Ruppert v Jamaica Hosp. Med. Ctr.
Annotate this CaseDecided on April 25, 2006
Supreme Court, Queens County
KATHY RUPPERT, as Personal Representative of the Estate of BONNIE ROSS RUPPERT, deceased a/k/a "ABBY GIRL RUPPERT" and KATHY RUPPERT, Individually, Plaintiff,
against
JAMAICA HOSPITAL MEDICAL CENTER, JOEL WERTHEIMER, M.D., AJEY JAIN, M.D. and LORNA LUMICAO, M.D., Defendants
6532/03
Allan B. Weiss, J.
Upon the foregoing papers it is ordered that these motions are denied.
This is an action to recover for personal injuries sustained by the infant plaintiff resulting from the defendants' alleged medical malpractice.
The plaintiff, KATHY RUPPERT, then 39 weeks pregnant, was [*2]admitted to Jamaica Hospital Medical Center on October 20, 2000, for her labor to be induced. Dr. Joel Wertheimer, the obstetrician on duty at the time in the Jamaica Hospital Obstetrical Unit, was to perform the delivery. In view of the mother's history of a prior pregnancy resulting in a still birth, as well as the history of fetal arrhythmia found during the early weeks of the present pregnancy, Dr. Wertheimer requested that a neonatologist be present for the delivery. The defendant, Dr. Lumicao, the neonatologist on duty in the Jamaica Hospital Neonatology Department responded to Dr. Wertheimer's call.
The baby was delivered at 7:28 p.m. Dr. Lumicao and the on duty neonatologist nurse practitioner appeared in the delivery room and examined and evaluated the baby. Dr. Lumicao noted that the baby was "pink and crying" and assigned APGAR scores of 9 at one minute and 9 at five minutes of life. Dr. Lumicao assigned the baby to the well baby nursery. Approximately ten minutes after arriving in the delivery room Dr. Lumicao and the nurse practitioner left. At 8:15 p.m. when the baby arrived at the well baby nursery, she was "dusky, pale, limp, and unresponsive" with no detectable heartbeat and no breathing. Despite being subsequently resuscitated, the baby sustained, inter alia, anoxic brain damage. These facts, as reflected in the medical records or as testified to by the defendants, Dr. Wertheimer and Dr. Lumicao are essentially undisputed.
The plaintiff commenced this action against Jamaica Hospital medical Center, Dr. Wertheimer, Dr. Lumicao, Dr. JAIN, the Director of the Department of Neonatology for the injuries sustained as the result of their alleged medical malpractice in, inter alia, failing to properly monitor the infant plaintiff after birth. The defendants, Dr. JAIN and Dr. Wertheimer, now move for summary judgment dismissing the complaint so far as it is asserted against them.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient competent evidence to demonstrate the absence of any material issues of fact. (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853 [1985].) Failure to make such a showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. (Winegrad v. New York Univ. Med. Center, supra, 64 NY2d at 853). Once this showing has been made, however, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. (Zuckerman v. City of New York, 49 NY2d [*3]557, 562 [1980].)
Dr. Jain's motion, supported by his affidavit and deposition testimony, is predicated upon the claim that since he did not render any medical care or treatment personally to either the infant or the mother, there was no physician patient relationship between them and he cannot be liable for medical malpractice.
As the Director of the Department of Neonatology, however, and because Dr. Lumicao, an employee of Jamaica Hospital in the Department of Neonatology, examined the infant at birth, Dr. Jain can be held liable where, as here, his liability is predicated, in part, upon his failure as the Director to provide proper supervision of the members of the department and/or upon his failure to establish and enforce appropriate rules, regulations and procedures for the medical conduct of the members of the department regarding, inter alia, the care, treatment and monitoring of newborn infants. (See, Latiff by Latiff v. Wyckoff Heights Hosp., 144 AD2d 650 [1988] citing Maxwell v. Cole, 126 Misc 2d 597 [1984]; Ellis v. Brookdale Hosp. Med. Center, 122 AD2d 19 [1986]; Wilson v. McCarthy, 57 AD2d 617 [1977].)
In this regard, the only evidence submitted by Dr. Jain is his conclusory self serving affidavit and deposition testimony stating that his duties and responsibilities as the Director of the Department of Neonatology was to "make sure that the Neonatology intensive care unit runs efficiently and according to the standard of care" and he does not supervise the board certified doctors working in the department. What Dr. Jain's evidence lacks is any factual detail as to the applicable standard of care, how he implements or enforces it, what he does to make sure the department runs efficiently. Although a hospital is generally responsible for the supervision of its employees and for establishing rules regulations and protocols, that responsibility may be delegated. (See, Latiff by Latiff v. Wyckoff Heights Hosp, supra; Maxwell v. Cole, supra.) In this case, Dr. Lumicao testified at her deposition that there were rules and regulation applicable to the Neonatal Department and that Dr. Jain set the rules, however, the rules were never provided. Under the circumstances Dr. Jain has failed to establish, prima facie, his entitlement to summary judgment. Questions of fact exist as to whether he was negligent in the performance of his duties as the Director of the Department of Neonatology which caused or contributed to the injury to the infant plaintiff.(See, Winegrad, 64 NY2d at 853 [1985].)
With respect to Dr. Wertheimer's motion, it too is denied. The defendant, Dr. Wertheimer, submitted, inter alia, the [*4]affidavit of his expert, Dr. Joel Cooper asserting that not depart from good and accepted medical care. Dr. Cooper maintains that acted appropriately in making sure that a neonatologist was present for the delivery in view of the history of the mother and the infant. Dr. Cooper further asserts that it is the custom and practice in the obstetrical/pediatric community for a pediatrician or pediatric nurse practitioner to be present in the delivery room to assume the care and treatment of the newborn. It is further asserted that once Dr. Lumicao, the neonatologist, entered the picture, Dr. Wertheimer had no further duty of care to the infant as was responsible for the continued care of the mother during the final stages of labor. Where, as here, the movants have established their entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action. Alvarez v. Prospect Hosp., supra; Winegrad v. New York Univ. Med. Ctr., supra; Zukerman v. City of New York, 49 NY2d 557, 562 [1980].)
In opposition, the plaintiff submitted the affidavit of her expert doctor which is sufficient to raise a question of fact. The plaintiff's expert asserts that it is the duty of all of the medical personnel, Dr. Wertheimer, the nurses in the delivery room, Dr. Lumicao, Dr. Jain and the neonatal nurse practitioner, to monitor the newborn. The expert further asserts that the total lack of any entries in the medical records for 40 minutes after the delivery of the baby, during which time the baby went from a condition described by the APGAR score as 9 at five minutes of life to being completely without a pulse, apneac, flaccid and cyanotic amply demonstrates the lack of even minimal monitoring of the baby. In addition, the expert asserts that once Dr. Lumicao and the neonatal nurse practitioner left the delivery room, Dr. Wertheimer was the senior person and the only doctor in the room. It was his duty to assure that the infant was properly monitored. In view of the conflicting expert affidavits, summary judgment must be denied.
Dated: April 25, 2006
D# 25
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J.S.C.
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