Waring v Matalon

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Waring v Matalon 2016 NY Slip Op 32516(U) September 27, 2016 Supreme Court, Suffolk County Docket Number: 11-10248 Judge: W. Gerald Asher 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] SHORT FORM ORDER INDEX No. 11-10248 CAL. No. 15-02121MM SUPREME COURT - STATE OF NEW YORK l.A.S. PART 32 - SUFFOLK COUNTY PRESENT: Hon. W. GERARD ASHER Justice of the Supreme Court MOTION DATE 4-21-16 ADJ. DATE 6-7-16 Mot. Seq. #002 -MG #003-MG #004-MG ---------------------------------------------------------------)( KA YMARIE WARING, Plaintiff, I THE JACOB D. FUCHSBERG LAW FIRM, P.C. Attorney for Plaintiff 500 Fifth Avenue, 45th Fl. New York, New York 10110 PERRY, VAN ETTEN, ROZANSKI& PRIMAVERA, LLP - against- Attorney for Defendant Matalon, MD 538 Broadhollow Road, Suite 200 Melville, New York 11747 MARTIN MATALON, M.D., JONATHAN GOLDSTEIN, M.D., RANDI M. ROTHSTEIN, M.D., ELIZABETH SCHMIDT, M.D., SOUTHSIDE HOSPITAL, NORTH SHORE UNIVERSITY HOSPITAL - LONG ISLAND JEWISH HEALTH SYSTEM, INC., and NORTH SHORE UNIVERSITY HOSPITAL, Defendant. HEIDELL, PITTONI, MURPHY & BACH, LLP Attorney for Def't Southside, NSUH-LIJ & NSUH 1050 Franklin Avenue Garden City, New York 11530 ! KELLY, RODE & KELLY Attorney for Defendant Goldstein, MD 330 Old Country Road Mineola, New York 11501 ---------------------------------------------------------X Upon.the following papers numbered l to _Jj_ read oo these motions for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers 1 - 15; 16- 33; 34 - 49 ; Notice of Cross Motion and supporting papers_; Answering Affidavits and supporting papers 50 - 67 ; Replying Affidavits and supporting papers 68 - 69; 71 - 73; 74 - 75 ; Other _ _; (and after heating eonmel in snpport and opposed to the 1notio11) it is, ORDERED that the motion by defendant Martin Matalon, M. D., for summaryjudgment in his favor dismissing the complaint asserted against him is granted; and it is further ORDERED that motion by defendants Randi M. Rothstein, M.D., E lizabeth Schmidt, M.D., Southside Hospital, North Shore University Hospital-Long Island Jewish Health System, Inc., and North Shore University Hospital for summary judgment in their favor dismissing the complaint asserted against them is granted; and it is further [* 2] Waring v Matalon Index No. 10248-1 1 Pagc2 ORDERED that the motion by Jonathan Goldstein, M.D., for summary judgment in his favor dismissing the complaint asserted against him is granted. Plaintiff commenced this action to recover damages as a result of alleged medical malpractice that caused her to prematurely deliver her daughter, Corinne Angelica Rose-Mcintosh, stillborn. Plaintiff also alleges lack of in fom1ed consent for an emergency Cesarean section at North Shore University Hospital , and negligence in hiring and supervising medical personnel. A related action, brought under index number 19768-12, which alleged the same causes of action against additional defendants, was consolidated with this action. Discovery has been completed and a note of issue filed. Defendant Dr. Martin Matalon moves for summary judgment in his favor dismissing the complaint asserted against him on the ground that the baby was born alive and, therefore, no action for a stillborn birth can he maintained (Broadnax v Gonzalez, 2 NY3d 148, 777 NYS2d 416 (2004]). In support of the motion he submits, among other things, the summons and complaint under index number 19768-1 2; the answer, demand for a verified bill of particulars and amended verified bill of particulars under index number 1024811 ; the deposition transcript of plaintiff, Dr. Yevgeniya Pozharny, and Devon Macintosh, the baby's father; his own deposition testimony; medical records from North Shore University Hospital; the baby's birth cc1tificatc; and an affirmation of defendant Dr. Randi M. Rothstein. Defendants Or. Randi M. Rothstein, Dr. Elizabeth Schmidt, Southside Hospital, North Shore University Hospital-Long Island Jewish Health System, Inc. , and North Shore University I lospital (collectively referred to as the hospital defendants) move for summary judgment in their favor dismissing the complaint on the same ground. The hospital defendants also contend that they