Romanelli v Jones

[*1] Romanelli v Jones 2017 NY Slip Op 50306(U) Decided on February 15, 2017 Supreme Court, Putnam County Marx, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2017
Supreme Court, Putnam County

Charles Romanelli, Individually and as Administrator of the ESTATE OF GIA V. McGINLEY, , Plaintiffs,

against

Sadie Moss Jones, CNM, HUDSON HIGHLANDS MIDWIFERY, PLLC, KEITH B. LESCALE, M.D. and HUDSON VALLEY PERINATAL CONSULTING, PLLC, Defendants.



1074/2013



John H. Fisher, Esq.

Attorney for Plaintiff

278 Wall Street, 3rd floor

Kingston, NY 12401

Wayne H. Rubin, Esq.

Feldman, Kleidman, Coffey, Sappe & Regenbaum, LLP

Attorneys for Defendants Keith B. Lescale, M.D.

and Hudson Valley Perinatal Consulting PLLC

995 Main Street, P.O. Box A

Fishkill, NY 12524
Paul I. Marx, J.

The following papers numbered 1 to 12 were read on the motion by defendants Keith B. Lescale, M.D. and Hudson Valley Perinatal Consulting, PLLC (collectively "the Lescale defendants") seeking an order: (a) "pursuant to CPLR 3212 granting them summary judgment dismissing on the merits the complaint against them, (b) severing the action against any remaining defendants [and] deleting their names from the caption and (c) for such other and further relief as to the Court may seem just and proper":

Notice of Motion/Affidavit of Keith B. Lescale, M.D. dated August 3, 2016/Affirmation of [*2]Wayne M. Rubin, Esq. dated August 24, 2016/Exhibits A-O [FN1] 1-4

Memorandum of Law of Defendants Keith B. Lescale, M.D. and Hudson Valley Perinatal Consulting, PLLC in Support of Summary Judgment 5

Affidavit of Charles Romanelli dated October 4, 2016/Affirmation of John H. Fisher, Esq., dated October 4, 2016/Redacted Affirmation of an expert physician dated October 3, 2016/Exhibit A 9

Reply Affirmation of Wayne D. Rubin, Esq., dated October 11, 2016/Exhibit A 10-11

Reply Memorandum of Law of Defendants Keith B. Lescale, M.D. and Hudson Valley Perinatal Consulting, PLLC in Support of Summary Judgment 12

Upon the foregoing papers it is ORDERED that the Lescale defendants' motion for summary judgment dismissing the complaint is granted in all respects and the complaint is dismissed against those defendants. That portion of the motion which seeks severance of the claims against the other party defendants and deletion of their names from the caption is denied as moot in light of the discharge of all claims against defendant Sadie Moss Jones, CNM and defendant Hudson Highlands Midwifery, PLLC (collectively "the Jones defendants"). All scheduled dates are cancelled.

FACTS

Footnote fnref="2">

The facts underlying the action which are summarized here are drawn from the parties' submissions. They are presented, where un-controverted by the other party, without attribution to supporting documents. Where there is disagreement, the conflicting assertions are set forth. However, for purposes of the motion, the Court has viewed the facts in a light most favorable to plaintiff, the non moving party.

Overview

This action, which defines tragedy, had its genesis in the death of Gia V. McGinley, who died from a ruptured uterus on September 29, 2011 at Putnam Hospital Center after an initial attempt at vaginal birth after caesarean [FN3] section (VBAC) at home, under the auspices of Sadie Moss Jones, a nurse midwife. The child was delivered stillborn. This was Ms. McGinley's second attempt at vaginal delivery. The first was in 2008 when she delivered twins, by caesarean section, after a trial labor was terminated when one of the babies failed to progress.

Gia V. McGinley

At the time of her death, Ms. McGinley was the 39 year old wife of plaintiff, Charles Romanelli, and mother of 3 year old twins. In addition to attaining degrees in theater and [*3]psychology, prior to having her twins, Ms. McGinley had trained to become a doula [FN4] with DONA International. Upon moving to New York in 2010, Ms. McGinley furthered her study into childbirth through an entity known as Birth Works. Ms. McGinley wrote extensively about her strong preference for vaginal birth and her distrust of what she referred to as the "male merchants" who dominate the field of obstetrics. According to her, obstetricians view childbirth using a "male lens through which both lay men and male obstetricians that personify the medical industrial model of childbirth view childbirth." Exhibit G.

Significantly, when presented with a consent form by Ms. Jones, Ms. McGinley disagreed with various statements about the risks attendant to VBAC home delivery and modified the consent form to comport with her beliefs as to the risks, watering them down in the process. As noted by the defense, during the course of their discussion about the risks of VBAC home delivery, Ms. Jones provided Ms. McGinley with a link to the website featuring a statement of the National Institutes of Health ("NIH") addressing the risks of VBAC, including the risks of VBAC at home. After discussion between the two, Ms. Jones advised Ms. McGinley that "the NIH Consensus statement does not mean that VBAC in the home setting is as safe as VBAC in a hospital." Exhibit H, p18. Ms. McGinley disagreed, stating that, in her view, "there is not enough research to conclude that VBAC home birth is less or more safe than in a hospital." Id. Consequently, the consent form as modified and signed by Ms. McGinley included her view of the safety of VBAC home delivery.

Sadie Moss Jones

Defendant Sadie Moss Jones, the nurse midwife who managed Ms. McGinley's pregnancy and was attempting to deliver the baby vaginally at home, has a masters degree in midwifery from State University of New York, Downstate, obtained in 2001. That same year she was certified as a nurse midwife. She is a registered nurse, having obtained a BS in Nursing from Columbia University in 2000. She also obtained a BS in Biology from the University of Maryland in 1998. Before establishing Hudson Highlands Midwifery, PLLC, Ms. Jones was employed at Bellevue Hospital where she was involved in 20-30 VBACs, all in a hospital. During their relationship, Ms. Jones advised Ms. McGinley in a written care plan signed by her on April 25, 2011, that New York State Regulations required:

"that midwives have a "collaborative relationship(s) with physicians and/or hospitals to facilitate consultation, collaboration and/or transfer based on the health status of the patient. These may include but are not limited to obstetricians, perinatologists and pediatricians. Hudson Highlands Midwifery has this relationship with Northern Dutchess Hospital in Rhinebeck and Dr. Andrew Garber in northern New Jersey." Exhibit L, p 42.[FN5]

Ms. Jones began practicing child birth at home in or around 2010 and had delivered approximately 8 babies prior to attempting to deliver Ms. McGinley's baby at home in September 2011. None of the prior home deliveries were VBACs.

Ms. Jones testified that Ms. McGinley advised her that she did not want to know the baby's weight because she thought that knowing the weight might psychologically inhibit her confidence in completing labor. Ms. Jones also testified that she advised Ms. McGinley that there are studies which correlate the weight of the baby to an increased risk of uterine rupture due to the fact that the uterus is stretched more with a larger baby. She testified that she informed Ms. McGinley of increased risks attributed to a baby who remains in utero post term, so called "postdatism" as well. Ms. Jones' records reveal that she offered Ms. McGinley an article which discussed the risks attendant to postdatism at a visit on September 22, 2011. Her office notes reflect that "Gia declines to take [the] article home."

Keith B. Lescale, M.D.

