McKenzie v Clarke
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McKenzie v Clarke 2009 NY Slip Op 33406(U) February 17, 2009 Supreme Court, Kings County Docket Number: 9370/06 Judge: Randolph Jackson Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] 370/2006 Decision and order .....dated 9/8/10 ' Page 29 of 42 .. ~ o.ailon n order moUan & ...,,1<Jtion for !J/J n Genled llc.,mollon pp (Pegt 1 of: 8) At an IAS Term, Part 11 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New YOik, on the 11" day of February. 2009. PRESENT: . ; HON. RANDOLPH JACKSON, Justice. - - - - - - - - - •• - - - - - - - • - - - - •• • - - - - • - • - -X MONBB McKENZIE, an infant by her mother and Index No. 9370/06 natural guardian, SIMONA GR.A.HAM, Plaintiffs, - againstHEATHER CLARKE, ET AL,, Defendants. •T~~------· - --- - --------------- - -- -X The following p!ij!ers numbered 1 to 13 r;ad on this motion: Pt.Pers Numbered Notice ofMotion/Order to Show Cause/ Petition/Croas Motion and Affidavits (Affirmations) Annexed'--------- Opposing Affidavits (Affirmations)_ _ _~--Reply Affidavits (Affirmations),_ _ _ _ _ _ _ __ 1- 4 5-7 9·11 12 13 _ _ ___,Affidavit (Affinnation) _ _ _ _ _ __ Other Papers__~~~----~--~~-~ Upon the foregoing papers, the motion by defendant Louis D. Camilien, M.D. (Dr. CamHien) for an order, pursuant to CPLR 3212, granting summary judgment dismissing all claims and cross claims against him and the cross motion by defendant ~agaraj Gabbur, M.D. (Dr. Gabbur) for an order granting summary judgment dismissing the complaint against him are denied. At approximately 11:55 p.m. on July 14, 1996, the plaintiff mother, Simona Graham, who was pregnant at the time, presented to SUNY Downstate Medical Center with complaints of ,. [* 2] 370/2006 Decision and order ..... dated 9/8/10 Page 30 of 4:2° • I • r!Y2eo&Declllon oni:lcmer-m h -<naimnraf SIJ ••de!Wd ett.,ll'Qllon P11 (P11ge2of 8) ,, ! abdominal pain. At 1:30. a.m. on the next morning, Dr. Camilien made the decision to perform a Cesarean section. The infant-plaintiff was delivered at approximately 2 a.m. According to the complaint herein, Dr. Camilien and Dr. Gabbur (a third-year resident) failed. among other things, to follow good and accepted medical practices and, as a consequence, the infant-plaintiff, Monee McKenzie, suffered brain damage, intrauterine growth retardation, hydrocephalooole and severe !earning disabilities. In his motion, Dr. Camilien asserts that he did not deviate from the standard of care which was required of him. For example, he perfonned a timely Cesarean section and immediately delivered the infant-plaintiff. Although he concedes that the infant-plaintiff has "multiple abnormalities," he characterizes them as "congenital abnonnalities associated with developmental anomalies•., rather than as the result of any malpractice on his part. In support of his contentions, he 1111bmits the affirms.tionB of Dr. Nancy Wolfert K.irshenballtn (Dr. Kirshenbs.um), an obstetrician/gyneoologist. and Dr. Bany Kosofsky (Dr. Kosofsky), a neurologist. According to Dr. Kirschenbaum, Ms. Graham was appropriately monitored and evaluated by the medical staff at the hospital and, in light of the decelerations on the fetal heart monitor strips, Dr. CamiHen1s decision to deliver the infant by Caesarean section at l: 30 a.m. was likewise appropriate. In his affirmation, Dr. Kosofsky opines that none of the infant-plaintiffs injuries were caused by pr. Cattriliett's care and treatment and that they were, in fact, congenital in nature. In particular, Dr. Kosofsky notes that the inflltlt~plaintiff' s APGAR scores were 7 at one minute and 8 at five minutes and that a blood test done on the infant's umbilical cord indicated a normal gas pH reading of 7.2. Given that the infant blood gases were 0 norma1," Dr. Kosofsky opines that she did not suffer a hypoxic event. 2 Printed: 7/25/ 2016 [* 3] 370/2006 Decision and order ..... dated 9/8/10 Page 31 of 42 In his cross motion, Dr. Gabbur argues that the cord blood gBS analysis prov1des an objective measure of the neonatal condition at birth 8Ild the infant's noIIllal umbilical cord blood values "virtually eliminate any diagnosis of significant hypoxia or birth asphyxia.,, Sinoe the infant did ~ot suffer from oxygen deprivation while in~ and defendants are not responsible for her congenital defects. Dr. Gabbur likewise maintains that the complaint against him should be dismissed. Dr. Gabbur submits the affinnation of Dr. Leonard Benedict to support his contentions. Dr. Gabbur further contends that plaintiff has not demonstrated that