cannot be held liable for the acts or omissions of plaintiffs private attending physician, that North Shore University I lospital acted in accordance with good and standard accepted medical practice, that the claim for lack of informed consent must be dismissed, as no treatment was rendered by North Shore University Hospital-Long Island Jewish Health System, Inc., and that the negligent hiring claim must be dismissed. In support of the motion they submit an expert affirmation of Dr. Frank A. Manning, the summons and complaint under index number 10248-11; the answer and amended answer under index number 19768-12; the verified bill of particulars; plaintiff's medical records from Southside Hospital and North Shore University Hospital; the birth certificate; the deposition transcripts of plaintiff, Dr. Martin Matalon, Dr. Jonathan Goldstein, and Dr. Yevgeniya Pozharny; the note of issue; the so-ordered stipulation of consolidation, dated March 5, 2013; the affirmation of Dr. Rothstein; and the affidavit of Mercedes Toro of Northwell Health, Inc. Defendant Dr. Jonathan Goldstein moves for summary judgment in his favor dismissing the complaint asserted against him, relying on the holding in on Broad11ax. In support of the motion he submits the pleadings, plaintiffs medical records, the affirmation of Dr. Rothstein, the birth certificate, and the death certificate. ln opposition to the motions, plaintiff submits the pleadings in both actions; an expert affirmation of a pediatric neurologist; an expert affirmation of an obstetrician and gynecologist; plaintiff's medical records; the deposition transcripts of plaintiff, Dr. Martin Matalon, Dr. Jonathan Goldstein, and Dr. Yevgeniya Pozharny. Plaintiff does not oppose dismissal of the claims against defendants Dr. Randi M. [* 3] Waring v Matalon Index No. I 0248-1 l Page3 Rothstein, Dr. Elizabeth Schmidt, and Long Island Jewish l Iealth System, Inc. Plaintiffs primary arguments in opposition to the motions are that the baby was "legally and clinjcaJly dead" at the time of delivery, that defendants' experts do not opine that they did not deviate from accepted standards of medical care, and that her medical experts raise triable issues of fact. To make a prima facie showing ofentitlement to summary judgment in an action to recover damages for medical malpractice, a defendant must establish through medical records and competent expert affidavits that it did not deviate or depart from accepted medical practice in the treatment of the plaintiff or that it was not the proximate cause of plaintiff's injuries (see Castro v New York City Health & llosps. Corp., 74 A03d 1005, 903 NYS2d 152 [2d Dept 2010]; Deutsch v Chaglassian, 71 AD3d 718, 896 NYS2d 431 f2d Dept 201 O]; Plato v Guneratne, 54 AD3d 741, 863 NYS2d 726 [2d Dept 2008J; Jones v Ricciardelli, 40 A03d 935, 836 NYS2d 879 (2d Dept 2007]; Mendez v City ofNew York, 295 A02d 487, 744 NYS2d 847 f2d Dept 2002]). To satisfy this burden, the defendant must present expert opinion testimony that is supported by facts in the record and addresses the essential allegations in the bill of particulars (see Roques v Noble, 73 AD3d 204, 899 NYS2d 193 fl st Dcpt201 OJ; WardvE11gel, 33 AD3d 790, 822 NYS2d 608 r2d Dept 20061). Conclusory statements that do not address the allegations in the pleadings are insufficient to establish entitlement to summary judgment (see Garbowski v lludson Val. Tlosp. Ctr. , 85 AD3d 724, 924 NYS2d f2d Dept 2011 J). failure to demonstrate a prima facie case requires denial of the summary judgment motion, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Ho~p. , 68 NY2d 320, 5088 NYS2d 923 [1986]). Once the defendant makes a prima facie showing, the burden shifts to the plaintiff to produce evidentiary proof in admissible form sufficient to establish the existence of triable issues of fact which require a trial of the action (see Alvarez v Prospect IIosp., supra; Kelley v Kingsbrook Jewish Med. Ctr. , 100 !