Miyazaki-English v Medical & Health Research Assoc. of N.Y. City, Inc.

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Miyazaki-English v Medical & Health Research Assoc. of N.Y. City, Inc. 2012 NY Slip Op 30191(U) January 26, 2012 Supreme Court, New York County Docket Number: 113965/06 Judge: Joan B. Lobis Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] UEDON 112712012 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY b17LS PRESENT: PART Justioo . -v- / The followlng pspsrr, numbrrmd 1 to !oFwero mad on thls motlon tolfor Notlom of Motlonl Order to Show Caws Anrwmdng Affldsvlts - Exhlbitr Rsplylng Affldrvb - Affldavltr - Exhlbh .,. . Crosa-Motion: A .%mhh m I I 0 Yes L &No Upon the foregoing papen, It Ir odored thrt t h motion h * FILED THIS MOTION IS DECIDED-IN ACCORDANCE WITH ,THE ACCOMPANYING MEMORAflDUM DECISION i JAN 27 3 Q: i 2 E P . Jatsd: NEW YORK COUNTY CLERK'S OFFICE , m 2G. * / 2 T . JQAN~B. LOBIS :heck one: FINAL DISPOSITION J.S. C. NON-FINAL DISPOSITION 3heck if appropriate: 0 DO MOT POST REFERENCE 0 SUBMIT'ORDERI JUDG. 0 SETTLE ORDER/ JUDG. [* 2] SUPIUIME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY: IAS PART 6 - - - l - - . - r - - - . l - - - - - I I I y I I I X YOKO MIYAZAKI-ENGLISH, the mother and as natural guardian of SUIKA MIYAZAKl ENGLISH, an infant, and YOKO MIYAZAKI-ENGLISH, individually, Index No. 1 1396906 Plaintiff, peciri-m -against- MEDICAL AND HEALTH RESEARCH ASSOCIATION OF NEW YORK CITY,I NC., d/b/a MIC-WOMEN S HEALTH SERVICES,ANDREA SONENBERG, COLUMBIA UNIVERSITY MEDICAL CENTER, COLUMBIA UNIVERSITY COLLEGE OF PHYSICIANS & SURGEONS,COLUMBIA UNIVERSITY, JACK E. MAIDMAN, M.D., LESLIE M.JACOBSON, M.D., JOHN F.J. CLARK, IlI, M.D., KIM K.CARAWAY, C.N.M, AND LESLIE F. LACEY, R.N., Defendants C---Cllrlcr-----1--Il---------ll--- orda FILED JAN 27 2092 NEW YORK OUNV CLERK S OFFICE X JOAN B. LOBIS, J.S.C.: Motion Squence Numbers 003 and 004 are hereby consolidated for disposition. In Motion Squcnce Number 003, defendant John F. J. C a k III, M.D., moves, by order to show cause, lr, for an order granting him summary judgment and dismissing the complaint against him pursuant to C.P.L.R. Rule 3212. In Motion Sequence Number004,defendants Andrea Sonenberg,C.N.M. s/h/a Andrea Sonenberg; The Trusteesof Columbia University in the Ct of New York skla Columbia iy Udvcnity College of Physicians and Surgeons and Columbia University ( Columbia ); Jack E. Msidman, M,D.; Leslie M. Jacobson, M.D,; and Kim K. Caraway, C.N.M.,seek a hearing in accordance with Fwe v. n U , 293 F. 1013 (1923), on the issue of whether plaintiffs experts testimony and/or theories should be precluded at trial or, in the alternative, seek an order prccluding plaintiff s from offering expert proof at the time of trial that Ms.MiyazakI-English developed preeclampsiaduring her pregnancy; that preeclampsia was a substantial factor i causing n [* 3] igury to the infant-plaintiff Suika Miyazaki-English; that the Infant-plaintiff davelopcd intrauterine growth restriction ("IUGR") during the pregnancy; and that IUOR wm a substantial factor in causing iqjjuru to the infant-plaintiff. Plaintiffs allege that defendantsmismamged Ms.Miyazaki-English's obstetricalc m , thereby causing the infant-plaintiff to be disabled. Ms.Miyazaki-English received care dun'ng her pregnancy at a womtn'a hcalth clinic, co-defendant Medical and Health Research Association of - New York City, Inc. d/b/a M[C Women's Health Scrvices ("MIC"). D r n the pregnancy, Ms. uig M i y d - E n g l i s h was primarily seen by certified nurse-midwife ("CNM') Andrea Sonenberg, an employee ofColumbia performing nurse-midwifery services at MIC. CNM Sonenbergtestified that CNMs handle "normal" patients, or uncomplicatcd pregnancies. The pregnancy was Ms,MiyazakiEnglish's flrst. On February 20, 2004, Ms. Miyazaki-English saw CNM Sonenberg for her first prenatal visit, at which it w89 determined that she w89 at five weeks gestation and it was estimated that her due date was October 22,2004. At that first visit, It w s also detcrmincd that Ms. M y z k a iaai English had a urinary tract infection fkom E. coli, and she WBSmated with antibiotics, which clcarad the infection. Ms.Miyazaki-English