Figueroa v Giffone

[*1] Figueroa v Giffone 2009 NY Slip Op 50180(U) [22 Misc 3d 1118(A)] Decided on February 5, 2009 Supreme Court, Richmond County McMahon, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 5, 2009
Supreme Court, Richmond County

Samuel Figueroa, AN INFANT, BY HIS PARENTS AND NATURAL GUARDIANS, SAMUEL FIGUEROA and NEREIDA FIGUEROA, and SAMUEL FIGUEROA and NEREIDA FIGUEROA, INDIVIDUALLY, Plaintiff(s),

against

Paul Giffone, as Executor of the Estate of ANTHONY FREDERICK GIFFONE, JR., ANTHONY FREDERICK GIFFONE, JR., M.D., P.C., and STATEN ISLAND UNIVERSITY HOSPITAL, Defendant(s).



100866/2005

Judith N. McMahon, J.

On or about March 7, 2005, the plaintiffs commenced this medical malpractice action against defendants Dr. Anthony Frederick Giffone [FN1] [hereinafter "Dr. Giffone"] and Staten Island University Hospital [hereinafter "SIUH"]. Plaintiff's contend that Dr. Giffone and SIUH, inter alia, failed to timely perform a cesarean section and failed to properly monitor plaintiff Nereida Figueroa's pregnancy while on Tegretol, resulting in the infant plaintiff, Samuel Figeroua, Jr., experiencing fetal distress. Issue was joined and discovery was complete in or about May 2008.

It is undisputed that, in 1986, the plaintiff Nereida Figueroa was diagnosed, by a nonparty physician, with a seizure disorder requiring treatment which resulted in a prescription of Tegretol to control the seizures. In December 1987, the plaintiff gave birth to her first child by cesarean section without incident. The plaintiff became pregnant again in 1994 and gave birth to the infant plaintiff Samuel Figueroa, Jr. in April 1995. Dr. Giffone, the plaintiff's private attending obstetrician/gynecologist, treated the plaintiff Nereida Figueroa during both pregnancies. While plaintiff Nereida Figueroa was pregnant with the infant plaintiff, Samuel Jr., she continued to take the Tegretol to treat her seizure disorder.

On or about April 27, 1995, the plaintiff Nereida presented to SIUH with complaints of abdominal cramps. Dr. Giffone admitted the plaintiff to the hospital and performed an examination, concluding that the plaintiff was in labor. Dr. Giffone and SIUH hospital staff continued to monitor the plaintiffs condition. During this time plaintiff contends there were several signs to conclude a cesarean section should have been performed earlier than was done, as the baby was experiencing fetal distress. Defendant's contend that the cesarean section was timely given the circumstances and symptoms experienced by the plaintiff. [*2]

On April 28, 1995, at approximately 6:39 a.m. Dr. Giffone determined a cesarean section was necessary and performed it at 9:58 a.m. resulting in the birth of infant plaintiff Samuel Figueroa, Jr. The infant plaintiff was noted as having slight tremors and a rapid respiration rate. Presently, the infant plaintiff suffers from ADHD, excessive muscular activity, and receives speech and occupational therapy in school.

At present, defendant Dr. Giffone is moving for summary judgment on the ground that he did not deviate from accepted medical standards and practice in the treatment that he rendered to the plaintiffs. SIUH is also moving for summary judgment on the ground that it cannot be held liable for the acts of private attending physicians and did not deviate from accepted medical standards in the care rendered to the plaintiffs. Further, plaintiff is moving to amend the bill of particulars, on the ground that a new expert has evaluated the infant plaintiff resulting in additional theories of liability.

It is well settled that a "proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant has satisfied this burden, "the burden shifts to the [opponent] to lay bare his or her proof and demonstrate the existence of a triable issue of fact" (Chance v. Felder, 33 AD3d 645, 645-646 [2d Dept 2006]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). In this regard, the court is enjoined to accept the evidence tendered by the opposing party as true, and "must deny the motion if there is even arguably any doubt as to the existence of a triable issue" (Fleming v. Graham, 34 AD3d 525 [2d Dept 2006] quoting Barker v. Briarcliff School Dist., 205 AD2d 652, 653 [2d Dept 1994] [internal quotation marks omitted]).