\D3d 600, 953 NYS2d 276 r2d Dept 20121; Fiorentino v TEC Holdings, LLC, 78 AD3d 911 NYS2d 146 f2d Dept 20 IO]). Specifically, in a medical malpractice action, a plaintiff opposing a motion for summary judgment need only raise a triable issue of fact with respect to the clement of the cause of action or theory of non liability that is the subject of the moving party's prima facic showing (see Bhim v Dourmashkbt, 123 AD3d 862, 999 NYS2d 471 [2d Dept 2014]; Hayde11 v Gordon, 91 AD3d 819, 937 NYS2d 299 [2d Dept 20121; Stukas v Strei/er, 83 AD3d 18, 918 NYS2d 176 (2d Dept 2011]; Scflichma11 v Yasmer, 74 AD3d 1316, 904 NYS2d 218 (2d Dept 201 O]). Here, if the infant was born alive, and plaintiff has no independent injury to herself, she could not recover for emotional distress under the authority of Broadnax v Gonzalez, 2 NY3d 148, 777 NYS2d 416 (2004), and Sheppard-Mobley v King, 4 NY3d 627, 797 NYS2d 403 (2005), under the theory that the infant can maintain her own claim. Plaintiff testified and the medical records show that on November 5, 20 I 0, at approximately 2:00 p.m., plainti ff, who was then age 3 7, and 26 weeks pregnant, called her obstetrician/gynecologist Dr. Maitin MataJon who had been treating her since August 27, 2010. Plaintiff had taken her blood pressure at her work as a nursing administrative assistant and obtained a blood pressure of230/1 10. Dr. Matalon advised plaintiff to go to Southside I IospitaJ where he was an attending physician in the Southside Hospital Department of Obstetrics and Gynecology. At 2:47 p.m., plaintiff was admitted to Southside I lospital, her blood pressure at admission was 230/128. She complained of seeing white spots before her eyes, swelling [* 4] Waring v Matalon Index No. 10248-11 Page 4 in her face and feet, headache, slurred speech and nausea. Dr. Matalon called in Dr. Goldstein and Dr. Kadjifici. Plaintiffwas diagnosed with pregnancy-induced hypertension and possible preeclampsia. At 7:25 p.m., plaintiffs urine was positive for protein (500 mg/di). Sometime prior to 7:10 p.m., plaintiff saw maternal fetal medicine physician Dr. Goldstein. Her liver functioning, platelets and hematocrit were normal , and initial lab results were "essentially normal. " At 9:00 p.m., a 24-hour urine protein test was ordered. After two TV pushes of Labetalol, her blood pressure was dropping to the 180s over 90s. Dr. Goldstein recommended a transfer to ICU for Labetalol drip. On November 6, 20 I 0, at 8:24 a.m. , a urine test was positive for protein (500 mg/di). On November 7, 2010, the 24-hour urine protein test found 11-grams of protein in plajntiff s urine. Plain ti ff was diagnosed with preeclampsia. Her blood pressure was controlled with values in the I40s/90s. Preeclampsia labs were significant for creatine of 1.0, but were otherwise within normal limits. A. decision was made to transfer plaintiff to North Shore University Hospital, as Southside J Iospital was not equipped to care for a neonate of 26 weeks. Dr. Yevgeniya Pozhamy, a maternal fetal medicine physician at North Shore University Tlospital, was contacted and agreed to accept plaintiff. She recommended administering 13etamethasone (a steroid to advance fetal lung maturity) and magnesium (to prevent seizures) to plaintiff. Plaintiff was transported and admitted to North Shore University Hospital on November 7, 20 I 0 at 2:35 p.m. A.t North Shore University Hospital, plaintiff continued on the Labetalol drip and her blood pressure was in the l 40s/90s range. Plaintiff was seen by Dr. Pozharny 15 to 20 minutes afler admission. An ultrasound showed a live fetus and a fetal heart rate in the 120s. Dr. Pozharny confirmed the diagnosis of severe prceclampsia. Preeclarnpsia, a disorder of pregnancy characterized by high blood pressure and a large amount of protein in the urine, usually occurs in the third trimester of pregnancy and worsens over time. In severe cases of preeclampsia there may be red blood cell breakdown, a low blood platelet count, impaired liver function, kidney dysfunction, swelling, shortness of breath due to fluid in the lungs, or visual <;k disturbances. Prceclampsia increases the ri_ of poor outcomes for both the mother and the baby. ff left untreated, it may result in seizures at which point it is known as eclampsia. Dr. Pozharny ordered the placement ofa central line and aterial line. Umbilical Doppler velocimetry noted reversed end-diastolic Oow with normal amniotic fluid volume. In a normal situation, umbilical arterial flow should always be in