there was any independent act of negligence on his part: rather, he asserts that he merely followed the orders of the attending physician, Dr. Camillien. In opposition to the motion and cross motion, plaintiff chata0terizes the affinnations submitted by defendants as "conclusmj1 since they alJegedly ran to address each of her claims of departures from good and accepted medical practice, including , but not limited to, "the asphyxia during delivery which resuJted in [the] infant-plaintiff's developmental delays/' According to plaintiff, in the elllet'gency room she came under the care of Dr. Gabbur, a third-year resident, and he applied a fetal heart monitor which showed "severe variable decelerations" in the infant's I I ! I heartbeat. Such decelerations were also noted by Dr. Camilicn. Plaintiff asserts that she remained in the obstetrical triage department (as opposed to the labor and delivery roo~) for 1 y; hours and that, during this time period, the infant-plaintiff "had prolonged exposure to a hostile intrauterine environment greatly increasing the risk of hypoxia and brain damage which ultimately occurred in this case.~· Plaintiffcharges that the affirmations proffered by defendants are without merit because they do not address the delay in performing the Caesarean section and were not based upon examinations of the infant~plaintiff. With respect to the cross motio~ plaintiff asserts that it is 3 Printed: 7/25/2016 [* 4] Page 32 of 42 r3~0/2006 D~cision and order .. ... dated 9/8/10 ! I I . . '13JICl'lOOB o.chlor! llllCI lllllllr mallal a. JHllOl!ai ror SIJ ••denied ete.,malion pp (Piii!• 4 of. 81 untimely since it was filed more than 60 days after she filed her note of issue. She also faults Dr. Gabbur because the cross motion did not specify 1'the time and place of the hearing, the supporting I papen upon which it is based, the relief demanded and the grounds therefor." Moreover, plaintiff I argues that Dr. Gahbur was "significantly involved in the delivery and labor treatment' rendered to I I I ! her since he performed a pelvic examination, observed fetal decelerations and recommended her admission to the hospital. In opposition to the motion and cross motion, plaintiff submits three affinnations, two of which have the names of the B.ffiants redacted. In the affirmation of a New I Jersey obstetrician/gynecologist, the affiant states that the APGAR scores "were not consistent with i I the fetal condition described in the medical records" and that it was a departure from good and ! accepted medical standards to have waited 1Y2 hours before taking plaintiff to the delivery room. i The physician also pointed out that an amniotic tluidinsufficiencywas noted in the medical records, which insufficiency incressed the likelihood of an oxygen deprivation. In the affirmation ofa South Carolina physician, the doctor asserted that a base excess value of ~9 was documented after the umbilical cord blood gas test was conducted, which "is indicative of metabolic acidosis from an oxygen deficit,., and, therefore, he opined that "an hypoxic, anoxic event occurred to infant Monee during delivery that is proximately related to {her] neurological deficits." The affinnation of Dr. Daniel Adler, a pediatrician, descnbes the permanent neurological disabilities of the infant, including "motor delay, fine and gross motor in coordination, intrauterine growth retardation and hydrocephalus." In his reply papers1 Dr. Camilic:n maintains that the affirmations of plaintiff's experts are "contrary to the objective medical record,11 including the APGAR scores and the 7.21 pH result from the cord blood gas. With respect to plaintiff's suggestion that the APGAR scores were incorrect, :!OONJIMCl:l!NZle> (ccnl) 4 Printed: 7/25/2016 [* 5] 3:0/2006 D~cision and order ..... dated 9/8/_1O r 1 I j I Page 33 of 42 \)3~ ~:U ordornlOUon & )1-mOlkin taSIJ are dellilld etc.,mouon pp(Pll<J' ~ore> ' . given the infant~ s heart nite and grayish color at birth. Dr. Camillien, s attorney asserts that "babies who a.re born somewhat depressed at birth ... can come up quickly after birth and often within the I first minute, especially with the correct interventions by the medical staff as we have in this case." I The attorney also notes that, u[w]hile the base excess and partial pressure findings relied upon by I i plaintiffs counsel and plaintiffs experts were important for the clinicians treating the infant I I plaintiff after her birth •• . , the most important finding, in retrospect, that is used by a pediatric neurologist itt detennining causation is the