I.SIUH's Motion for Summary Judgment

"It is well settled that a hospital is not vicariously liable for the acts of a private attending physician . . . who is retained by a patient and is immune from liability where its employees follow the direction of the attending physician, unless that physician's orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders'" (Garson v. Beth Israel Medical Ctr., 41 AD3d 159, 159 [1st Dept. 2007]; Toth v. Bloshinsky, 39 AD3d 848, 850 [2d Dept. 2007]; Cerny v. Williams, 32 AD3d 881, 883 [2d Dept. 2006]; Welch v. Scheinfeld, 21 AD3d 802, 807 [1st Dept. 2005]).

Here, defendant SIUH has established its entitlement to summary judgment as a matter of law by submitting evidence that the plaintiffs were treated mainly by the their private attending physician and that the hospital employees did not contradict normal practice in their treatment of plaintiff (Chance v. Felder, 33 AD3d 645, 645-646 [2d Dept 2006]; Zuckerman v. City of New York, 49 NY2d 557 [1980]; Garson v. Beth Israel Medical Ctr., 41 AD3d 159, 159 [1st Dept. 2007]; Toth v. Bloshinsky, 39 AD3d 848, 850 [2d Dept. 2007]). In opposition, the plaintiffs have failed to raise a triable issue of fact precluding summary judgment. Plaintiffs' expert affirmation does not establish that SIUH staff deviated from normal practice in their treatment of the plaintiffs. As a result, summary judgment is granted dismissing all causes of action against the hospital, SIUH.

II.Dr. Giffone's Motion for Summary Judgment

The defendant Dr. Giffone has established his prima facie entitlement to summary judgment by adducing expert opinion that he did not deviate from good and accepted medical [*3]practice in his treatment rendered to the plaintiffs (see Alvarez v. Prospect Hosp., 68 NY2d 320, 325 [1986]). Specifically, Dr. Giffone provided the expert affirmation of Dr. Gary Mucciolo, who opined that the treatment rendered by Dr. Giffone was within the accepted medical standards. Dr. Mucciolo indicated that, inter alia, Dr. Giffone's decision to monitor the plaintiff's condition prior to performing the cesarean section was well within accepted medical standards.

However, in opposition, the plaintiff submitted the redacted medical affirmation of a New York licensed obstetrician/gynecologist who opined that Dr. Giffone deviated from accepted medical practice in, inter alia, failing to identify fetal distress through Nereida Figeruoa's abnormal labor pattern and fetal tachydcardia (Alvarez v. Prospect Hosp., 68 NY2d 322, 325 [1986]). Further, the doctor opined that Dr. Giffone should have discontinued the use of Pitocin at the first signs of fetal distress and performed the cesarean section no later than 4:00 a.m. Therefore, Dr. Giffone's motion for summary judgment is denied because medical malpractice actions where the parties offer conflicting expert opinions raises a credibility issue requiring a jury's resolution (see Dandrea v. Hertz, 23 AD3d 332 [2d Dept 2005]; Shields v. Baktidy, 11AD3d 671 [2d Dept 2004]; Barbuto v. Winthrop University Hosp., 305 AD3d 623 [2d Dept. 2003]).

III.Plaintiff's Wrongful Life Causes of Action

"[I]t is well settled that no cause of action may be maintained on behalf of an infant plaintiff for 'wrongful life,' i.e., that he or she would never have been born but for the negligence of the defendant" (Sample v. Levada, 8 AD3d 465, 467 [2d Dept., 2007]; Spano v Bertocci, 299 AD2d 335, 337 [2d Dept., 2002]; Alquijay v St. Luke's-Roosevelt Hosp. Ctr., 63 NY2d 978, 979,[1984]). As such, plaintiff's cause[s] of action that allege wrongful life are hereby dismissed.

IV.Plaintiff's Lack of Informed Consent Cause of Action"Public Health Law § 2805-d (1) defines lack of informed consent as the failure of the person providing the professional treatment . . . to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical, dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation'." (Manning v. Brookhaven Memorial Hosp. Med. Ctr., 11 AD3d 518, 520 [2d Dept., 2004]).

To recover for a lack of informed consent cause of action the plaintiff "must allege that the wrong complained of arose out of some affirmative violation of plaintiff's physical integrity" and further that "a reasonably prudent person in the plaintiff's position would not have undergone the treatment if he or she had been fully informed and that the lack of consent is a proximate cause of the injury or condition for which recovery is sought (Smith v. Fields, 268 AD2d 579, 580 [2d Dept., 2000]; Iazzetta v. Vicenzi, 200 AD2d 209, 213-214 [3d Dept., 1994]).

