Brown v Wilson Med. Ctr.

[*1] Brown v Wilson Med. Ctr. 2004 NY Slip Op 51587(U) Decided on October 27, 2004 Supreme Court, Monroe County Siracuse, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 27, 2004
Supreme Court, Monroe County

Chelsea Brown, an infant, by her parents and natural guardians Atawa Brown and Derrick Brown, and Atawa Brown and Derrick Brown, individually, Plaintiffs,

against

Wilson Medical Center, David Ke-Hui-Tuan, Philip B. Ivey, Jeffrey Gordon, Maria Bizzo, Patricia Generelli, Patricia Newcomb, Anne Marie Stirlin, Gary Nicholson, Denniz Zoulnoun, James W. Kendig, Lisa Taylor and Rochester General Hospital, Defendants.



2002/4546



Shandell, Blitz, Blitz & Bookson, LLP (Bert A. Blitz, of counsel), attorneys for plaintiffs

150 Broadway, 14th Floor

New York, New York 10038

Harris Beach, LLP (Sue S. Tebor, of counsel), attorneys for defendants Generelli, Newcomb, Stirlin, Nicholson, Zoulnoun, Taylor, and Rochester General Hospital

99 Garnsey Road

Pittsford, New York 14534

Ward Norris Heller & Reidy LLP (Meghan M. DiPasquale, of counsel), attorneys for defendant James Kendig)

300 State Street

Rochester, New York 14614

Andrew V. Siracuse, J.