the forward direction in both systole and diastole. The treatment plan was for external fetal monitoring and deli very in case of non-reassuring fetal heart tracings. Preeclampsia labs were to be repeated and magnesi urn to be continued to prevent seizures. Labetalol was continued. Dr. Pozhamy testified that since the mother was stable and her blood pressures were in the mild range, the plan of treatment was to obtain as much time in uterus for the fetus and administer a second dose of Betamethasone to maximize fetal outcome; but if fetal heart rates were not reassuring or the mother's condition deteriorated, then a quick delivery of the baby. Dr. Pozharny charted that she explained to plaintiff that she had developed severe preeclampsia, that the presence ofreversal end-diastolic flow was indicative of a longstanding disease process and a poor prognosis for the fetus. She explained that delivery should be held off until additional Betamethasone was administered, but if the fetal heart beat was non-reassuring, or if her blood pressure went up or there were lab abnormalities or low urine output, the delivery would be sooner. On November 7, 20 I 0, at approximately 4:45 p.m., fetal heart rate monitoring indicated late decelerations with minimum variability that required delivery. Plaintiff was transported to the delivery room at 4:58 p.m. Dr. Rothstein, assisted by Dr. Elizabeth Schmidt, an -Obstetrical resident, delivered the baby [* 5] Waring v Matalon lndexNo.10248-11 Page 5 by Cesarean section. At 5:05 p.m. the baby had a spontaneous heart beat of " less than 60 bpm," and her Apgar score was l at one minute. She did not have spontaneous respiratory effort and was suctioned, stimulated and given positive pressure ventilation by face mask and bag value. The baby was intubated and good chest movement was noted. Chest compressions were initiated and Epinephrine was administered. Apgar scores were reassessed at 5 minutes and again at l 0 minutes, both with a score of I. Her muscle tone was flaccid, her reflexes showed no response, and her color was "blue/ pale." The "infant's heart rate continued to be appreciated at l minute, 5 minutes, and l 0 minutes after delivery." Sadly, at 5: 17 p.m., the baby died. Pursuant to Public Heath Law§ 4130 ( I), the baby was issued a birth certificate. Plaintiff remained at North Shore University Hospital until November 11, 20 I 0. She was treated with oral Labetalol and when her blood pressure improved she was released. ln 201 l , plaintiff became pregnant again and, on December 21, 2011, she delivered a child by Cesarean section without complication. Moving dcfendanlc; have established their prima facie entitlement to summary judgment based upon the affirmation of Dr. Rothstein that the baby was born alive by Cesarean section at 5:05 p.m. "with a spontaneous heart beat that was present without any 1ifc supporting efforts." The position that the baby was born alive is also supported by the Apgar scores as well as Public Health Law§ 4130 (I) as a certificate of live birth was issued. ln opposition, plaintiff maintains that Corinne Angelica Rose-Mcintosh, had "already suffered irreversible brain death" prior to the Cesarean section and was, therefore, "legally and clinically dead at the time of [her] delivery." Plaintiff relies on the opinion of one of her two experts, the condition of the placenta at the time of delivery and the autopsy report. Dr. Albert Yeh, the pathologist and author of the autopsy reports that "rtJhis is a case of a 26 weeks old female fetus bom to a 34 year-old G2 l 001 mother on Nov. 07, 2010." (emphasis added) " Baby was delivered with a heart rale of < 60. Resuscitation with chest comprcssjons and positive pressure ventilation was initiated but despite resuscitation efforts, heart rate remained below 60 and baby expired." (emphasis added) Dr. Yeh concluded, " fiJn summary, the cause of fetal demise is probably due to poor maternal-fetal perfusion as a complication of pre-eclampsia." IJe also found that microscopic sections of the baby's brain "reveals no significant change." Dr. Yeh reports "fetal demise;' but also indicates the "baby" was delivered and that the female fetus was "born." In Amin v Soliman, 67 AD3d 835, 889 NYS2d 