hadan ultrasowdon M r h 3,2004, which was consistent with ac seven weeks gestation. For all intents and purposes, Ms.Miyazaki-English was having a normal pregnancy, and she s w CNM Sonenberg approximately every four weeks from March 5,2004 a through June 25, 2004. She also had an ultrasound on June 7, 2004, which indicated that the pregnancy was at approximately 20 weeks 4 days gestation, and that the estimated fetal weight was in the seventy-first (715t) percentile. Based on an ultrasound measurement, the average estimated gestational age WEIS 21 weeks, 1 day, plus or minw 10 days. -2- [* 4] CNM Sonenberg and D .Clark testified at their examinations before trial ( EBT ) r that pursuant to Columbia s protocols, which require that patients sce aphysician at least once during their pregnancies, Ms.Miyazaki-English wfis scheduled for one appointment with D .C a k during r lr her pregnancy. Dr. C a k w s an attending physician at Columbia and saw patients at MIC on a partlr a time basis; he did not supervise thc CNMs. The prenatal care rendered at MIC was such that physicians provided care to hlgh-risk clink patienu or rafemd them to Columbia s high risk clinic, and CNMs providtd care to patients with uncompllcated pregnancies. D .C a k saw Ms.Miyazakir lr r English on July 21, 2004, at approximately 27 weeks gcstation. D .Clark determined that the pregnancy was proceeding normally and cleared Ms.Miyazaki-English for continued management of her pregnancy by a CNM. He referred hcr for a glucose tolerance test, the resulte of which were normal. This was the only date that D .C a k saw Ms.Miyazaki-English. r lr Thereafter, Ms.Miyazaki-Englishsaw CNM Sonenberg on August 6 and August 20, 2004. The size of the fetus was slightly less than date on August 6, but at the followlng visit on August 20, there was two centimeters of growth and weight gain, CNM Sonenberg felt the growth was adquatt for two weeks, although she testified that the fetal size wm still smaller than she would expect for that period of gestation. Ms.Mfyazaki-English saw another CNM, M r Sufiin, for her ay appointment on September 3,2004, presumably bccausc CNM Sonenbtrg we9 unavailable. CNM Sufrin found the fetal size equal to date, at 32 weeks gestatation. However, when Ms.Miyazaki- English returned to CNM Sonenberg two weeks later on Septombcr 17, CNM Sonenberg a8ain measured the size as lass than date, and referred Ms.Miyazaki-English for a second ultrasound, which took place on September 23,2004. Thc results f o the second ultrasound indicatcd that the rm -3- [* 5] fetus size was in thc twcnty-sixth (26)percentile. CNM Sonenberg testified that the second ultrasound showed that the size of the fetus wm slightly less than gestationalage but wt adequate ih growth, and that the results did not cause her to treat Ms.Miyazaki-English differently. At Ms.Miyazaki-English's next appointment on October 1,2004, CNM Sonenbcrg noted positive fetal movement, and no regular contractions, ruptured membranes, or bleeding. She noted the fundal height, heart rate, and amniotic fluid volume were w t i normal limits. Her ihn impression was a term intrauterine pregnancy, with positive fetal growth. At this visit, CNM Sonenbergreviewed labor and rupture management with M .Miyazaki-English, such as when to go s to the hospital, what to do if her water broke, and daily fatal movement counts. Ms.Miyazaki- English had a similar appointment on October 8,2004. On October 15,2004, CNM Sonenberg again noted positive fetal movement, and no contractions, nrptured membranes, or bleeding. She thought tho fatua was possibly in the bmch position. CNM Sonenberg noted that the fetal heart rate was hi@, f b m 120 to the 130'5, but she testified that it w s "good." She noted that the wight gain was three pounds in one week, and that a Ms.M i y d - E n g l i s h had a 2+ glucose reading, but that she had recently eaten cereal and half of a bagel, which could have accounted for tho high glucose Icvul. Ms.Miyszaki-English was also volding trace protein in her urine. Her blood pressure was 11W70,and CNM Sonenberg testified that the diastolic pressure was slightly above baseline, but not significantly, and that she still