,defendant Ninia was present, and defendant Ninia scrubbed in at the same time as defendant Golub.When defendant Paul arrived, both he and defendant Ninia were ready to begin the surgery. PlaintifJohn Faicco testified that he recalled observing defendant Ninia approach defendant Golub in thehallway prior to the surgery and ask defendant Golub if he needed his assistance.

Dr. Prince affirms that he is duly licensed to practice medicine in the State of New York and saboard certified obstetrician and gynecologist. He opines that the limited contact, care and treatmentrendered by defendant Ninia to plaintiffs Ava Faicco and Kristen Faicco was, at all times, within go dand accepted medical practice, and that the injuries alleged by the plaintiffs were in no way caused 0

contributed to by any alleged acts or omissions by defendant Ninia. Based on the testimonies ofdefendants Ninia, Golub, and plaintiff John Faicco, defendant Ninia was present and ready to assistdefendant Golub in a timely manner. In addition, it is Dr. Henry's opinion that defendant Ninia time yand properly performed all the duties of a surgical assistant during the caesarean section.

Defendant Ninia established his entitlement to judgment as a matter of law (see, Starr v Rog s,44 AD3d 646, 843 NYS2d 371 [2d Dept 2007]; Denenberg v N. Shore Univ. Hosp., 292 AD2d 493,739 NYS2d 191 [2d Dept 2002]; Whalen v Victory Memorial Hosp., 187 AD2d 503 [2d Dept 1992]).'rhus, the burden shifted to plaintiffs to respond with rebutting medical evidence demonstrating adeparture Crom accepted medical procedures (see, Baez v Lockridge, 259 AD2d 573, 686 NYS2d 49[2d Oept 1999]).

In opposition, plaintiffs submits an affirmation of their medical expert, whose name has beenredacted in accordance with Carrasquillo v Rosencrans, 208 AD2d 488, 617 NYS2d 51 (2d Dept1994). I The original unredacted aftidavit has been submitted to the court for inspection under separa ecover. The expert states that it is his opinion that the facts and conflicting testimony make it imposs bIeto state that he was timely and properly in place for the commencement of the caesarean section, and 't istherefore impossible to state with a reasonable degree of medical certainty that he did not contribute t adelay in the performance of the caesarean section and the infant plaintiffs injuries. He notes NursePetriello's testimony that she did not recall whether defendant Ninia was standing near the scrub sink

I The Court has conducted an in-camera inspection of the original unredacted affirmationand finds it to be identical in every way to the redacted affirmation in plaintiffs oppositionpapers with the exception of the redacted expert's name. In addition, the Court has returned theunredacted affirmation to the plaintiffs attorney.

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prior to the surgery. However, Nurse Petriello also conceded that she was busy attending to the plai tiff.He also points to Nurse Burns' testimony that she was seated at the nurses station and did not seedefendant Ninia walk by. However, she conceded that there was another way to enter the locker roowhich did not entail passing the nurses station. The expert's opinion failed to raise an issue of fact ( ee,Alvarez v Prospect Hosp., 68 NY2d 320,324-5,508 NYS2d 923 [1986]). Accordingly, the motion ythe Ninia defendants is granted.

Turning to the motion by the Golub defendants, they submit, inter alia, the affirmation of HillaYu, M.D., and the deposition testimony of non-party Gina Petriello, R.N. Dr. Yu avers that he is dulicensed to practice medicine in the State of New York and is board certified in the specialty of obst ricsand gynecology. He opines that at no point in their involvement with plaintiffs Kristen Faicco and vaFaicco did the Golub defendants depart from the standards of acceptable medical practice, nor did th ycause or contribute to any claimed injury or damage. Dr. Yu avers that plaintiff first presented to thGolub defendants on January 26, 2004 for infertility treatment. On May 12,2004, plaintiff had an e rlyintrauterine pregnancy with a questionable threatened spontaneous abortion. Defendant Golubrecommended progesterone supplements and prometrium tablets every six hours. On May 17,2004,plaintiff s blood progesterone level had increased. On May 19, 2004, plaintiff was seen by defendanGolub. A sonogram showed cardiac activity in a single intrauterine fetus and no sign of intrauterinebleeding. On June 2, 2004, plaintiff was seen by defendant Golub, who reported that the ultrasoundshowed a fetus of gestational age of 8 weeks 2 days with cardiac activity. On June 25, 2004, plaintifwas seen by defendant Golub. The fetus was at gestational age 11 weeks 4 days with a fetal heart rat of152 beats per minute. On July 12, August 9, and September 8, 2004, plaintiff was seen by defendantGolub in the office. The fetus was growing and had a good heart beat.