629 (2d Dept 2009), the p laintiffs raised a triable issue of fact as to whether the fetus was stillborn as the infant had no respiratory response, the Apgar score was zero at one, five and ten minutes after birth and the infant died within ten minutes after being removed from a ventilator. Unlike Amin, the Apgar scores here were 1 at one, five and ten minutes after birth. In Levin v New York City Health and Hospitals Corp., 119 AD3d 480, 990 NYS2d 490 (1st Dept 2014), Iv denied25 NY3d 962, 28 NYS3d 258 (2015), the infant had a heart rate of70 to 80 beats per minute and weak movement of the extremities. Her Apgar scores were 1 at one and five minutes, with no respiratory effort, limp muscle tone, no response to stimuli and pale or blue color. Whi le in a neonatal intensive care unit (NICU), no resuscitation was attempted, and after 3 Y2 hours aft.er delivery, the infant died. Plaintifrs expert inLevi11 concluded that the infant was not viable and was "brain dead" within 15 minutes after birth. Here, plaintiff's pediatric neurology expert speculates that at 5:05 p.m. "the fetus was brain dead." At the time of delivery her placenta was friable (easily crumbled or pulverized), discoid (shaped like a disc), [* 6] Waring v Matalon Index No. 10248- 11 Page 6 and grossly infarcted (tissue that is dying or dead having been deprived of its blood supply). The expert contends that "[a]lthough the fetus has a lingering heart rate of 60 beats per minute at the time of delivery, this was an autonomic response and not indicative of brain stem activity." Plaintiffs expert's opinion is not based upon any test of brain activity and can only offer conjecture of the time the infant's brain activity stopped. On November 7, 2010, there were in utero fetal heart monitoring showing heartbeats up to the time of delivery. Plaintiffs expert opinion that the infant's "brain activity" ceased is belied by the affinnation of the delivery room doctor, who avers" that the infant female was delivered alive by Cesarean section with a spontaneous heart beat that was present without any life supporting efforts. The infant' s heart rate continued to be appreciated at 1 minute, 5 minutes and 10 minutes after delivery." Plaintiff's obstetrician and gynecologist expert opines that on November 5, 2010, plaintiff was suffering from severe precclampsia when she presented at Southside I lospital, and that treating her for hypertension associated with pregnancy was a deviation from accepted standards of medical care. Her two urinalysis tests were positive for proteinuria at 4: I I p.m. and 8:35 p.m. on November 5, 20 I 0, and again at 8:00 a.m. on November 6, 2010. The expert opines that it was malpractice to fail to timely transport plaintiff to a hospital with a level three NICU. He opines it was an additional deviation from accepted standards of medical care in failing to order a 24-hour urine test stat and to place plaintiff on continuous electronic fetal monitoring. I le also alleges it was a deviation from accepted medical care by North Shore University Hospital in failing to immediately place plaintiff on fetal heart monitoiing upon her arrival and waiting almost 40 minutes after fetal heart tracings with absent variability and deep prolonged decelerations to deliver by C-section. I le avers "[tlhe fetal heart strips arc indicative of a baby that is terminal based upon lack of variability and deep prolonged decelerations, indicating an agonal condition. The delivery records show that the fetus never had consciousness of any kind and was not viable." I le does not opine that the baby was stillborn or "brain dead." On November 7, 2010, the baby, CorinneAngeliea Rose-Mcintosh, was issued a "Certificate ofLive Birth"' pursuant to Public Health Law§ 4130 (1), which section provides: I. Live birth is defined as the complete expulsion or extraction from its mother of a product of conception, irrespective of the duration of pregnancy, which, after such separation, breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached; each product of such a birth is considered live born. The court finds that the baby was born alive based upon the undisputed beating of the baby's heart, the Apgar scores of l , and the affirmation