felt it wm within the normal range. Ms.Miyazaki-English reported occasional mild headaches that were rclicvcd quickly. CNM Sonenberg also noted trace pedal adema. CNM Sonenberg refcmd Ms. [* 6] Miyazaki-English for an ultrasound with rugard to the possible braech and ordered a random glucose screening. She further advised Ma.Miyazaki-English to dccrcase hur carbohydrates and calories; 80 to the haspital for headaches, visual changes, labor, or rupture of the membranes; and return in one week for her next appointment. Although the medical notes indicate that an ultrasound was scheduled for October 21,2004, it i unclear if this was indeed scheduled andlor communicated to s Ms.Miyazaki-English. Ragdlcss, she did not have an ultrasound on October 21. Ms.Miyazaki-English began experiencingcontractions on thc evening of October 2 1, 2004. She and her husband confirmed, by telephone, that they should continue to time the contraction intends. Shc experienced brown staining in her underwear in the w l y morning of October 22,2004, so she and her husband went to the labor and delivery unit at the Allen Pavilion (a facility under the Columbia umbrclla). Ms.Miyazaki-English presented to the Allen Pavilion between 6:30 and 7:OO am., and at approximately 7:43 a m ,an external fetal monkor was applied. .. The fetal monitor results indicated a troubling fetal heart rate, and the attending obstetrician Farris Fahmy, M.D.. called immediately. Dr. Fahmy performed an emergency ccsarcan section under was general anesthesia and delivered the infant-plaintiff at approximately 8:04 a,m.. The infant-plaintiff weighed 6 pounds, 5 ounces, which is in the tenth (10th) porcentile, and was 50 centimeters long, at the fiftieth (50th) percentile. She had an initial Apgar score of 1 with no effective heartbeat. Resuscitation was commenced and successfillyrestored oxygen to the infant-plaintiff, but the early lack of oxygen caused iqiury to the infant-plaintiff. Her Apgar scores were eventually 5,6, and 8. The infant-plaintiff was born In critical condition wt a hypoxic brain injury and seizures. Today, ih her continuing disabilities include cerebral palsy, brain damage, and dtvalopmental delays. -5- [* 7] Motion Sequence 003 Plaintiffs contend that defendants failed to appreciate the signs and signals that the fetus w s in distrcst4ncluding decreased fetal growth rate and intrauterine growth restriction a ( IUOR ), prceclampsia, gestational diabetes, placental insumciency, and dccreascd amniotic fluids-hereby allowing Ms.Miyazaki-English s pregnancy to progress without the propor medical interventions. They allege that had defendants intervened appropriately, the infant-plaintiff would not have been born with brain damage. Plaintiffs essential allegation against Dr. C a k is that he lr deperted f o accepted standards of medical care and treatment in his overall failwe to appropriately rm follow and bc aware of tha condition of Ms.Miyezaki-English and her fetus. Plaintiffs dlcge, & &, that Dr. C a k failed lr to take Ms. Miyazaki-English s complete history and record her complaints; failed to recomrirend appropriate follow-up care and monitoring; and failed to detect, monitor, andlor appreciate the fetus decreasing Interval growth velocity and other signs that the fetus was in distress. D . Clark r now seeks summary judgment. It i a cornerstonc of New York s jurisprudence that the proponent of a motion for summary judgment must demonstratc that there are no material issues of fact in dispute, and that m e or she] i entitled to judgment as a matter of law. s Qstrov v. Gilitu -v.w -A.D.3d -, Y 2012 N,Y. Op, 22, **9-10 (1st Dep t January 3,2012) Slip m a 64 N.Y.2d 851, 853 (1985). To be entitled to summary judgment,B defendant in a medical malpractice action m s damonstrate ?he absence of ut any deviation or departure from accepted medical practice, or that any such departure was not a proximate cause of the injury or damage alloged. -6- v. St. B - 87 A.D.3d 238,246 [* 8] (1st Dep't 201 1). Once a defendant meeb this burden, it i incumbent upon the plaintiff to proffer s evidence sufficient to establish the existence of a material issue of fact requiring a trial. Qstro_\r, *+10, Alvarez