Defendant Keith B. Lescale, M.D. is an obstetrician/gynecologist who specializes in maternal fetal medicine. Dr. Lescale owns and operates defendant Hudson Valley Perinatal Consulting, PLLC. His practice has been limited to performing pre-natal consulting services since 2003, the same time he last had admitting privileges at a hospital. Pursuant to prescriptions issued for Ms. McGinley by Ms. Jones, Dr. Lescale performed ultrasounds to determine the baby's health and development, alpha-fetoprotein blood tests, and a bio-physical study.

Dr. Lescale does not participate in delivering babies, having last done so in 2004 when he assisted another physician who was performing a caesarean section. According to his affidavit, Dr. Lescale does not provide recommendations for method of delivery in any case. Where, however, his evaluations reveal that the condition of the baby is such that delivery must be undertaken to protect its health, he advises the referring obstetrician or mid-wife of that fact. Additionally, where a defect in a baby that can be addressed medically is revealed, he advises the referring provider accordingly.

The Events Leading to Ms. McGinley's Death

Ms. McGinley's pregnancy was managed by her and Ms. Jones, who she saw at least monthly and sometimes more than once per month. Ms. McGinley was seen by Dr. Lescale (or his staff) for testing on four occasions, all pursuant to prescriptions issued by Ms. Jones. The visits took place on March 9, 2011, April 25, 2011, August 11, 2011 and September 28, 2011.

The first prescription from Ms. Jones for Ms. McGinley requested Dr. Lescale to perform a nuchal translucency scan [FN6] and first trimester trisomy blood work.[FN7] The March 9, 2011 ultrasound revealed the expected date of delivery to be September 19, 2011. The anatomic structures were reported as developing normally. Dr. Lescale attests that he and Ms. McGinley discussed the risk of chromosomal abnormality in light of her age. Dr. Lescale testified at examination before trial and attests in his supporting affidavit that Ms. McGinley informed him [*4]that she strongly favored delivering the baby at home.

Dr. Lescale next saw Ms. McGinley on April 18, 2011 for additional ultrasound and an alpha-fetoprotein blood test [FN8] as requested by Ms. Jones. The ultrasound showed no abnormalities. The blood test was reported as normal.

On August 19, 2011, Ms. McGinley was seen in Dr. Lescale's offices, again at the request of Ms. Jones, for an ultrasound. The prescription written by Ms. Jones included instructions to Dr. Lescale that Ms. McGinley did not want to know the baby's weight. Apparently, Dr. Lescale was not in the office that day, but his staff was able to perform the ultrasound, which he later interpreted as normal with respect to fetal movement, tone and breathing. The baby was noted to be in the vertex position, with normal amount of amniotic fluid. The baby's weight was estimated at 2816 grams,[FN9] the 72nd percentile.

Ms. McGinley last saw Dr. Lescale on September 28, 2011, again pursuant to Ms. Jones' referral. At the visit, which was 9 days after her expected delivery date, Dr. Lescale estimated the baby's weight to be 10 pounds, 9 ounces, plus or minus 10%. Again, as per Ms. McGinley's request, and as noted on the prescription by Ms. Jones, Ms. McGinley was not informed of the estimated weight.

Dr. Lescale states that he advised Ms. Jones of the baby's size later on September 28, 2011 by telephone and told her to "proceed with caution." Ms. Jones recounted that she inquired of Dr. Lescale how accurate he believed his assessment to be as well as his accuracy rate historically. Ms Jones informed Dr. Lescale that she believed the baby to be smaller than he estimated based on her belief that scar tissue from the prior caesarean section was affecting the estimate. Ms. Jones stated that she disagreed with Dr. Lescale's size estimate and that she estimated the baby's weight at approximately 7 3/4 pounds using the "Leopold's method", which relies on estimation by hand measurements.

Ms. Jones testified that she met with Ms. McGinley for more than 2 hours on September 29, 2011. During the visit, Ms. Jones performed an accelerated auscultation test (AAT), which is designed to assess the fetal heart rate over a period of time, without the baby being subjected to stress. Ms. Jones reported that the AAT was normal for a baby who was not being subject to labor and who was receiving adequate oxygen. Ms. Jones testified that:

"I discussed with her the results of the biophysical profile being eight out of eight, which is reassuring. I discussed with her that the amniotic fluid amount was less than what my perception had been at the prior visit by Leopold's. And I discussed with her — so I prepared her, because I knew that she — she had not wanted to know the estimated fetal weight. And so I brought up to her that we needed to discuss the baby's weight and that I knew that she. You know, had said more than once that she didn't want to know the [*5]estimated fetal weight, but that the baby was large, in the macrosomic range,[FN10]and that we needed to discuss — if she wasn't willing to hear the number, that we needed to discuss the risks associated with a baby of that size."

Exhibit M, p127

Ms. Jones asserts that she and Ms. McGinley discussed Dr. Lescale's sonogram report and its implications for "at least 45 minutes". The discussion revealed that Ms. McGinley knew that the baby was a "big baby, he had chubby cheeks; that she had seen that on the ultrasound", but that "even though she was concerned [the fetal weight estimate] might not be correct, she acknowledged that it was a large baby." Ms. Jones testified that she and Ms. McGinley discussed whether to attempt to initiate labor using a membrane sweep,[FN11] the possibility of shoulder dystoccia associated with larger babies, as well as risks of vaginal bleeding, rupture of the membrane, and the possibility that delay in getting to a hospital if difficulty was encountered might result in harm to the baby, including possible brain damage or death. Ultimately, Ms. Jones states that she recommended delivery in a hospital.[FN12]

According to Ms. Jones, Ms. McGinley acknowledged that she was aware of these risks, but insisted that she wanted to proceed with a trial labor at home. Ms. Jones testified that she was rebuffed when she suggested that Ms. McGinley should speak with Mr. Romanelli. Ms. Jones stated that because of Ms. McGinley's insistence on proceeding, even though she opposed the attempt at home birth, she agreed to assist her when the time came.

Later the same day, Ms. McGinley and Ms. Jones spoke by telephone sometime around 8:30 p.m. Ms. McGinley advised Ms. Jones that she had begun to feel what she believed to be labor pains and they discussed whether to increase the intensity of the labor by nipple stimulation, a method which Ms. Jones rejected. Ms. Jones instructed Ms. McGinley to call her if the contractions intensified. The two agreed that Ms. Jones would "sneak in through the back door" to check on Ms. McGinley later since neither her chosen doula, Nancy Chase, nor her mother had yet arrived to assist her. Ms. Jones contends that she inquired of Ms. McGinley whether she had discussed the increased risks of macrosomia with plaintiff based on the recent sonogram, learning that she had not.

Ms. Jones states that in response to a phone call from Mr. Romanelli [FN13] around 11:30 p.m., [*6]she drove to plaintiff's home, arriving at approximately 12:25 a.m. Upon arrival, she found Ms. McGinley in the birthing pool attended by Ms. Chase. Mr. Romanelli was elsewhere in the house with the other children.

