Fox v Joseph Xerri, M.D. PLLC

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Fox v Joseph Xerri, M.D. PLLC 2012 NY Slip Op 32343(U) September 4, 2012 Supreme Court, Suffolk County Docket Number: 08-9867 Judge: Thomas F. Whelan 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] SIlORT '()I{,\j INDEX No OI,DER C01."YSUPREME IAS. 08-9867 COURT - STATE OF NEW YORK PART 33 - SUFFOLK COUNTY PRESENT: BOIl THOMAS F. WHELAN Justice of the Supreme Court MOTION DATE 4-9-12 ADJ. DATE 6-1-12 Mot. Seq Ii 002 - MG ---------------------------------------------------------------x VICTORIA FOX, an infant by her mother and natural guardJaJ1, LINDA FOX, Plamtiff, DAVIS & FERBER, LLP Attorney for Plaintiff 1345 Motor Parkway, SUlte 201 Islandia, New York 11749 MARTIN CLEARWATER & BELL LLP Attorney for Defendant Joseph Xerri, PLLC 220 East 42nd Street New York, New York 10017 - aga111sr - JOSEPH XERRl, M D PLLC and DAVID S. FRENCH, M.D., Defendants. ERIC T. SCHNEIDERMAN ATTORNEY GENERAL OF THE STATE OF NEW YORK by: Marcie K. Glasser, Assistant District Attomey Attorney for Defendant David S. French, M.D. 120 Broadway New York, New York 10271 ---------------------------------------------------------------X Upon the following papers numbered 1 to ~ read on this motion for sumnwry judgment; Notice of Motion! Order to Slww Cause and supporting papers 1 - 11 , NOliee of Cross Motion and supporting p<lpers _; Answc:ring Atlidavils and supporting papel·' 12 - 14 ,Replying Affidavits and SUpporllllg papers 15 - 16 ; Other _, ( ¢.lid .tliet I,caline. eutliI.~cI ill "$ltppm"t",t1,d opposed t(l the ,lIoticm) il is, ORDERED that this motion by defendant David S. French, M.D. for an order pursLlant to CPLR 32]2 grantmg summary judgment 111llS favor dismiss1I1gthe complaint as agamst htm is granted. I "l'111S an action to recover damages for lIljurics allegedly sustained by the infant plaintiff as a is result of the alleged negligent medical care rendered by plaintiJrs treating obstetrician, defendant Joseph Xern, M.D., and a first year reSident at Stony Brook University Hospital (Stony Brook Hospital), defendant DaVId S. French, M.D., prior to and during dehvery. The infant plaintiffwus born premature at 25 weeks on October 22, I <.)98 and plaintiff \vas ultimately dtagnosed with chonoaml1lonitis, PlaintIff [* 2] Fox \' Xcrri Index No. US-n(i7 Page No.2 moth,::r had beGn referred to Stony Brook Hospital on October 19, 1998 lallo\ving complalllts of cral1lpl11g and \vas seen by Dr French, who examllled plainti ITand discharged her that sallle day. Defendant Dr. French now moves for surnmarYJudgment disinisslllg the complalllt CIS against hun en the ground that he was a first year medical reSident during the one time that he exammed plmntdT and that he did not exercise any independent I11ccllcaljudgment. In support of his motion, Dr. French submits, among other things, the complall1t and his answer, plal11tJil's bdl of particulars, his deposition transcript and the deposlLion transcnpt of Dr XerrJ, the Stony Brook Hospital records Jar pbintiJTs October 19, 1908 prenatal viSIt, and the affinnation ol'his expert, I\ilare Engelbert, M.D. In opposition to the motIon, plallltil'fcontencIs that the motion must be denied on the ground that there is a dlSputc between the parties as to what occurred dunng Dr. French's CXamll1atlon of plaint in: Inc1u(llng whether plal11tiJ'f was cxpcncneing vaginal bleeding. In additlon, plmnti 1'1' contends that there IS all Inference that Dr French dId not accurately document his CXal11ll1atlOll. PlaintIff ['urther contends that Inasllluch as the affidavit of Dr. French's expert IS based on the premise that there was no vaginal bleedi.ng, It IS J1awcd and should not be conSIdered. She argues that Issues of fact exist as to the propriety or Dr. French's treatment of plaintl fCwhlcil must be determllled by a jury. Plaintl ff submIts a copy l)f11er depOSitiOn transcript. ]11 reply, Dr. French urgues that plallltlff's oppositIon IS ll1surricj(:~nt