ofDr. Rothstein, the delivery room doctor, who avers " that the infant female was delivered alive by Cesarean section with a spontaneous heart beat that was present without any life supporting efforts. The infant's heart rate continued to be appreciated at 1 minute, 5 minutes and 10 minutes after delivery." Accordingly, the plaintiffs first cause of action against all defendants alleging "pain, great agony, suffering, mental anguish and emotional distress" is dismissed (Sheppard-Mobley v King, 4 NY3d 627, 797 NYS.2d 403 [2005]). [* 7] Waring v Matalon Index No. I 0248- 11 Page 7 As tp plaintiffs claim for lack ofinformed consent, Public Health Law§ 2805-d (1) defines lack of informed consent as "the failure of the person providing the professional treatment* * *to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical , dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make knowledgeable evaluation." To establish a medical malpractice claim based on lack of informed consent, a plaintiff must show (I) that the defendant failed to disclose alternatives to the proposed treatment and the foreseeable risks associated with such treatment, that a reasonable medical practitioner under similar circumstances would have disclosed, (2) that a reasonably prudent person in the patient's position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury (see Public Ilealth Law § 2805-d f3 j; Manning v Brookhaven Mem. Hosp. Med. Ctr. , 11 AD3d 518, 782 NYS2d 833 [2d Dept 2004]; Trabal v Queens Surgi-CenJer, 8 AD3d 555, 779 NYS2d 504 [2d Dept 2004]; Foote v Rajadllyax, 268 AD2d 745, 702 NYS2d 153 [3d Dept 2000]). To establish the proximate cause clement, a plaintiff must show that the operation, treatment or procedure for which there was no informed consent was a substantial cause of the injury (see Thompson v Omer, 36 J\D3d 791 , 828 NYS2d 509 [2d Dept 2007J; Trabal v Queens SurgiCenter, 8 AD3d 555, 779 NYS2d 504;Mondo v Ellstei11, 302 AD2d437, 754 NYS2d 579 f2d Dept 20031). Herc, defendants' submissions, particularly the deposition testimony of Dr. Pozharny, are sufficient to establish a prima facie case of entitlement to judgment in defendants' favor as a matter oflaw on the cause of action for lack of informed consent (see Kunic v Jivotovski, 121 AD3d 1054, 995 NYS2d 587 [2d Dept 20141; Belak-Red[ v Bollbzgier, 74 AD3d 1110, 903 NYS2d 508 f2d Dept 2010]). In particular, Dr. Pozharny testified, in relevant part, that plaintiff was advised that the plan was made for external fetal monitoring and delivery in case of non-reassuring fetal heart tracings. The medical records indicate " [l]he patient was informed that delivery was to occur after the patient was steroid complete." "Additionally, the patient was informed that we would deliver the patient more expeditiously for nonreassuring fetal heart status, maternal uncontrolled hypertension, lab abnom1alitics or oliguria (the production ofabnormally small amounts of urine). All questions were answered." Moreover, it is undisputed that the Cesarean section occurred on an emergency basis. For the claim to be actionable, a defendant must have engaged in a. "non-emergency treatment, procedure or surgery" or "a diagnostic procedure which involved invasion or disruption of the integrity of the body" (Public Health Law § 2805-d [2]). The record establishes the treatment rendered by the hospital was on an emergency basis. Defendants have established theirprima facie entitlement to dismissal of this cause of action and in opposition plaintiff has not raised a triable issue of fact. Accordingly, plaintiff's second cause of action is dismissed as to all defendants. As to the cause of action for negligent hiring, hospitals are vicariously liable for the acts of their employees and may be vicariously liable for the malpractice of a physician, nurse, or other health care professional that it employs under the doctrine ofrespondeat superior (see Hill v St Clare's Hosp. , 67 NY2d 72, 499 NYS2d 904 [19861; Bing v Thunig, 2 NY2d 656, 163 NYS2d 3 [I 957J; Seiden v So11stein, 127 AD3d 1158, 7 NYS3d 565 [2d Dept 20151). Generally, a hospital is not vicariously liable for the malpractice of a physician who is not employed by the hospital and is not liable for injuries