Ms. Jones' notes reflect that at 12:35 a.m., she was unable to detect a fetal heart beat, despite using two different doppler devices, prompting her to call 911 for emergency assistance. While waiting for emergency services to arrive, a fetal heart beat was detected and a call was made to 911 cancelling the request for assistance. Shortly thereafter, 2 police officers arrived intending to transport Ms. McGinley to the hospital, only to be informed by Ms. Jones, in the presence of Mr. Romanelli, that the fetal heart rate had been detected, that this was a planned home birth and that their services were not needed. At 1:05 a.m., Ms. Jones documented that Ms. McGinley was on the bed, resting with eyes closed. At 1:20 a.m., Ms. McGinley was noted to be sleeping. At 1:35 a.m., Ms. McGinley returned to the birthing pool, where she remained until approximately 2:50 a.m., when she exited the birthing pool to use the bathroom, accompanied by Ms. Chase.

While Ms. McGinley was sitting reverse on the toilet, she became pale and dizzy. She collapsed, falling backwards and losing consciousness. Emergency services were again called, Ms. McGinley was moved to the floor and efforts to insert an IV were undertaken by Ms. Jones. Ms. McGinley's breathing became irregular, with gasping and frothing at the mouth. She subsequently vomited. When Ms. Jones was unable to detect a pulse, CPR was begun and continued after the police and EMS arrived. Upon arrival, EMS attempted resuscitation with a defibrillator and inserted an IV, subsequently transporting Ms. McGinley to Putnam Hospital Center where the baby was stillborn, weighing 10 pounds 11 ounces. Ms. McGinley died from hemorrhaging due to a posterior rupture of the uterus. Notably, the rupture of the uterus occurred at a site other than the site of the prior caesarean incision. A posterior rupture is described by Dr. Lescale as a very rare complication of trial labor after caesarean.

The Action

On May 30, 2013, this action was commenced against the Jones defendants and the Lescale defendants, by filing of a Summons and Complaint. Exhibit A. The complaint asserts three causes of action. The first cause of action alleges that the individual defendants, Ms. Jones and Dr. Lescale "carelessly and negligently rendered medical and nursing care" (Complaint ¶30), adding that Ms. Jones also acted "recklessly and was grossly negligent (Id. ¶31), causing Ms. McGinley to suffer "severe and irreparable personal injuries" (Id. ¶32). The second cause of action asserts a claim for wrongful death of Ms. McGinley(Id. ¶35). The third cause of action asserts a claim for derivative losses suffered by Charles Romanelli (Id. ¶39).

Issue was joined by the Lescale defendants on July 3, 2013 and by the Jones defendants on August 26, 2013. All defendants denied liability and raised various affirmative defenses, including the contributory negligence of Ms. McGinley. Exhibits B and C.

On February 28, 2016, plaintiff was directed to serve and file a Note of Issue and the matter was scheduled for trial on June 9, 2016. Pretrial settlement conferences were also scheduled. Under this Court's rules, the defendants had 60 days in which to move for summary judgment. Trial was adjourned and the time to make motions was extended due to the Jones defendants' filing for bankruptcy. Following the Jones defendants' discharge in bankruptcy in May 2016, the matter was returned to the calendar against the remaining defendants, a new [*7]timetable was set for submission of motions and revised conference and trial dates were set.[FN14]

The Motion

The Lescale defendants now move for summary judgment, generally asserting that Dr. Lescale owed no duty to Ms. McGinley, whose care was managed by Ms. Jones. Rather, the Lescale defendants contend that Dr. Lescale's care of Ms. McGinley was limited to providing perinatal diagnostic ultrasounds and alpha fetal protein tests, as requested by Ms. Jones. In addition, the Lescale defendants urge that given Ms. McGinley's training and experience, she was aware of the risks of vaginal birth after caesarean section and voluntarily undertook them. Finally, they assert that nothing Dr. Lescale did or did not do was a substantial factor in causing Ms. McGinley's death.

The motion is supported by the affidavit of Dr. Lescale, various exhibits and a memorandum of law. Succinctly put, Dr. Lescale asserts that he was not the medical provider who managed Ms. McGinley's pregnancy. He submits that his practice is limited to performing perinatal testing and that his involvement with Ms. McGinley was to perform, interpret and report on requested perinatal testing. He contends that he properly performed the tests he was requested to perform and that, in any event, there is no causation between his care and the death of Ms. McGinley.

Plaintiff opposes the motion with his own affidavit, in which he asserts that had Dr. Lescale informed Ms. McGinley of the risks of VBAC home delivery, she would not have attempted the birth at home. Plaintiff also submits an affirmation of "Dr. Marcus Belby",[FN15] a Board certified obstetrician/gynecologist who opines that Dr. Lescale deviated from good and accepted obstetrical practice by failing to inform Ms. McGinley of the risks of VBAC and failing to ensure that proper planning for the proposed VBAC was in place to respond to any untoward event that might arise. In rendering such an opinion, Dr. Belby contends that a legal duty existed from Dr. Lescale to Ms. McGinley to prevent her from undergoing the attempted home vaginal birth. He posits, generally, that good and accepted obstetrical practice required Dr. Lescale to provide information to Ms. McGinley, because he was Ms. Jones' collaborating obstetrician.

Dr. Lescale's Testimony and Affidavit

In his affidavit in support of the motion, Dr. Lescale states that he is Board certified in obstetrics and gynecology and the subspecialty of maternal-fetal medicine.¶3. He states that his practice has been limited to maternal fetal medicine since July 2003 when he formed Hudson Valley Perinatal Consulting. ¶4. He describes his practice as limited to consulting, based primarily on performing and interpreting ultrasounds for patients referred by obstetricians and midwives. Id. He states that since forming Hudson Valley Perinatal Consulting PLLC, he has [*8]"never managed the care of a pregnant woman through delivery." ¶6. He states that he has not "had privileges to admit patients to any hospital since 2003", although he has consulting privileges at two hospitals for "the limited purpose of seeing a patient at the specific request of another physician." Id. He attests that his "involvement with issues concerning delivery are quite limited. ... I may advise the referring obstetrician or nurse midwife, based on test results, that a fetus needs to be delivered. I do not, however, ever get involved in or make recommendations regarding the method of delivery. Sometimes my testing reveals conditions of the fetus, such as heart anomalies, that can only be treated at a tertiary facility. I will then advise the referring provider of that situation." ¶7.

Dr. Lescale reports that Ms. Jones previously referred patients to him for testing, some of whom were planning home births. He states that he does not have any written or oral agreement with any nurse midwife, including Ms. Jones, to act as a collaborating obstetrician, nor does he provide for planning or providing emergency medical, obstetrical or gynecological coverage. He states that he could not do so because he lacks the required admitting privileges at any hospital. ¶9.

Dr. Lescale recounts the events of his first meeting with Ms. McGinley on March 9, 2011, at which he performed the ultrasound and blood tests requested by Ms. Jones. He states that he performed a nuchal translucency scan and first triostomy blood work, determining that the anatomical structures were normal and forming an opinion that Ms. McGinley's due date was September 19, 2011. He states that at this visit and the next visit on April 18, 2011, he discussed the risk of chromosomal abnormality attributable to her age. ¶8.

Dr. Lescale reports that the April 18, 2011 visit was to allow him to perform another ultrasound requested by Ms. Jones, as well as an alpha fetoprotein test. He reported these as normal. ¶10.