ll1asl1l11chas she has Caded to subm:t an expert uf!irmation or affidavit of a physic13n with a specialty 111 obstetriCs or WIth knowledge of the standard of care of an obstctncian demonstrating that there was a departure from the standard of care of Dr French. It is well settled that the party moving for summary Judgment must make a prima faCIe Showlllg of entitlement to j udgmel1t as a matter of law, offering sufficient evidence to demonstrate the absence or any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986J; ZUclwr1l1all v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980J). The hlllure 10 make such a prima 1~lcieshowing requIres the del1lal of the motion regardless of the sufficiency orthe opposing paper:; (see Willegrad I' New York Ulliv. Med. 01'.,64 NY2d 851,4::;7 NYS2d 316[1985]). "Once this shOWing has been made, however, the burden shins to the party opposIng Ihe motlon lar summary judgrllent to produce evidentlary proo f In admiSSIble form sufficient 10 establish the CXlstence of material issues of l~lCt\vhich requIre a tna! of tile action" (Alvarez v Prospect Hosp., 68 NY2d at 324, 508 NYS2.d 923, citing to Zuckerman v GO' of New York, 49 NY2d at 562, 427 NYS2d 595) The req uisiLC clements 0 I'proo r In a medical m:llpractlce action are a deViation or departure Jh)1n accepted cOllllllunity standards of medical pr:lCtlce, and evidence that slich deViation or departure was a pro:\lln:\ll' C<lLlSC or Injury or darn:\gc (see Castro I' ,!Vel!'York City Health & !Imps. Corp., 74 AD]d IOO.'l, ()U3 NYS2d IS.? [2d Depl 2010]; Def/tsch I' C/WglllSsi{fll, 71 ADJd 718, 8% NYS2d 431 I)d DcpL ::01 OJ, Geffner l' North Shore Univ. Hos'P., 57 AD3d 839, 871 NYS2d 617 r2d Dl'pt 200S]; see ii/SO Lau l' JVal1, 93 AD3d 763, 940 NYS2d 662 [2d Depl 2012]). On a motlon for summary Judgment disnWisll1g thc cornplalllt in a mcdicallllaipracticc action, a defendant must make a prima 1i.ICIC showlIlg tl1:11 there \V,ISno departure from good and accepted medIcal practice, or that ,illY depdrture was 110tthe proxlt'twk calise oCthe :lilcged llljunes (set? Salvia I'St. Catherine ofSielll1(l /~1ed.etr., 84 AD3d IOS3. [* 3] Fox \" Xern Index No 08-')8()7 Page No 3 913 t'JYS2d 8SCJ[2d Dept 2011J; Ahmed JI New fork Ci(v Heultll & Hosps. Corp., 84 AD3d 709,922 NYS:!d 20:2l2d Dept2011J; Stukas JlStreiter, 83 AD3d 18, 918 NYS2d 17() [2d Dept2Ull]). Where a defendant physician makes a prtma facie showlllg that there was no depal1ure Crom good and accepted medical practIce, as wel! as an independent shOWing that any departure that may have occulTed was not (l proxi:nate cause ofpl,-untifTs Illjurics, the burden then shins to piaintiffto rebut the phYSICian's ShC)\Vlllg by raising a tnable issuc of fact as to both the departure clement and the causation clement (see S'tukas v Streiter, supra; Swezey v MOlltaglle Rehab & Puil/ Mgt., 59 AD3d 431, 872 NYS2d 199 [2d Dept 2009], Myers v Ferrara, 56 ,\D3d 78, 864 NYS2d 5 I 7 [2d Dept 2(){)8J). General allegations l11atare conclusory and unsupported by COITIpetent eVidence lending to establlsh the essentHll clements or meJlcalmalpractice arc insutIicient to defeat a Jefcndant's motion for summary Judgment (see S'aI1,ia v St. Catherine ofSiel1na Med. Or., supra, Ahmed v New York City [-fealth & I:fm'[Js. Corp., slIpra). A I"esident who assists a doctor independent mcdlcal judgment, cannot did not so grc,ltly deViate from normal Intervene (Soto 1) Alldaz, 8 AD3d 470, dUring a medical procedure, and who docs not eXC1"CISC any be held liable for malpractice so long as thc doctor's directions practice that the resIdent should be held liable for Calling to 779 NYS2d 104 [2e1Dept 2004]). The deposition testimony of Dr. French from November 22, 201 0 reveals that at the time of thiS mcid(':nt he \vas particIpating III the first year of a three-year family medicll1e progTam at Stony I3rook Hospital perfonmng ,I rotation in obstetncs. Dr. French testified thm he had supervisors, who would have been 013-CiYN upper level residents