Here, the plaintiffs have alleged in the complaint that, inter alia, "the defendant failed to advise plaintiff Nereida Figueroa of the risks associated with taking Tegretol during pregnancy". Here, the defendant Dr. Giffone has successfully established his entitlement to summary judgment as a matter of law on the informed consent cause of action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept [*4]2003]). Specifically, the defendant Dr. Giffone has established that plaintiff, Nereida Figueroa was treated and prescribed Tegretol by a nonparty doctor for her seizure disorder and therefore, Dr. Giffone did not deviate from accepted medical standards in his treatment of plaintiff's pregnancy while on Tegretol. However, in opposition, the plaintiff has raised triable issues of fact that preclude summary judgment (Cortale v Educational Testing Serv., 251 AD2d 528, 531 [2d Dept 1998]). Specifically, the plaintiff established that Dr. Giffone, as the plaintiff's private attending obstetrician/gynecologist should have known of the risks associated with pregnancy while on Tegretol and advised plaintiff of those risks. Again, as a result, summary judgment is inappropriate.

V.Plaintiff's motion to Amend the Bill of Particulars

Generally, "leave to amend a bill of particulars is ordinarily freely given" (CPLR 3025[b]), however, "once discovery has been completed and the case has been certified as ready for trial, the party will not be permitted to amend the bill of particulars except upon a showing of special and extraordinary circumstances'" (Schreiber-Cross v. State of New York, __ AD3d ___, 2008 NY Slip Op 10152, 3 [2d Dept., 2008]). Additionally, "where there has been an unreasonable delay in seeking leave to amend, the plaintiff must establish a reasonable excuse for the delay, and submit an affidavit establishing the merits of the proposed amendment with respect to the new theories of liability" (Navarette v. Alexiades, 50 AD3d 869, 870-871 [2d Dept., 2008]). "In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom" (Navarette v. Alexiades, 50 AD3d 869, 870-871 [2d Dept., 2008]).

Here, this action was certified as ready for trial and the note of issue was filed in May 2008. Plaintiff seeks to amend the bill of particulars to add a new theory, namely "[i]n addition to the acts and omissions listed in the original and amended bills of particulars, defendant failed adequately to evaluate fetal heart monitor tracing, and failed to utilize fetal scalp blood monitoring". The plaintiff contends that based upon a new expert evaluation of the plaintiff these new theories must be added. This Court is not persuaded. The certification and note of issue were filed in this case over 10 months ago and further, this Court instructed the plaintiff that any amendments to the bill of particulars was to be done by a date certain or the opportunity to amend would be waived. The plaintiff was well aware that no amendments would be granted after such date. This Court has the inherent power to monitor its calender and determine disclosure schedules based upon the balance of counsels representations and the rights of litigants (Schreiber-Cross v. State of New York, __ AD3d ___, 2008 NY Slip Op 10152, 3 [2d Dept., 2008]; Zeitlin v. Greenberg, Margolis, Ziegler, Schwartz, Dratch, Fishman, Franzblau & Falkin, P.A., 262 AD2d 406, 406 [2d Dept., 1999]). Here, the plaintiff's motion seeking amend the bill of particulars on the eve of trial and in direct contradiction to this Courts order to do so within the prescribed time period requires denial of the motion.

Accordingly, it is

ORDERED that the defendant Dr. Anthony Frederick Giffone's motion for summary judgment is hereby denied in part, and granted in part, and it is further

ORDERED that the defendant Dr. Anthony Frederick Giffone's motion for summary judgment is granted on the cause of action alleging wrongful life, and it is further [*5]

ORDERED that the defendant Dr. Anthony Frederick Giffone's motion for summary judgment is denied on all other causes of action, and it is further

ORDERED that the defendant's Staten Island University Hospital's motion for summary judgment is hereby granted, and it is further

ORDERED that the plaintiff's complaint is dismissed as against Staten Island University Hospital ONLY, and it is further

ORDERED that plaintiff's motion to amend his bill of particulars is denied, and it is further

ORDERED that the Clerk enter Judgment Accordingly.

THIS IS THE DECISION AND ORDER OF THE COURT.

Dated:February 5, 2009E N T E R,

______________________________

Hon. Judith N. McMahon

Justice of the Supreme Court Footnotes

Footnote 1:Dr. Anthony Frederick Giffone passed away in January 2007, requiring the appointment of Paul Giffone, his son, as executor in October 2007.