Dr. Lescale states that Ms. McGinley was again seen in his practice on August 19, 2011 for ultrasound pursuant to a prescription from Ms. Jones. The prescription included instructions that the patient did not wish to be told the fetal weight. The ultrasound showed everything to be normal. ¶11

Dr. Lescale avers that he last saw Ms. McGinley on September 28, 2011 for ultrasound. Once again, the prescription directed that Ms. McGinley was not to be informed of the estimated fetal weight. Dr. Lescale further states that he told Mr. Romanelli of the baby's size. Dr. Lescale denies being asked for his opinion concerning an anticipated home birth and states that even if asked, he would not have rendered an opinion because "home deliveries and VBAC were outside my area of expertise, and I was not familiar with their risks." ¶12.

Dr. Lescale states that in the evening of September 28, 2011, he spoke with Ms. Jones and advised her of his estimate of fetal weight. He states that Ms. Jones disagreed with his estimate, suggesting that the fetus was much smaller based on her tactile method of estimating. He states that he informed Ms. Jones that she should "proceed with caution". ¶13.

Dr. Lescale recites that he has reviewed the deposition testimony of Ms. Jones. He notes that Ms. Jones discussed the risks attendant to home birth with a larger baby at length with Ms. McGinley despite her opinion that the baby was not as large as Dr. Lescale estimated. He repeats that Ms. Jones testified that she recommended delivery in a hospital but that Ms. McGinley rejected the suggestion. ¶14. He also states that he learned from documents exchanged in this [*9]litigation that Ms. McGinley had signed a consent form in which she acknowledged that there are risks attendant to VBAC, including uterine rupture. ¶15.

Dr. Lescale states that "according to the medical records Gia suffered a uterine rupture, although not at the site of the surgical scar from the caesarean section. Rather it was a posterior rupture, a very rare complication of trial of labor after caesarean." ¶16.

Dr. Lescale reports that he has reviewed the allegations of negligence made in plaintiff's amended Bill of Particulars and opines, with a reasonable degree of medical certainty, that the allegations are without merit. ¶17.

Addressing the allegations en masse, Dr. Lescale states that:

"for the most part, plaintiff's allegations consist of various iterations of the contention that I should have tried to dissuade Gia V. McGinley from attempting a home birth with a nurse midwife by informing her of the various risks of her plan. However, the standard of care does not require me to inform her of such risks. I was not the medical provider primarily handling Gia McGinley's pregnancy and was not requested by the patient or her certified midwife to give my input into the method and place of the delivery, including arrangements in the event emergency arose. Significantly, under no circumstances was I to be the healthcare provider who was going to perform the delivery. In addition, I was not expected, in conformity with accepted medical practice, to question Sadie Moss Jones or Gia McGinley about what contingency arrangements were made and with whom, nor was I required to investigate the experience and competence of those persons involved in that aspect of her care, including Sadie Moss-Jones. Furthermore, the records show that Sadie Moss Jones presented to Gia McGinley, both verbally and in writing, the risks of going forward with a home delivery, and on September 29, 2011, advised her to have delivery at a hospital which she rejected. The standard of care provides that there should be respect for patient autonomy. A patient should be allowed to accept increased levels of risk, provided that they are informed of such potential increase in risk and management alternatives by the person managing the pregnancy or performing the delivery, which was done here. Outside consultants, such as myself, performing limited services who are not part of the delivery team need not conduct an independent investigation into whether the patient was adequately informed or the credentials of the patient's other providers. Furthermore, there is no evidence to demonstrate that even if I went beyond the limited boundaries of serving primarily as an ultrasound consultant and tried to convince Gia McGinley to have delivery at a hospital, that she would have changed her decision, particularly as she felt that obstetricians were too quick to resort to caesarean sections. Notably, because I would not (and could not) be involved in the delivery, I could not promise her what the obstetrician actually involved in the delivery would or would not do." ¶17(a).

Dr. Lescale states that, given his limited practice area, he was not required to be aware of the opinion of the American College of Obstetricians and Gynecologists, which states that prior caesarean delivery is a contraindication to planned home birth. ¶17(n).

Dr. Belby's Affirmation

In the affidavit submitted in opposition to the defendants' motion, Dr. Belby appears to conflate the alleged negligence of Ms. Jones with that of Dr. Lescale. (Plaintiff's attorney's [*10]arguments suffer from the same infirmity.) The Court has parsed the allegations to examine those against Dr. Lescale and his group as opposed to those leveled against Ms. Jones.

Dr. Belby states that the consultations with Dr. Lescale on March 16, 2011,[FN16] April 18, 2011, and August 22, 2011 were unremarkable. He saves his criticisms for the September 28, 2011 visit and highlights Dr. Lescale's alleged failure to inform Ms. McGinley of the risks attendant to VBAC home delivery as well as the alleged failure to ensure that appropriate plans were made in case the attempt at VBAC at home went awry.

After noting that Ms. McGinley's unborn child was estimated to weigh 4,799 grams at the September 28, 2011 visit, "which was higher than the 90% percentile", Dr. Belby observes that Dr. Lescale "suspected [that this was a] macrosomic baby" with a gestational age of 41 weeks, 2 days. ¶ 10. He states that "the risks associated with macrosomia or large for gestational age babies increase as the baby gets larger. For patients with a prior caesarean section, macrosomia or large for gestational age babies can increase the risk of uterine rupture. Obstetrical sonograms have a margin of error of 10%/20% for estimating fetal weight, and thus, a baby with an estimated fetal weight of 10 pounds, 9 ounces could weigh more than 13 pounds." ¶11. Dr. Belby opines that "management strategies for suspected macrosmia or large gestational age babies ("LGA") include elective caesarean section and early induction of labor." ¶12.

Dr. Belby notes that although Dr. Lescale was aware of Ms. McGinley's intention to proceed with a home birth, "there is no indication in the records that he advised Ms. McGinley of the increased risk of maternal and fetal death that are associated with TOLAC [FN17] at home and that it is contraindicated." ¶13. It is here that Dr. Belby asserts that Dr. Lescale was negligent, 1 ½ days prior to Ms. McGinley's death. ¶15.

Dr. Belby states that "[t]he applicable standards of care for a board certified obstetrician and gynecologist, such as Dr. Lescale, required Dr. Lescale [to] inform Gia V. McGinley about the substantial risks of a TOLAC at home, particularly when combined with Gia V. McGinley's known clinical information of being a 39 year old female with a history of caesarean section for failure to progress, advanced maternal age and suspected macrosomia." ¶16

Significantly, at paragraph 17 of his affidavit, Dr. Belby states:

"A trial of labor after caesarean delivery ("TOLAC") poses significant risks to the mother and baby. The most common cause of uterine rupture is separation of a previous caesarean scar. Even if the mother is a good candidate for a TOLAC, there is a risk that her uterus will rupture at the site of the caesarean section incision, resulting in severe blood loss for the mother and possibly oxygen deprivation for the baby."

Dr. Belby states that "because uterine rupture can be catastrophic to the mother and baby, a TOLAC should only be attempted in institutions equipped to respond to emergencies with physicians immediately available to provide emergency care. ¶ 20.

Dr. Belby opines that there must be a doctor on site prepared to perform a caesarean section as well as an anesthesiologist, neonatal support, a surgical suite and equipment for around the clock monitoring, where a TOLAC is attempted. ¶ 21. Dr. Belby informs that "the American [*11]College of Obstetricians and Gynecologists on Obstetric Practice considers a prior caesarean delivery to be an absolute contraindication to planned home birth." ¶22, citing ACOG Committee Opinion No. 476, February 2011.