v. Pr-t at HQSD., 68 N.Y.2d 320,324(1 986). In m d c l malpractice actions, eia expert medical testimony i the & s for demonstrating either the absence or presence of material issues of fact permining to departure from accepted medical practice or proximate cause. Dr. Clark contends that on the sole occasion that he saw Ms.Miyazaki-English, she exhibited all sips of a normal pregnancy and there wcrc no signs of IUUR or a decrease in the interval growth rate; a decrease in utero-placental perfusion or amniotic fluid levels; or placental insufficiency. H r blood pressure wm normal, and there w r no signs of preeclampsia or any other e ee significant maternal morbidity. D .C a k thus argm that he acted appropriately in recommending r lr continued care of Ms.Miyazaki-English's pregnancy by a CNM and hc appropriately ordered a glucose challenge test for diabetes. In support of his motion, D .Clark offars an expert affirmation r h m Lawrence G. Mcndelowitz, M.D., affltms that he is licensed to practice medicine in New who York State and board certified in obstetrics and gynecology. Dr. Mendelowitz states that he has reviewed the bill of particulars, medical records, and EBT transcripts, and upon his review of the materials, he states that D .C a k acted within good and accepted standards of medical practice and r lr that nothing Dr. C a k did, or did not do, proximately c a d any of the infmt-plaintiff s allegcd lr damages. D .Mendelowitz states that when D .C a k evaluated Ms.Miyazaki-English on July 21, r r lr 2004, she had a low-riskprugnancy proceeding without complications. He states that the June 7, 2004 sonogram showed no placental insufllcicncy, no decreased placental perfusion, and no structural abnormalities. The fetal mcasuttments warc consistent with gestational age. There were -7- [* 9] no indications of IUOR, a decrcast In rate of growth, or anything that would have qualifiad the pregnancy as high risk. Dr. Mendelowk states that D .C a k s conclusion that the pregnancy could r lr' be monitored by a CNM wm well founded, entirely acceptable, and within the bounds of good obstetrical practice. D .Mendelowitz opines, within a reasonable degree of medical certainty, that r D .Clark did not deviate from good and accepted practice, that he used sound medical judgment in r his assessment and clinical impression of plaintiff, and that there is nothing in the medical records that indicates that D .C a k was in any way negligent in his care and treatment of plaintiff. r lr In opposition, plaintiffs argue that D .Caks motion doea not address the issue that r lr' D . lr applies to him. They maintain that " r C a k was one of. , two physicians . . , supervising a flawed system of care. [CNS Soncnbcrg] should not have ken managing any of the IUGR, [preeclampsia], breech or [gestational diabatcs] issues." Plaintiffs' expert (name redacted)' sets forth that hdshc is a physician licensed to practice in California and board certified in obstetrics and gynecology,and maternal-fetal medicine. The expert maintains that each of the defendants departed from accepted standards of care in failing to propurly manage Ms.Miyazaki-English's pregnancy, which w s complicated by unidentified and mismanaged preeclampsia-related IUOR. The expert a agrees that the June 7,2004 sonogram supported normal time. The expert does not take issue with growth related to gestational age at that the care that D .C a k provided on July 21,2004. She r lr docs believe that once the second sonogram WBS performedon September 23,2004, there were signs ' Plaintiffs' expert's statement ia not notarized,though 89 a physician not licensed to practice in New York, s/hc is not entitled to submit an ammation but must provide a notarizcd affidavit; however, as this issue wm not raised by defendants, the court will consider the merits of the statement. [* 10] that the pregnancy was no longer normal and that the fetus was in distms. Thus,the expert believes that there should have been a system in place to c m l e a rational and coordinated treatment plan going forward, which the expert believes did not occur. The expert contends that Dr,Clark and codefendant Leslie M. Jacobson, M.D. other