However complex the facts in this medical malpractice case, they cannot be any more tortuous than the procedural difficulties the court has experienced. The action arose out of a caesarian delivery at defendant Rochester General Hospital in 1997. The mother was attended at the hospital by her doctors from defendant Wilson Medical Center, and shortly after her daughter Chelsea's birth Chelsea was transferred to Strong Memorial Hospital for intensive neonatal care. She survived but suffered brain damage. At issue before the court is the conduct of Medical Center and Hospital staff from the hours between Mrs. Brown's admission to Rochester General, with her pregnancy in its forty-second week, until her daughter's transfer. The plaintiffs' particular concern is the timing of the decision to perform a caesarian section. As a glance at the caption reveals, the plaintiffs sued a large number of doctors and other medical personnel. They may be divided into two large groups: the Rochester General Hospital and its staff, represented here by Sue Tebor, and the Wilson Medical Center and its staff, represented by the firm of Brown & Tarantino. Ms. DiPasquale represents Dr. James Kendig, who at the time was head of neonatology at Rochester General Hospital.Although the action was commenced in 2002 and discovery proceeded with reasonable speed, the court did not become involved in this case until the end of 2003. In December 2003 Fredrick Schulman, for the plaintiff, wrote the court to state that plaintiffs had completed all the depositions that they wished to take and were ready to certify the case as being ready for trial. Mr. Schulman asked in that letter if the court wished a Note of Issue filed.Defendants' attorneys then contacted the court and explained that they were experiencing difficulty obtaining adequate bills of particulars from the plaintiffs. The court decided to meet with the attorneys. At that meeting Mr. Schulman presented amended bills of particulars, one for each of the thirteen defendants.These were sizable documents, but they achieved their bulk through an over-indulgence in boilerplate and photocopying. All the documents were identical. Each one listed every possibility of malpractice imaginable, in detail. However successful they may have been in sketching out the entire range of obstetrical misconduct, they utterly failed as bills of particulars, which is by definition to particularize the allegations against individual defendants.Such, at any rate, was the position of the defendants, and it was one with which the court was compelled to agree. The plaintiffs agreed to provide further and more specific bills. This is an agreement which they have only partially honored.At the same conference the parties and the court discussed the defendants from Rochester General Hospital. It was these defendants' [*2]position that all treatment decisions in the case had been made by Dr. Tuan and other doctors from the Wilson Medical Center, and that their own involvement with Mrs. Brown was sufficiently tenuous as to insulate them from liability. Dr. Kendig's attorney added that her client had not in fact been in the hospital during the hours when Mrs. Brown was a patient there.Plaintiffs' counsel agreed verbally that the case ought to be discontinued as against most if not all of these defendants. He had two major concerns. If these practitioners were not to be parties, they would not be available at trial to explain the often cryptic notations they made on the medical records, and he first wanted affidavits of explanation which also described their actions with respect to the Browns. In addition, he wanted the Hospital to ensure that the former defendants would attend if at a later date plaintiffs decided to call them as witnesses.The defendants expressed their willingness to provide affidavits explaining their records and outlining their activities on the day of Chelsea Brown's birth, and offered to do whatever was possible to ensure the availability of testimony. At the conclusion of the conference all parties gave assurances that this issue was resolved.This turned out not to be the case. The affidavits were supplied by the end of June as promised, but the hospital admitted that most of the individual defendants were no longer employees and had moved out of New York state and were thus out of subpoena power. This fact had been discussed at the conference. Even though all defendants expressed a desire to cooperate fully, the plaintiffs refused to sign the stipulations of discontinuance that had been provided in accordance with the agreement.As noted above, the plaintiffs did supply additional bills of particulars for some of the defendants, containing some specific claims as well as further repetition. These documents also claimed that hospital staff were vicariously liable for others' actions. At the same time the parties engaged in further depositions. At one such deposition, in August 2004, defendants' counsel once again asked plaintiffs' counsel if he was willing to sign the stipulations, and he told her that he would not and that she should make her motion for dismissal.The Rochester General Hospital and its staff defendants moved for summary judgment on October 7, 2004. The return date was set for October 21, two weeks later. Dr. Kendig moved for dismissal eight days later. (Attorneys for the Wilson Medical Center defendants have not been involved in these motions.) Mr. Blitz called chambers requesting an adjournment, telling the court that he needed time to obtain an expert's affidavit. The court denied this request, explaining that the motion was timely under CPLR rules and that the issues were ones that had been discussed for many months. Oral argument was therefore held on October 21. The court now rules that defendants Kendig, Zoulnoun, Stirlin, Nicholson and Generelli are entitled to summary judgment dismissing the [*3]complaint. As to the remaining defendants the motion is denied without prejudice.Before discussing each defendant's liability the court points out that the movant in a summary judgment motion carries a substantial burden. In medical malpractice cases an expert's affidavit showing compliance with the standard of care is an all-but-literal necessity. The defendants err, though, if they assume that this burden is met by the submission of any expert's affidavit stating that the plaintiff received proper care. The widely-cited case of Alvarez v Prospect Hosp. (68 NY2d 320) cannot be so extended; merely conclusory affidavits that do not consider the specific facts and allegations will not entitle a defendant to summary judgment (see, e.g., Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Brosnan v Shafron et al., 278 AD2d 442).To begin with Kendig, the simplest of the cases: Dr Kendig was not in the hospital, and although he signed the hospital record in a few places he has explained under oath that his signatures were added later, in accordance with standard hospital procedure. (This practice presumably serves the purpose of keeping the chief of neonatology abreast of the cases being treated.) Contrary to the plaintiffs' arguments, Dr. Kendig is not arguing that "the record isn't the record;" he is explaining what the record means and how it is assembled and used. The recollection of those present at the hospital, as well as the records themselves, show unanimously that Dr Kendig had no involvement with this case. His signature on a few notes, which is in reality a counter-signature, does nothing to challenge this conclusion. The burden is on the plaintiff to come up with some positive proof in admissible form that the records are wrong and the signatures do not mean what Dr. Kendig says they do. They have not met this burden.Dr. Zoulnoun made notes about discussions with Dr. Tuan—the Wilson doctor in charge of the case—with respect to an attempt to induce labor and on patient discomfort and fetal heart rate. Her notes are entirely centered on discussions and show no independent activity, decisions or reporting or reading of test results on Dr. Zoulnoun's part. An affidavit to this effect was submitted to the plaintiffs on June 29, 2004. Counsel have neither commented on it or attempted to rebut it, and the court must conclude that Dr. Zoulnoun did nothing to affect the care Mrs. Brown received. Her motion should be granted.The cases of Doctors Stirlin and Nicholson resemble each other closely. Both saw Mrs. Brown very briefly, within a few hours of her admission. The record shows no signs of difficult labor at that time. Again, this information was provided in June, and plaintiffs have presented nothing which shows that Mrs. Brown was experiencing symptoms which these doctors failed to note or report or any action or reliance by others on tests which they performed. The last of their notes was many hours before the caesarian section was contemplated. Their motion must also be [*4]granted.A fifth defendant, Dr. Generelli, assisted Dr. Tuan in the caesarian section. There is no allegation that the surgery itself was done incorrectly, however; only that it was delayed. The decision to perform the caesarian was not Dr. Generelli's; it was Dr. Tuan's. There is no reason to hold her responsible absent a claim that there was malpractice committed during the surgery itself. Plaintiffs' insistence that they must now explore "what she did do, what she did not do, and the extent to which she assisted this major operative procedure" is misplaced, since the conduct of the surgery is not at issue. Dr. Generelli, too, is entitled to a dismissal of the complaint.The situation is different with respect to the two remaining movants, Doctors Taylor and Newcomb. Dr. Taylor, who has been deposed, oversaw the taking of the newborn Chelsea Brown's Apgar scores. Her explanations for the disparity between the high Apgar scores and the almost immediate transfer of Chelsea to neonatal intensive care are reasonably convincing, but the court cannot tell at this stage if they are correct and how likely it is that the Apgar scores were wrong. The expert affidavit on this point is conclusory only, and considering the drastic nature of the remedy of summary judgment, the court would rather err on the side of caution. There remains a question of fact as to the Apgar scoring, so the case must continue against Dr. Taylor.Dr. Patricia Newcomb reviewed a fetal monitoring slip and appears to have conveyed information from her review to Dr. Tuan. While she would not have made treatment decisions, it is not clear from the record if she might not have taken the responsibility to read test results and upon whose evaluation Dr. Tuan relied. For reasons similar to those in the previous paragraph, the court must deny Dr. Newcomb's motion.Because two of its employees remain defendants, Rochester General Hospital must also remain in the case.Plaintiffs' papers contain a cross-motion for a video deposition of their own expert. This is couched in unusual terms procedurally, and the court is not certain if all the attorneys fully understand it. The court construes this "motion"as an offer to produce one's own expert for deposition. If the parties accept this offer within 20 days their own experts may be deposed (see CPLR 3101 [d] [1] [I]; note that accepting the offer does not schedule these other depositions, it simply makes them permissible). This is a different procedure from the taking of a witness's trial testimony beforehand and recording it for use at trial, and the parties should be careful to keep these two distinct. Nothing about either procedure requires the court's intervention, however.The court's decision may be summarized as follows: summary judgment is granted to defendants Kendig, Zoulnoun, Stirlin, Nicholson and Generelli, with one bill of costs for each defendant. All other motions are denied. Ms. Tebor may prepare the order.[*5] DATED: Rochester, New York__________________________ October 27, 2004Andrew V. Siracuse, J.S.C.