Thus, Dr. Belby states that "Dr. Lescale should have informed Gia V. McGinley that a TOLAC at home is associated with a substantially increased risk of neonatal and maternal death when compared with planned hospital birth." ¶23.

Dr. Belby notes that Ms. Jones admitted in her examination before trial not knowing whether TOLAC was safer at a hospital than at home. ¶24. He states that the consent form "drafted by Sadie Moss Jones, CNM"[FN18] incorrectly "suggests that a TOLAC at home may be as safe as a TOLAC in a hospital despite ACOG's contraindication for a TOLAC at home". Id.

Dr. Belby questions why, if Dr. Lescale was not managing Ms. McGinley's pregnancy, he would note that he advised Ms. Jones to "proceed with caution". ¶29. Relying on Ms. Jones' testimony,[FN19] Dr. Belby asserts that Dr. Lescale was Ms. Jones' collaborating physician ¶30. He contends, therefore, that Dr. Lescale was responsible for managing the pregnancy, including "consultation, collaborative management and referral to address the health status and risks of a nurse midwife's patients and that includes plans for emergency medical gynecological and/or obstetrical coverage." ¶31. He concludes, therefore, that Dr. Lescale was "ultimately responsible for the patient." ¶32.

Dr. Belby opines that Dr. Lescale departed from "the minimum acceptable standards of care for a board-certified obstetrician and gynecologist by:

a) Failing to inform the plaintiff's decedent of the risks and complications associated with vaginal birth after caesarean section home birth with a nurse midwife;b)Failing to inform the plaintiff's decedent that a vaginal birth after caesarean should only be attempted in institutions equipped to respond to emergencies with physicians immediately available to provide emergency care;c) Failing to inform the plaintiff's decedent that she was at particularly high risk for complications during labor based on estimated fetal weight of 10 lbs, 9 ounces, suspected fetal macrosomia, advanced maternal age, post due date, and vaginal birth after caesarean home birth with midwife;d) Failing to inform the plaintiff's decedent of the significant risk of serious maternal and/or fetal mordibity or mortality with a vaginal birth after caesarean home birth with a nurse midwife;e) Failing to inform the plaintiff's decedent that a nurse midwife was not an appropriate [*12]candidate for her high risk pregnancy and labor and delivery in a home setting;f) Failing to recommend reasonable precautions for the significant risk of uterine rupture;g) Failing to ensure that there was an appropriate facility or institution available for emergency care; and [sic]h) Failing to recommend to Sadie Moss-Jones, CNM, who referred Gia V. McGinley to him, that delivery should be conducted in a hospital; [and]i) Failing to tell Sadie Moss-Jones, CNM and Gia V. McGinley that it was contraindicated to do a TOLAC at home." ¶33

Dr. Belby cites the alleged negligence as causing Ms. McGinley's death because, in his opinion, had delivery taken place at a hospital, "she would have had access to facilities and obstetricians, anesthesia, neonatal support and surgical suites available to provide emergency treatment for a uterine rupture." ¶34. He asserts that "once the uterine rupture was suspected through electronic fetal monitoring, a repeat caesarean section would have been performed and with a reasonable degree of medical certainty, the mother and baby's lives would have been saved." ¶ 35. He concludes by stating that the departures alleged by him "resulted in a delay in diagnosis and treatment of uterine rupture; resulted in a significant delay in treatment for Gia V. McGinley and her baby; [and] deprived Gia V. McGinley and her baby of a substantial chance of a significantly better survival." ¶36.

Mr. Romanelli's Affidavit

Plaintiff Charles Romanelli is the widower of Ms. McGinley. In his affidavit in opposition he states that he attended the final ultrasound performed by Dr. Lescale and that Dr. Lescale did not "tell us he had any concerns about her plan for a trial of labor after caesarean delivery at home". Romanelli affidavit dated October 4, 2016 ¶2. He states that neither he nor his wife were told of any dangers or risks of a trial of labor after caesarean delivery and that he was not concerned about Gia's plan for home delivery. He continues "Gia and I were unaware of the risks of a trial of labor after caesarean at home." Id. ¶3.

Mr. Romanelli states:

"Had Dr. Lescale told Gia or I [sic] that she should deliver in a hospital, I would have insisted that Gia follow his advice and I am certain that Gia would have accepted his advice for the safety of her and our unborn son." Id. ¶5.

Mr. Romanelli denies that Ms. Jones told Ms. McGinley or him that a hospital delivery was recommended. Plaintiff states that he and Ms. McGinley were informed by Dr. Lescale that "everything looked great".[FN20] ¶8. He recounts the events of September 29, 2011, including Ms. Jones' instructing the police, in his presence, to leave, following her initial inability to detect a fetal heartbeat. Id. ¶¶9-10.

Finally, Mr. Romanelli avers, "My wife never told me that she would not deliver at a hospital. Gia preferred a home delivery, but she would have followed the advice of Dr. Lescale and delivered our unborn son at a hospital if she had been given that advice." Id. ¶12.

STANDARDS FOR SUMMARY JUDGMENT MOTIONS

CPLR §3212(b) provides, in pertinent part, that a motion for summary judgment "shall be [*13]granted if, upon all of the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party."

It is axiomatic that summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue. Alvarez v Prospect Hospital, 68 NY2d 329 (1986); Andre v Pomeroy, 35 NY2d 361 [1974]. The function of the court on a motion for summary judgment is not to solve issues of fact or determine issues of credibility, but merely to determine whether such issues exist. Stukas v Streiter, 83 AD3d 18 [2nd Dept 2011]. To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented by the parties' submission. Matter of Suffolk County Dept. of Social Services v James M., 83 NY2d 178 [1994]. Because summary judgment is the equivalent of a trial, there must be no material issues of fact for resolution by the trier of fact. Sillman v Twentieth Century-Fox Film Corp.,3 NY2d 395, 404 [1957].

In making this determination, the Court must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference that may be drawn from the evidence. Negri v Stop and Shop, Inc., 65 NY2d 625 [1985]; Nash v Port Washington Union Free School District, 83 AD3d 136 [2nd Dept 2011]; Pearson v Dix McBride, LLC., 63 AD3d 895 [2nd Dept 2009]. The moving party must provide a prima facie showing of entitlement to judgment as a matter of law by sufficient evidence; and is entitled to summary judgment only if it tenders evidence sufficient to eliminate all material issues of fact from the case. Winegrad v New York University Medical Center, 64 NY2d 851 [1985]. Issue finding, not issue determination, is the key to summary judgment. Krupp v Aetna Casualty Co., 103 AD2d 252 [2nd Dept 1984]. Even the color of a triable issue of fact forecloses the remedy. In Re Cuttitto Family Trust, 10 AD3d 656 [2nd Dept 2004].

To establish a prima facie case of negligence, plaintiff must establish that defendant owed a duty to plaintiff, the duty was breached and the breach of the duty was a substantial factor in causing harm to plaintiff. Where the claim is of medical negligence,"[t]he requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of medical practice, and evidence that such deviation or departure was a proximate cause of injury or damage" Lau v Wan, 93 AD3d 763, 765 [2nd Dept 2012]; citing Castro v New York City Health & Hosps. Corp., 74 AD3d 1005 [2nd Dept 2010]; Deutsch v Chaglassian, 71 AD3d 718, 719 [2nd Dept 2010]; Geffner v North Shore Univ. Hosp., 57 AD3d 839, 842 [2nd Dept 2008].