attending physician providing part-timc care at MIC), (the whowere assigned to supervise and be responsible for this obstetrical mother and the fetal patient, allowed a flawed system to exist thcrcby departing from good and accepted practice. Plaintiffs expert maintains that Drs. C a k and Jacobson participated In a system destined to fail to identify lr clinical circumstmesthat required an attending obstetrician to be awara of and to become involved i the continued management of the pregnancy. Participating in and allowing a flawed system n arc the only departures that plaintiffs expert attributes to Dr. Clark. D .Clark has made a a r showhg that he is entitled to summary judgment on the grounds that there was no departure in the care hc undertook to provide to Ms. MiyazakiEnglish. Plaintiffs have not ralscd an issue of fact in this regard. There is no dispute that he s w Ma. a Miyazaki-English only once, at which point everything appearad normal. Dr. Clark s duty to Ms. Miyazaki-English wm to confirm that her can, at that point, could be appropriately followed by a CNM. He did so, and she wtls then followed by CNM Soncnberg. Even assuming,for the purposes of the motion, that the other defendants departed from the standard of care, plaintiffs have neither shown nor alleged that D .C a k had any supervision or control ovor the other defendants or the r lr lr policies in place at Columbia or MIC. The allegation that Dr. C a k participated in a flawed system is far too vague and speculative to raise an issue of fact suffcicnt to rebut Dr. C a k sgdma lr & f showing that his cere and treatment did not depart from the standard of care. Accordingly, summary Judgment in Dr. Clark s favor is warranted. -9- [* 11] Motion Sequence 004 Pursuant to C.P,L,R. 4 3101(d), on or about August 5, 2009, and April 5, 2010, plaintiffs served an expert witness disclosure and supplemental expert witness response, respectively. In the supplemental disclosure, plaintiffs identified two expert witnesses and set forth the substance and basis of their opinions. The experts arc expected to testi4 that physicians must identify ut problems and potential problems, and m s create plans to address problems and potential problems; that issues of uncertainty should bc resolved in favor of protecting thc patient ; and that failing to do so is a departure from the standard of care; that criteria for diagnosing preeclampsia are purposefully vague and not without limitations, and that the clinical spectrum of preeclampsia can manifest in varyfng ways; that the discrepancy in fetal size to gestational age, when the June 2004 sonogram is compared to the September 2004 sonogram,-wassignificant but ignored by defendants; that onca the September 2004 sonogram w s taken, a physician should have been directly involved a in Ms.Miyazaki-English s care and a plan should have bean implemented to coordinate har c ;that m all of the available information indicated that the fetus was not growing normally, and that had dafendanb resolved this issue in favor ofprotecting the fetal patient by assuming IUOR waspresmt, the brain damage that occurred could have bccn prevented; that a biophysical profile ( BPP ) (an ultrasound plus a nonstrcss test) should have been performed to get a more accurate picture of the condition of the fetus;that once Ms. Miyazaki-English s diastolic blood pressum rose more than 15 mm Hg,defendants should have exercised caution and performed a BPP;that on October IS, 2004, defendants failed to attribute significance to Ms. Miyd-English s elevated glucose reading, increased diastolic pressure, thrce pound weight gain in one week, tract protein in her urine, edema, and reports of headaches; and that these symptoms reflected that the ongoing pregnancy was [* 12] unmasking what could bc [preeclampsia] . . .