On October 11, 2004, plaintiff was seen by defendant Makowski. The fetal gestational age27 weeks with a fetal heart rate of 156. On October 20, November 17, December 1, and December 1 ,2004, plaintiff was seen by defendant Golub. The fetus was growing normally and the fetal heart ratwas within normal limits. On December 22, 2004, plaintiff was seen by defendant Makowski, whonoted that plaintiff's cervix was at 2 em with 75% effacement. The gestational age was 37.5 weeks dthe fetal heart rate was within normal limits. On December 27,2004, at approximately 11:20 p.m.,plaintiff's membranes spontaneously ruptured. On December 28,2004 at 1:00 a.m., plaintiff wasadmitted to the labor and delivery unit at St. Charles. According to the records, Dr. Yu states thatdefendant Makowski was not present at St. Charles Hospital on December 28, 2004 and was notinvolved in the care and/or treatment of the plaintiffs on December 28,2004. It is Dr. Yu's opinion,based on a reasonable degree of medical certainty, that defendant Makowski's pre-natal care andtreatment of the plaintiff was, in all ways, appropriate and proper. At no point did defendant Makow kideviate from the standard of care in his treatment of this patient. Nothing that defendant Makowski idor failed to do caused or contributed to the plaintiffs' injury and/or damages.

At 1:02 a.m. on December 28, 2004, plaintiff was placed on an electronic fetal monitor. At 2 30a.m., a vaginal examination revealed that the presenting part was in the vertex position, dilation wasem with ruptured membranes, and the fetal heart rate was 140 beats per minute. Plaintiff requestedepidural anesthesia. At 2:48 a.m., defendant Golub spoke with plaintiff, the fetal heart rate was at 15beats per minute and contractions were between one and a half and three minutes apart. Defendant

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Golub requested that a call be placed to the anesthesiologist on call for the administration of an epid ralto the plaintiff. At 2:59 a.m., there was evidence of fetal heart rate deceleration to 55 beats per minu e.Defendant immediately began intrauterine resuscitation efforts in an attempt to increase the fetal hearate. While defendant was attending to plaintiff, the anesthesiologist on call, defendant Paul, called ehospital. Dr. Yu notes Dr. Golub's testimony that he told the nursing staff to tell defendant Paul that hewas needed right away. At 3 :03 a.m., defendant Golub performed a vaginal examination and dilatati nwas noted at 6 cm. In addition, the fetal heart rate responded to the intrauterine resuscitation effort bincreasing from 60 to 100 beats per minute and stayed between 90 and 110 until 3:06 a.m. It is Dr. u' sopinion, based on a reasonable degree of medical certainty, that based on the responses to theintrauterine resuscitation efforts and the reassuring signs of increased fetal heart rate there was no ne dto call a caesarean section at this time. Further resuscitation efforts were made by defendant Golubbetween 3:06 and 3:09 a.m., which increased the fetal heart rate to 160 beats per minute, and there w sno requirement to call a caesarean section at this time. At 3: 10 a.m., defendant Golub appropriatelyexercised good medical judgment in calling a caesarean section based on another fetal heart ratedeceleration in the context of what had transpired since 2:59 a.m. At 3:21 a.m., the plaintiff was in t eoperating room and defendant was ready to proceed with a caesarean section but for the administrati nof anesthesia. At 3:31 a.m., anesthesia was administered by defendant Paul. At 3:35a.m., defendantGolub made the tirst incision, and the infant plaintiff was delivered at 3:38 a.m. Upon delivery,defendant Golub timely and appropriately transferred the care of the infant plaintiff to the neonatal u it.