"A defendant physician moving for summary judgment in a medical malpractice action has the initial burden of establishing, prima facie, either the absence of any departure from good and accepted medical practice or that any departure was not the proximate cause of the alleged injuries." Lau v Wan, supra at 765; see Shichman v Yasmer, 74 AD3d 1316 [2nd Dept 2010]; Larsen v Loychusuk, 55 AD3d 560, 561 [2nd Dept 2008]; Sandmann v Shapiro, 53 AD3d 537 [2nd Dept 2008].

Once a party has demonstrated prima facie entitlement to summary judgment, the burden shifts to the opponent to demonstrate by admissible evidence that an issue of fact exists sufficient to deny the relief sought. Zuckerman v City of New York, 49 NY2d 557 [1980]. A party opposing a motion for summary judgment must lay bare his or her proof. Del Giacco v [*14]Noteworthy Company, 175 AD2d 516, 517 [3rd Dept. 1991]. In order for a party to successfully oppose a motion for summary judgment, he must demonstrate a bona fide defense to the action/motion; the defense must be fairly debatable and of a substantial character. See Kaye v Keret, 89 AD2d 885, 886 [2nd Dept 1982]. If the papers show no real defense, or at best a shadowy or perfunctory defense, summary judgment may be granted. See Sabato v Soffes, 9 AD2d 297, 300[1st Dept1959]. "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient [cit. om.]." Zuckerman, supra at 562.

"In a medical malpractice action, a plaintiff, in opposition to a defendant physician's summary judgment motion, must submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician that he was not negligent in treating plaintiff so as to demonstrate the existence of a triable issue of fact." Alvarez v Prospect Hospital, 68 NY2d 320 [1986]. "To rebut a defendant physician's prima facie showing of his or her entitlement to judgment as a matter of law, the plaintiff must demonstrate the existence of a triable issue of fact through the submission of evidentiary facts or materials." Khosrova v Westermann, 109 AD3d 965 [2nd Dept 2013], citing Zapata v Buitriago, 107 AD3d 977 [2nd Dept 2013]; Stukas v Streiter, 83 AD3d 18, 24 [2nd Dept 2011].

"General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment" Khosrova v Westermann, supra, citing Rebozo v Wilen, 41 AD3d 457, 458 [2007]; see Flanagan v Catskill Regional Med. Ctr., 65 AD3d 563, 565 [2nd Dept 2009]. Hence, it is not enough for an expert to opine in conclusory fashion that the physician departed from accepted practice, the opinion must be based on admissible evidence. If the opposition is without a basis in the record, it is insufficient to raise a triable issue. Id.

DISCUSSION

The Lescale defendants established their prima facie entitlement to summary judgment by submitting competent and admissible proof which established that Dr. Lescale did not have a duty to advise Ms. McGinley of the risks attendant to VBAC home delivery. In addition, they have established that even if such a duty existed, plaintiff cannot establish that the alleged failure to inform Ms. McGinley was a substantial factor in causing her death.

Consequently, the burden shifted to plaintiff to establish a question of fact that would warrant denial of the motion. Plaintiff has failed to do so notwithstanding the submission of the expert opinions of Dr. Belby.

Plaintiff's Claims Fail Because Dr. Lescale Owed No Duty to Advise Ms. McGinley of the Risks of VBAC

For the most part, plaintiff's claims against Dr. Lescale spring from an alleged failure to advise Ms. McGinley that her intended and preferred method of delivery, VBAC home delivery, was contraindicated. Thus, in this case, the primary question to be answered is the extent of the duty Dr. Lescale owed to Ms. McGinley and whether that duty required him to caution her away from her chosen method of delivery. On this record, this Court holds that because of the limited nature of his practice, Dr. Lescale did not owe Ms. McGinley a duty to provide such information to her. Dr. Lescale was not the medical provider managing Ms. McGinley's pregnancy, he was a consultant who provided limited adjunct consultative services to Ms. Jones, who managed the pregnancy. (Indeed, it appears that the pregnancy was jointly managed by Ms. Jones and Ms. [*15]McGinley.) Rather, Dr. Lescale's duty, which he fulfilled by performing, interpreting and reporting perinatal tests, was limited by his practice, a limitation that Dr. Belby appears to have ignored.

"In order to reach any discussion about deviation from accepted medical practice, it is necessary to establish the existence of a duty." Burtman v Brown, 97 AD3d 156, 161 [1st Dept 2012]. A physician's duty to a patient may be limited by the nature and type of services rendered. "Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient." Covert v Walker, 82 AD3d 825 [2nd Dept 2011], citing Chulla v DiStefano, 242 AD2d 657, 658 [2nd Dept 1997]; see Markley v Albany Med. Ctr. Hosp., 163 AD2d 639, 640 [2nd Dept 1990]. In Mosezhnik v Berenstein, 33 AD3d 895 [2nd Dept 2006] the court determined that radiologists with a limited role of interpreting mammography films owed no duty to schedule or urge further testing or diagnose medical conditions. Similarly, the Court in Elias v Bash, 54 AD3d 354 [2nd Dept 2008] found that a consulting cardiologist whose practice did not include obstetrics or surgery yet advised the attending obstetrician of the necessity to explore the possibility of intra-abdominal bleeding following testing, fulfilled his duty by alerting the attending physician.

Simply put, Dr. Belby's opinions as to the duty of a practicing obstetrician are not probative on the duty owed by an obstetrician who does not practice obstetrics, instead specializing in perinatal testing. Indeed, Dr. Belby states:

"I am fully familiar with the standard of care for board-certified obstetricians as it existed in Dutchess County, New York and throughout New York State and the United States during the year 2011. I am also familiar with the generally accepted standards for managing the pregnancy and labor and delivery for patients with a prior caesarean delivery and with the generally accepted methods that are used for managing the pregnancy and labor and delivery of [a] patient with a prior caesarean delivery." Belby affirmation ¶4.

Nowhere in his affidavit does Dr. Belby mention the limited nature of Dr. Lescale's practice, as a perinatal consultant, opting to view him through the eyes of a practicing obstetrician. This is an improper standard to apply to Dr. Lescale.

Education Law §6951

Dr. Belby's assertion that Dr. Lescale was responsible for the management and planning of Ms. McGinley's pregnancy and delivery because he was Ms. Jones' collaborating physician under Education Law §6951 is simply incorrect as a matter of fact and law.

Education Law §6951 provides, in pertinent part,

A midwife shall have collaborative relationships with (i) a licensed physician who is board certified as an obstetrician-gynecologist by a national certifying body or (ii) a licensed physician who practices obstetrics and has obstetric privileges at a general hospital licensed under article twenty eight of the public health law or (iii) a hospital, ... that provides obstetrics through a licensed physician having obstetrical privileges at such institution, that provide for consultation, collaborative management and referral to address the health status and risks of his or her patients and that include plans for emergency medical gynecological and/or obstetrical coverage. A midwife shall maintain documentation of such collaborative relationships and shall make information about such [*16]relationships available to his or her patients.