or OB-GYN '"attcndings," and that one supervisor was Dr. Xerri. In addition, Dr. French testified that he only l!1teracted wllh plamllffon October 19,1998 and on one occasIOn alter delivery when she yelled at him to the effect that the delivery was his rault The records for said date Il1dicate that plaintiff was approxImately 24 weeks pregnant anJ that the infant plainti rr's estimated delivery date \vas February 1998, that the chief complaint and reason for admiSSIon was contractions and crampll1g. Dr. French read his assessment whieh 1l1cludecl plaintiffs complaints oC cramp1l1g lastlllg about 15 seconds, and her beberthat she lost her mucus plug, whIch keeps the cervix sterile and prevents lI1feetion, and notes that earlier in the morning plaintiff had a stenle vaginal exam IndiCi.<tll1gno ruplllre of membranes and pOSitive yeast. He read his recorded hIstory ofplaintifTs tcmperature ~9.J, positive fetal movement, negative vugll1al bleeding, negative rupture or rnembrane~, pbintdT's bClI1g very thirsty one day earlier, and that she was taking prenatal Vitamins. Dr. French stated that the note dId not lIldieale who supervised hlill but that clearly Dr. Xerri vI/as in a superviSing role and that It would havc been custolnary lor him to have discussed the case with a supervisory OB-(iYN resident. He had no independent recol1ecllon ofcal1ll1g Dr Xern but stated that he would have spoken to Dr. Xerri Dr French also staled (hat he did rcview the fetal monitoring stnp:" that It would have been custornary to havc reViewed them with a supervisor, and imlicatcd that they showed nothing unusual Dr Prcnch further stated that he did perform a stenle vagll1al CX,11l1 bu( he could nOl recall whetllel-there \'i,IS ~l upervisor present and read hiS exam results as the cervIx being closed, long, lirm s and posterior which was reassuring in terms oClabor. No sonogram was ordered but a urinalysis was ordered. Dr. French explained that he would have needed approval from SOlllton(: With more ,11ltl1llrity !O lw\'(: ordered blood work or a sonogram and that the performance ora sterile vaginal exam m,IY or may not have been III the presence ora supervisory phYSician and that at the time, he had pcrj{:mllcd more lhan ,\ hundred slich exams. According to Dr French, the ultimate deCISion not to admit the patient but to send her home was the responsibility of the attending, Dr. Xerri. [* 4] Fox Ii Xern lnde): No OS-9867 Page No.4 By his c!cpOSlt10nlcstimony dated October 10, 2010, Dr. XCITi tcsllficd that he is board certified III ob~telrJCS ~lJ1dgynecology, that plulllti rr first became his patient in March 1095, and thill III 1995 he ckllvcred pL.lInlill"s pnor baby that was born premature at 34 weeks. In uudiliOIl, Dr XCfn testified that he contlllucd tn:atlng pluintiffaftcr 1995, that plmntilThad a nllScarriage with no blccdlllg in 1997, that no physiological conditlOll was diagnosed that may have led to thc miscarriage, and that subsequently plaimi rrbeeame pregnant again With an expected delivery date or January 13, 1999 Dr Xerri explained that the prior pre-term delivery was slgnllicant as it could happen aguin but that the ll11scarnage Ivas not slgnJ1lcant. The last time Dr. Xerri actually saw plall1ti ff was on July 22,1998 and plallltiffwas th(TC;lner seen by hiS nurse practitioner. He noted Il'om hiS records that on October ]1), 1998 plallltiff VIsited IllS of!icc With complull1ts of crampll1g and some whIte, ';curdy" dIscharge and thelt IllS nurse pructitioner c.