[ao] the working diagnosis should have been IUGR. Esscntially, the opinion testimonyofplaintiffs experts is that defendants failure to idantifyand treat preeclampsia and IUGR caused the infant-plaintiff s hypoxic-ischemic brain iqiury at birth. Now,CNM Sonenberg, Columbia, Dr. Maidman, Dr. Jacobson, and CNM Caraway (hereinafter the Moving Defendants ) seek to subject plaintiffs experts to B hearing to test the admissibility of their theories, or to preclude plaintiffs from offering proof that preeclampsia or IUOR was ever present or w a ~ substantial factor in injuring the infant-plaintiff, The Moving a Defendants set forth that Ms.Miyazaki-English never had blood pressures over 140 systolic or 90 diastolic, and never had protcinda, two criteria for identifying preeclampsia. Thus, the Moving Defendants maintain that any opinion by plaintiffs experts that Ms. Miyazaki-English s blood pressure was indicative of developing preeclampsia is not gcncdly accepted in the aciontlflc community and should be precluded. Further,the MovinB Dafendants maintain that the infantplaintiff never met the diagnostic criteria for identifying IUOR since the estimated fetal weight was never less than or qual to the 10th percentile, and the abdominalcircumference was ncver less t a hn the 5th percentile, the criteria for IIJOR. Thay maintain that the fact that the infant-plaintiff was small for her gestational age and that her weight WBS in the 10th percentile at birth was consistent wt the mother s small stature and Japanese heritage. Accordingly, the Moving Defendants set forth ih that any opinion by plaintiffs experts that the Infant-plaintiff developed IUGR, or that IUQR was a substantial factor in causing the *auries alleged, is not ~enerally accepted in the scientific community and should be precluded. The Moving Defendants submit cxpertaffIcmationssupporting these contentions, and a practice bulletin f o January 2002 from the American College of rm -1 1- [* 13] Obstetricians and Oynccologists ( AC001 ) which defines gestational hypertension as a systolic blood pressure lcvcl of 140 mm Hg or a diastolic blood pressure level of 90 m m oppose a& Hg. Plaintiffs hearing and preclusion on the grounds that their experts expected testimony includes no novel theories. A hearing pursuant to Fwe v.-U 293 F. 1013 @.C. C r 1923), is used to i. determine whether an expert s methodologies in arriving at a conclusion are generally accepted by the relevant scientific community. u v. b, A.D.3d 887, 891-92 (2d Dep t 2010). s 70 [W/here. . . the challenge i to the reliability of the expert s conclusions,not whether the expert s s methodologies or deductions are based upon principles that are sufficiently established to have gained general acceptance EU rcliablt, there is no bssis For a Frye hearing. IQ.at 892. H r ,the ee Moving Defendants take issue with plaintiffs cxperh proposed articulation of the standard o f m , not their methodoloey or causation theories. Thc Moving Defendants experts argue that plaintiffs did not have preeclampsia or KJGR and that they exhibited no signs or symptoms of these conditions. Plaintiffs have disclosed that their experts shall opine othewise, that is, that plaintiffs indccd had preeclampsia and IUGR and exhibited signs and symptoms thereof. Plaintiffs experts shall further opine that the guidelines for criteria for preeclampsia and IUGR are not set in stone and are not the only criteria used for idcntimng the need for further examination or intervention. Plaintiffs proposedexpert testimony i supported by reading the ACOG guidelines s b i t d by the s umte Moving Defendants, which are not so unaquivocal as the Moving Defendants suggest, even including a statement that the guidelines should not be construed as dictating an exclusive course of treatment and that variations may be warranted based on the needs of an individual patient. -12- [* 14] Under the circumstances of this case, a hearing or preclusion is unwarranted on the grounds argued by the Moving Defendants. Accordingly, it is hereby ORDERED that John F. J. Clark, Ill, M.D.'s motion for summaryjudgment(Motion Scqucnca Number 003) is granted, and the complaint is dismissed against him in its entirety, and the clerk is directed to enter judgment accordingly; and it is further ORDERED that Motion Sequence Number 004 is denied in its entirety; and it is further ORDERED that the partics shall appear for their previously scheduled pre-trial conference on February 2 1,2012, at 9:30a.m. Dated: January& ,2012 -1 3-

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