The totality of the evidence to support the assertion that Dr. Lescale was a collaborating physician is insufficient to raise a triable issue of fact as to whether Dr. Lescale served in that capacity. The only evidence cited to support that claim is Dr. Belby's opinion which is based on: (1) the testimony of Ms. Jones that she considered "any physician I'm consulting with is a collaborating physician", (2) Dr. Lescale's statement to Ms. Jones to "proceed with caution" and (3) Mr. Romanelli's statement that Dr. Lescale told he and Ms. McGinley that "everything looks great." This is insufficient, as a matter of law, to support the opinion rendered.

Dr. Lescale had no agreement with Ms. Jones to serve as a collaborating physician and Dr. Lescale denies that any such relationship existed. Supporting Dr. Lescale's assertion is the fact that Ms. Jones did not inform Ms. McGinley that Dr. Lescale was collaborating with her. Rather, Ms. Jones informed Ms. McGinley that she had a collaborative relationship with Dr. Garber. Further, the record is clear that Ms. McGinley was seen by Dr. Lescale on only four occasions, each for a discrete purpose unrelated to the obstetrical care or the planned method of Ms. McGinley's delivery.[FN21]

Additionally, there is no evidence to suggest that Dr. Lescale undertook to manage Ms. McGinley's pregnancy and there is no evidence that Ms. Jones ever asked Dr. Lescale to act as collaborating obstetrician. Other than the four visits for ultrasound and blood tests consistent with Dr. Lescale's limited practice, there is no evidence to indicate that Ms. McGinley sought or was provided with any instruction from Dr. Lescale. By contrast, Ms. McGinley saw Ms. Jones at least monthly and the two had significant discussions and correspondence concerning the proposed method of delivery. Indeed, as noted above, Ms. McGinley insisted on modifying the consent form to comport with her beliefs as to the safety of VBAC home delivery.

Where a plaintiff's expert's opinions are unsubstantiated or conclusory, the opinion is insufficient to create a triable question of fact. Ramsay v Good Samaritan Hospital, 24 AD2d 645 [2nd Dept 2005]. Hence, Dr. Belby's opinion that Dr. Lescale owed a duty to advise Ms. McGinley of the risks of VBAC home delivery is insufficient to raise a triable issue of fact. In Ramsay, unlike the instant case, defendant physician agreed to act as a back up to the defendant midwife. Their agreed upon guidelines and protocol provided that the nurse midwife was to contact the physician in the event of any difficulty with the childbirth. The midwife did not contact the obstetrician when difficulty was encountered, resulting in the baby's death from meconium aspiration. The Appellate Division affirmed Supreme Court's grant of summary judgment to the physician holding that the plaintiff's expert's affidavit was too conclusory in nature and lacked substantial basis in the record.

Like Ramsay, there is no evidence that Ms. Jones (or Mr. Romanelli) contacted Dr. Lescale to inform him of the onset of labor or called him for assistance when the fetal heart beat was not detected. Rather, Ms. Jones proceeded on her own. Nor is there any evidence that Dr. Lescale's opinion was sought on the issue of VBAC home delivery or preparations for that delivery. Indeed, Dr. Lescale was incapable of assisting in the preparations which Dr. Belby [*17]states are required because he lacked hospital privileges.

Dr. Lescale's statement to Mr. Romanelli that everything looked great and his salutary words to Ms. Jones to exercise caution are similarly insufficient to create a collaborating relationship between Ms. Jones and/or Ms. McGinley that would support the finding of a duty. Dr. Lescale's statement to Ms. Jones to "proceed with caution" is too general a statement to transmute him from consultant to manager of the pregnancy. It is akin to a parent who cautions a teen driver to "drive safely", a reminder to do an act already required, a mere salutary statement. Furthermore, a party cannot unilaterally foist an arrangement upon another to create an obligation on the other.

Plaintiff has not alleged that any of the tests that Dr. Lescale performed were improperly performed, interpreted or reported on to the referring medical provider, Ms. Jones. Thus, it is manifestly clear that Dr. Lescale fulfilled the limited duty he owed to Ms. McGinley of accurately reporting his test results to Ms. Jones. That fact is not changed by the tragic outcome of the attempt at VBAC home delivery.

Plaintiff Cannot Establish The Alleged Breach Was a Substantial Factor in Causing the Damages

Even assuming Dr. Lescale had a duty to inform Ms. McGinley of the risks of a VBAC home delivery, this matter must still be dismissed based on plaintiff's inability to make a prima facie case as to causation. To rebut Dr. Lescale's denial of causality, plaintiff was required to demonstrate, at minimum, that a question of fact exists between the alleged failure of Dr. Lescale to inform Ms. McGinley of the risks attendant to VBAC at home and the damages suffered. This requires admissible proof that had Ms. McGinley been informed of the risks of VBAC at home she would have heeded Dr. Lescale's warnings. There is no admissible proof to support that assertion. Further, the opinion assumes that Ms. McGinley was not aware of the risks, a fact that is inconsistent with her actions and writings.

The only proof that Ms. McGinley would have heeded any cautions from Dr. Lescale, and reversed her long standing aversion to medical intervention, comes from Mr. Romanelli. Mr. Romanelli speculates, but cannot testify, as to what Ms. McGinley would have done. To do so requires him to testify to the operation of another person's mind, specifically how Ms. McGinley would have responded to certain information.

Mr. Romanelli states:

"Had Dr. Lescale told Gia or I [sic] that she should deliver in a hospital, I would have insisted that Gia follow his advice and I am certain that Gia would have accepted his advice for the safety of her and our unborn son." Romanelli affidavit ¶5. (Emphasis added)

He also avers "My wife never told me that she would not deliver at a hospital. Gia preferred a home delivery, but she would have followed the advice of Dr. Lescale and delivered our unborn son at a hospital if she had been given that advice." Id. ¶ 12. (Emphasis added).

Notwithstanding their close personal relationship, Mr. Romanelli is legally incompetent to testify as to the operation of Ms. McGinley's mind. As the italicized language clearly indicates, Mr. Romanelli attempts to inform as to what Ms. McGinley would have done if given certain information. This is legally inadmissible and improper. As noted above, to defeat a motion for summary judgment, there must be competent evidence that creates an issue of fact. Khosrova , [*18]supra. No other competent evidence was presented to corroborate Mr. Romanelli's assertion that Ms. McGinley would have opted for a hospital delivery rather than attempt vaginal birth at home. As such, plaintiff failed to create a question of fact as to causation.

In addition, the overwhelming evidence in this case is that Ms. McGinley was determined to attempt VBAC at home. Indeed, when presented by Ms. Jones with information concerning the risks of VBAC that was contrary to her own beliefs, Ms. McGinley affirmatively rejected the information. Not only did she reject the consent form (and cautions therein) as written by Ms. Jones, she refused to take with her printed information recommended by Ms. Jones. Indeed, Ms. McGinley went so far as to insist that the consent form be revised to comport with her beliefs. Mr. Romanelli's statement that he and Ms. McGinley were not aware of the risks of VBAC home delivery may be true as to him, but is certainly not true for Ms. McGinley, who the records reflect was provided with information which she affirmatively disregarded or rejected.[FN22]

On this point the Court is cognizant that Ms. McGinley insisted that she not be informed of the baby's size for fear that it would inhibit her efforts at vaginal birth. Given the undisputed documentary proof of this fact, the prescriptions from Ms. Jones to Dr. Lescale which included the admonition that Ms. McGinley did not want to know the size of her baby, Dr. Lescale cannot be held accountable for not informing her of the risks of delivering vaginally after caesarean. It would be manifestly unfair and impermissible to heap responsibility for the horrific outcome on Dr. Lescale, who played no role in her obstetric care, when that outcome, as harsh as it sounds, was the direct result of Ms. McGinley's avoidance of relevant information.