\ClInined plilintlff and f(Hll1dthat her water had not broken and that plulntiITs cervIx W:1S lhlCk and posterior, meanll1g normal for gestallonal age. Dr Xem also tesIJ fled that his nurse practitIOner called lmll dunng said visa and that he 1I1struetcd her to send plaintifTto Stony Brook Hospital lor monitonng in case there were any contractions because plalilliffhad a history ofpretCll11 labor He wanteJ plall1tiffto be placed on a fetal heart mom tor. Dr. Xern recalled that later that same day he spoke with a resident at Stony Brook Hospltal, Dr. French, who told him that plaintiff's cervix was closed, long, firm and posterior, 1hat there were 110contractions on the non-stress test machine, that thcre was good fetal movement, negative for rupture orthe membrane, that her urine revealed a posslblc urinary tract mfection, that he was conSIdering prescribing antibiotics for a urinary tract mlcction to which Dr. Xerri responded that It was probably a good Idea, and that Dr. French gave <lprescription fix Macr()bid for the Infection. DUring the deposition, Dr. Xerri reViewed the fctalmonitoring slrip and concluded thai It was normal. Accordmg to Dr. Xerri, aller returnJl1g from the hospital, plaintlJTtold the nurse practilioner that there was some spotting, which Dr. Xern told plmntiffwas normal. Then, on October 20, 1998, Dr. Xcrri spoke with plaintiff's husband who said that plaintifTwas dOJl1gbeller but still had some spotting and Dr Xern told hIm that she should stop work and be on bed rest. Dr. Xerri stated that on October 11, 199B he recei ved a call early III the mornmg that plalllti Cfhad copious fluid coming out orhcr vagina and he [old plaintlffto go to Stony Brook Hospitalnnmediately and she was Jdmittcd. Dr Xern also stated that he had 8dmittlllg privileges to Stony Brook HospItal Slllce ,lpproximately ]990. ;:\t'tcr plmntifrs admission, it was determlllcd at the hospitaltllat she had a spontaneous rupture 0 r her membrane, that there was a pooJ of dark brO\Nn f1Llld,positive ICrning and POSitiVI.: NltraZllle," severe oligohydrammos, " and chorioamniomtis, an infection of the amniotic nUIl1 By artirmation dated March 2, 2012, defendant's expert Marc Engelbert, M D. states that he is board ccrtiJlcd III obstetriCs and gynecology and that based on his review oCtile Slony Bruok Hospital labor and delivery l'ecord li)r October 19, 1998 it is IllS opinion with a rcason,lble degree ol'medical cenail1ty that the care ,md treatment provided plalllliffby Dr. French did not depart Crom good and accepted medica] pracliee and did not cause or contnbute to her alleged injUries. Dr Engelbert slates lil,ll Dr. French rendered care 10 plellnllJfonly on October I(), J 998, and as a lirst year reSident, Dr. French did not use allY independent Judgment or make any Il1dependenl deCISions regarding her obstelnCall1l<ll1agell1ent. Rather, her care and u'eatment was under the supervision and direction oCthc ~ltlending phYSICian, Dr Xcrn Here, Dr french lTlet his pnma Cacie burden oCdel1111nstratlng that, dllnn:~ IllS one day treatment oCplall1llfl he {lid not exerCise any Il1depcndent medical judgment, but was under the direct supen'lsion ol'tl1e attending physician, Dr Xern, whose directions did llot so greCltly devl,lie I-rolll norm:i\ pr~lcliec thai Dr. French should be held liable Jar j~lihng to lIltervcne (see Bel/ajiore [* 5] Fox \. XelTi Index No OS-08G7 Page No 5 I' Ricotta, 83 AD3d 631, 010 NYS1e1 373 [1e1Dept 1011]; Muniz v Katloll'itz, 49 AD3d 51 1,856 NYS2d 12U [2d Dept 2008:1; Velez I' Goldenberg, 29 AD3d 780, 815 NYS2d 2U5 [2d Dept 2006]) Plallltlfr l~l1lcd to raise a tnable Issue of fact III opposition to the motion {see Costello v Kirnwlli, 54 AD3d (i56, S()] NYS2d 161 [2d Dcpt 2008J; Muniz v Kat/owitz, supra). Plull1till falled to submIt an all'iduvlt or aflirmatloll ora medical expert to support her claims ofl1lalpracticc and to refute defendant's submissions and thus hlllcd to nllse a triable Issue of fact (see Savage v QuinJl, 91 AD3d 748, 937 NYS:~d 265 (2ei Dept 20121, Thomas v Richie, 8 AD3d 363, 777 NYS2d 758 [ld Dcpt 2004]). Plain1i IT's deposition testimony alone is Insufficient to r<:llsea triable issue of fact (see Lilli v Paslwwski, 57 AD3d 856, 57] NYS2d 227 [2d Del" 2()(J5J). Accordlllgly, the instant motion is granted and the complaint is dismissed Dr. French. The action IS severed and continued as agall1st Dr Xerri. l Dated. q/ /J dId --I-Ij----- as against defendant

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