PH,9' which, in this case, was "normal.t' In reply. Dr. Gabbur asserts.that the cross motion should be considered timely because 11 timely motion for summary judgment was made which seeks "nearly identical" relief. According to Dr. Gabbur, there is agreement among all the parties that the infant experienced considerable congenital conditions in utero and he aascrts that plaintiff has failed to refute the assertion that the infant's medical conditions were not due to a lack of oxygen. Dr. Gabbur relies upon the APGAR scores and cord blood values to establish that there was no reduction in oxygen to the infant and that the Caesarean section was done before any damage to the infant could occur. Initially, the court notes that it may consider an untimely cross motion for summary judgment made after the expiration of the statutory ptriod (or, in this case, after the 60-day period set by Rule 13 of the Kings County Uniform Civil Term Rules), even in the absence of good cause, where a timely motion for summary judgment was ma.de seeking relief nearly identical to that sought by the cross motion (see Ftlannino v Triborough Bridge and Tunnel Auth.~ 34 AD3d 280, 28 1 [2006); Fahrenholz v Secw-ity Mut. Ins. Co., 32 AD3d 1326, 1328 {2006]). Here, the cross motion concerns the same issue ofcausation raised by the motion of Dr. Camilien and, therefore, it will be considered on its merits. 5 Printed: 7125/2016 [* 6] 370/2006 Decision and order ..... dated 9/8/ 1O f I ' Page 34 of 42 . '. ~~·and Mlor-& x....otionlorSIJ . . aenied4te.,motlonpP C"-ie6ol8) : .• In order to establish the liability ofa physician for medical malpractice, a plaintiff must prove that the physician deviated from good and accepted medical practice and that the departure was a proximate cause ofthe plaintiff's injuries (see e.g. Lovettv Interfaith Medical Center, S2 AD3d 578 [2008]; Roca v Pere/, 51 AD2d 757, 758 [2008]). Consc:quently, on a motion for summary judgment in a medical malpractice case, the defendant physician must come forward with evidence in admissible fonn establishing, prima facie, either that he or she did not deviate from good and accepted medical practice or that. if there was such a departure, it was not the proximate cause of the plaintifrs. injuries (see e.g. Germaine Y Yu, 49 AD3d 685. 686 [2008]; Rebozo v Wilen, 41 AD3d 457, 458 (2007). Dr. Camilien and Dr. Gabbur have demonstrated, prim a facie, th~t they did not depart from good and accepted medical practice and that nothing they did or failed to do proximately caused the infant-plaintiffs injuries. AJi export affidavit submitted in opposition to a defendant physician's motion for summary judgment must aver that the c:lefen&nt departed from good and accepted medical practice and that the departure was a competent producing cause oft.he injury (see Domaradzki v Glen Cuve Ob/Gyn Assoc., 242 AD2d 282 [1997]). General and conclusory allegations of medical malpractice, however, \lllsupported by competent evidence tending to establish the essential elements ofmedical malpractice, are insufficient to defeat the motion (see Thompson. v Omer, 36 AD3d 791, 792 [2007]). H~, the affirmation of the South C~rolina pediatrician has raised an issue of fact as to whether the infant-plaintiff wa8 deprived of oxygen and whether her physical appearance and medical measurements should have alerted dcfcndanm to her condition. The physician cites a base excess value of ~9, as well as the infant's color and heart rate, as indicative of an oxygen deficit. Although Dr. Cemilien seekB to dismiss the ..base excess and partial pressure fmdings relied upon 6 Printed: 71 25/2016 [* 7] o 370/2006 Decision and order ..... dated 9/8/ 1 I Page 35 of 42 ' ' B3Tl!/21Xll DIClltlGn rod arllar roauan & ~-roollon tor S/J .,. denied etc.,mollon Pl' (Page 7 or Bl f '. ' • . ·- by [plaintiff]" as not being as important as the pH me~urement, that medical conclusion is put forth by Dr. Camilien,s attorney, rather th.an a medical ex.pert. Even if that opinion had been offered by an expert. this court would nevertheless find that the papers submitted herein present "a credibility battle between the parties' experts" (Barbuto v Winthrop Univ. Hosp., 305 AD2d 623, 624 [2003] (internal citations omitted]) and would warrant denial of the motion and cross motion (see 7.arzana v Sheepshead Bay Obste:trics & Gynecology, 289 AD2d 570, 571 [2001]). The foregoing constitutes the decision and order of this court. I ENTER, '· • .. . \1 1• f • .. I \ .. ""· · .. ~! -~ . .. - i 7 Printed: 7/25/2016
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