In light of all of the evidence to the contrary, no reasonable jury could conclude that if advised by Dr. Lescale to avoid VBAC home delivery, Ms. McGinley would have changed her plan.

Ms. Jones' Decision to Send Emergency Workers Away Breaks Any Causal Connection

While the Court need not reach the issue, it should be noted that plaintiff's claims must also be dismissed because Ms Jones' decision, in the presence of Mr. Romanelli, to send the police away after the fetal heartbeat was initially not detected constitutes an intervening cause which severs any alleged causal connection between Dr. Lescale's alleged failure to inform Ms. McGinley of the risks of VBAC home delivery. At that point, the decision to continue with a home birth rested solely with Ms. Jones and Ms. McGinley. No evidence was submitted to indicate that Dr. Lescale was aware that labor or attempt at VBAC home delivery had begun, nor was he consulted about what should be done at the point difficulties were encountered. Well over two hours transpired between the onset of difficulty detecting the fetal heart rate and Ms. McGinley's collapse. Had Ms. Jones, Mr. Romanelli or Ms. McGinley proceeded to a hospital when the first sign of trouble appeared, Ms. McGinley would have been in a facility like the one Dr. Belby attests was required. The failure to act at the first sign of complications of the VBAC at home and the continued delay in acting breaks any alleged causal connection between Dr. Lescale's alleged negligence and the unfortunate events here.

Dr. Lescale had no duty to provide for or ensure a hospital delivery and, certainly, he was not consulted when things went awry. He cannot, therefore, be held accountable for the outcome.

Conclusion

This case is indeed a tragedy. More so, because Ms. McGinley might have spared herself and her unborn son an untimely death had she not been so intent on achieving the experience of vaginal birth. Unfortunately for all concerned, her fervent beliefs that the experience would enhance her life with her unborn son cost both of them theirs.[FN23]

Nevertheless, for the reasons stated, plaintiff's claims against the Lescale defendants must be, and hereby are, dismissed.

All other requests for relief are denied. All other arguments advanced by the parties have been considered and found not worthy of comment.

The foregoing constitutes the decision and order of the court.

Dated: February 15, 2017

E N T E R

Carmel, New York

__________________________

HON. PAUL I. MARX, J.S.C. Footnotes

Footnote 1:Among the exhibits provided are excerpts from various transcripts of examinations before trial instead of complete transcripts. This has made the Court's task of determining the underlying facts more difficult. Additionally, other than writing the page numbers on the bottom, counsel has not identified where one excerpt ends and another begins. Counsel is advised that this Court requires complete transcripts of examinations before trial to be submitted on motions.

Footnote 3:Various spellings of the word "caesarean" have been used by the parties and witnesses. For sake of consistency, the Court has used only this spelling.

Footnote 4:A doula is an individual trained to provide pre and post partum assistance and support to a woman delivering a child.

Footnote 5:Dr. Garber is not a defendant in this action. No evidence has been submitted on this motion that he was ever consulted concerning Ms. McGinley's planned VBAC home delivery.

Footnote 6:A nuchal translucency scan is an ultrasound used to assess a developing baby's risk of Down's syndrome as well as other possible chromosomal abnormalities.

Footnote 7:Because Ms. McGinley did not have a spleen, Ms. Jones also requested Dr. Lescale to offer any recommendations he might have for dealing with this presentation. The record does not indicate what recommendations, if any, Dr. Lescale made. Regardless, plaintiff's expert does not contend that the absence of a spleen played any part in the outcome here, nor does he contend that responding to this discrete inquiry created any duty.

Footnote 8:An alpha fetoprotein test (AFP) helps detect spina bifida (incomplete closing of the backbone which leaves a portion of the spinal cord exposed) and anencephaly (absence of a portion of the skull or scalp).

Footnote 9:Roughly 6.21 pounds.

Footnote 10:Marcrosomic refers to a baby larger than 4,000 to 4,500 grams. The baby was 4,799 grams by sonogram on September 28, 2011.

Footnote 11:A membrane sweep is a procedure which is designed to induce labor which has not occurred naturally.

Footnote 12:As noted above, Ms. Jones had a collaborative relationship with Northern Dutchess Hospital, located approximately 50 miles from Ms. McGinley's home.

Footnote 13:Because counsel provided only portions of the examinations before trial, the Court does not know what the substance of the telephone conversation with Mr. Romanelli was, nor what Ms. Jones did upon her arrival at the home. The transcript skips from page 242 to page 294, leaping from Ms. Jones' initial arrival to discussion about whether Ms. McGinley had urinated, resuming with questions and answers concerning whether Ms. Jones intended to perform a vaginal examination. Consequently, the Court has relied on the records from Ms. Jones' office for those details. Exhibit L.

Footnote 14:Although none of the parties have requested it, the action against the Jones defendants is dismissed due to the claims being barred by the bankruptcy discharge.

Footnote 15:Plaintiff served a redacted affirmation of the doctor, omitting his name, in his opposition papers. Plaintiff also provided the Court, for in camera use, an un-redacted affirmation revealing the doctor's name and providing a copy of his curriculum vitae. The original affirmation will be held in chambers for retrieval by plaintiff's counsel until March 10, 2017, following which it will be discarded. The Court has used a fictitious name of Marcus Belby for ease of reference.

Footnote 16:The records reflect a visit on March 9, 2011, not March 16, 2011.

Footnote 17:TOLAC is an acronym for Trial of Labor After Caesarean.

Footnote 18:Dr. Belby's assertion that the consent form was drafted by Ms. Jones is factually incorrect. As noted above, Ms. McGinley modified the consent form to comport with her own beliefs.

Footnote 19:Ms. Jones testified that "any physician I'm consulting with is a collaborating physician" (Exhibit M, p22). She also testified: Q — With respect to Gia McGinley, were there doctors that you considered to be a collaborating physician? A — Well, I did refer her to Dr. Lescale for ultrasounds and consultation. Id., p23

Footnote 20:In an apparent error, plaintiff states at paragraph 2 of his affidavit: "On January 28, 2011, I attended the final office visit with Dr. Lescale." The visit in question was September 28, 2011.

Footnote 21:The record reflects that Dr. Lescale was only one of several physicians who Ms. Jones recommended Ms. McGinley consult for perinatal testing. The availability of several choices indicates that there was no arrangement between Ms. Jones and Dr. Lescale to act as a collaborating physician.

Footnote 22:Ms. McGinley, of course, had a right to elect to accept the risks of her preferred method of delivery.

Footnote 23:It should not go unsaid that the tragedy extends to Dr. Lescale who has been compelled to defend this action since 2013 and who was wrongly accused of causing or contributing to these deaths. The Court does not opine as to whether Ms. Jones would have borne liability had the claims against her not been discharged.