It is Dr. Yu's opinion, based on a reasonable degree of medical certainty, that defendant Golu 'scare and treatment of the plaintiff was, in all ways, appropriate and proper. Nothing he did or failed tdo caused or contributed to the patient's injury and/or damages. It is further Dr. Yu's opinion, with areasonable degree of medical certainty, that defendants did not deviate from accepted standards of ca ein treating the plaintiff and nothing they did or failed to do caused injury to the patient. The injurysustained by the infant plaintiff is a known potential complication of the birth process, most likely du tounavoidable factors affecting the umbilical cord before birth. It is not the result of deviations fromstandard obstetrical practice.

Gina Petriello testified that she is a registered nurse and was employed at St. Charles Hospital onthe date of the plaintiff's admission. She stated that she was the charge nurse from 7:00 p.m. to 7:00a.m. She testified that every morning between 6:30 and 7:30 a.m., the on-call anesthesiologist for theday usually calls the f100r and tells the charge nurse that he/she is on call for the next twenty four hou s.The charge nurse then places the name of the anesthesiologist on a board at the nurses station. At thetime of the call, the charge nurse updates the anesthesiologist regarding the number of patients on theunit and at what stage of delivery they may be.

The Golub defendants established their entitlement to judgment as a matter of law (see, StarrRogers, supra; Denenberg v N. Shore Univ. Hosp., supra; Whalen v Victory Memorial Hosp., supr ).Thus, the burden shifted to plaintiffs to respond with rebutting medical evidence demonstrating adeparture from accepted medical procedures (see, Baez v Lockridge, supra).

Initially, plaintiffs do not oppose the motion as to defendant Makowski. In opposition to theremainder of the motion, plaintiffs failed to raise a triable issue of fact. The plaintiffs' expert opined 1at

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defendant Golub failed to administer terbutaline or some other tocolytic to arrest the plaintiffscontractions. This was a new theory of liability which was asserted for the first time in opposition to thesummary judgment motion (see, Araujo v Brooklyn Martial Arts Academy, 304 AD2d 779, 780, 75NYS2d 401 [2d Dept 2003]; Winters v St. Vincent's Med. Ctr., 273 AD2d 465, 711 NYS2d 892 [2dDept 2000]; Gustavsson v County of Westchester, 264 AD2d 408, 409, 693 NYS2d 241 [2d Dept1999]) and is rejected (Dolan v Halpern, 73 AD3d 1117,902 NYS2d 585 [2d Dept 2010]; GolubovWolfson, 22 AD3d 635,801 NYS2d 914 [2d Dept 2005]). In addition, the expert conceded that theresuscitation measures to increase the fetal heart rate, and the administration of oxygen and intraveno shydration undertaken by defendant Golub were accepted practices in the obstetrical community undethose circumstances. He also did not dispute defendant Golub's determination that an emergencycaesarean section was necessary, and did not address defendant's performance of the actual procedur .Moreover, inasmuch as Nurse Petriello's testimony established that posting the name of the on-callanesthesiologist on a daily basis was a hospital nursing function, the Court finds, as a matter of law, t atit is not the duty of the obstetrician to be aware of the specific anesthesiologist to call for an emergen ysurgical procedure.

Defendant Paul opposes the motion by the Golub defendants on the ground that he reserves tright to assert, at the time of trial, his common law or statutory rights against the Golub defendants,including those afforded under CPLR Article 16 and General Obligations Law Article 15. The Courtdeclines to entertain defendant Paul's request in that was not served as a motion on notice pursuant tCPLR 2211, 2212(a).

FINAL DISPOSITION

DEe 14 2010Dated:

In sum, the motions by the Ninia defendants and the Golub defendants dismissing the action dall counterclaims as asserted against them are granted with prejudice. The plaintiffs' claims against t emoving defendants, dismissed herein, are severed and the plaintiffs' remaining claims shall continue.

Serve a copy of this Order upon the Calendar Clerk. /} ,../,) j IJ .1/f j/ /) t'///'

/ /1l / /. f / ""/ £7 l/(/JV

J.S.C/YNQEN'PINNER

X NON-FINAL DISPOSITION

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