suffered a patient under the care of a private physician where the hospital staff carries out a private physicians orders (Fink v DeAngelis, 117 AD3d 894, 986 NYS2d 212 [2d Dept 2014)). However, "an exception to the general rule exists where a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician ofthe patient's choosing" (Smolian v PortAuth. ofN.Y. & N.J., 128 AD3d 796, 801 , [* 8] Waring v Matalon Index No. 10248-11 Page 8 9 NYS3d 329, 334 12d Dept 2015]). Under a theory of apparent or ostensible agency, a hospital may be vicariously liable for the malpractice of a physician, who is not an employee of the hospital, if a patient reasonably believes that the physicians treating him or her were provided by the hospital or acted on behalf of the hospital (Hilsdorf v Tsioulias, 132 AD3d 727, 17 NYS3d 655 (2d Dept 2015J; Loaiza v Lam, l 07 J\03d 951 , 968 NYS2d 548 l2d Dept2015]). Southside Hospital has established that Dr. Martin Matalon is a private attending physician who is not employed by the hospital. Dr. Jonathan Goldstein, who was called by Dr. Matalon for a perinatology consultation, also rendered care to plaintiff as a private physician. Southside I Iospital' s expert, Dr. Frank Manning, avers that the care provided by the staff at Southside Hospital was within the standards of good and accepted care, and that the care provided by the staff at Southside Hospital was not a substantial factor in causing any injury to plaintiff. As to North Shore University Hospital, no claims are made against Dr. Randi M. Rothstein, the delivering physician, or Dr. Elizabeth Schmidt, the obstetrical resident. With regard to Dr. Yevgeniya Pozharny, defendants' expert opines that her recommendations of steroid treatment to advance fetal lung maturity and magnesium sulfate to decrease rhc risk of seizures were both appropriate. Upon admission to No11h Shore University Hospital, Dr. Yevgeniya Pozhamy's evaluation indicated fetal movement and a heart rate in the 120 range. Dr. Manning opines that Dr. Pozharny's determination to treat plaintiff in the ICU to monitor the Labctalol IV was also appropriate. The plan of care was to stabili7.c plaintiff's blood pressure and maintain the fetus in utero for as long as possible to allow the steroid to advance fetal lung maturity. Dr. Manning op.ines that such plan was appropriate. The hospitals, therefore, have established a prima facie case that the treatment and care rendered to plaintiff did not depart from acceptable standards of medical practice. In opposition, plaintiffs expert opines that the failure of Dr. Matalon and Dr. Goldstein to timely recognize that plaintiff was suffering from severe prccclampsia deviated from the standards ofmedical care. [Jc also opines that Dr. Sevinc Kadayifici, an internal medicine physician, who was on call at Southside Hospital ICU, failed to appreciate a positive urine analysis at 7:25 p.m. on November 5, 2010, and again on Novem bcr 6, 20 l 0, and that such failure was a deviation from accepted standards of medical and obstetrical care, as was the failure to order a 24-hour urine protein test stat (resulting in a 12-hour delay). Cic also al leges that the failure to start the steroid treatment sooner, the failure to transport plaintiff to a level 3 NICO sooner, and the failure to monitor the fetal heart were departures from acceptable standards of medical care. !\a to North Shore University Hospital, plaintiffs expert opines that the failure to immediately place electronic fetal monitoring on plaintiff was a deviation of accepted standards of medical care. He also opines that the emergency C-section should have been ordered at 4:30 p.m., as opposed to 5:05 p.m. Plaintiffs experts do not, however, opine that any of the alleged deviations from accepted standards of medical care caused any injury to plaintiff. Plaintiff, thus, has failed to raise a triable issue of fact with respect to conduct of the hospitals or their staff. Accordingly, the motion by the hospital defendants for summary judgment dismissing the complaint as against them is granted. The unredacted expert affirmations submitted for in camera review are being mailed back to plaintiffs counsel. 0.c~JA!~ 1 HON. Vv. CITRA.Rv ASHER X FINAL DISPOSITION NON-FINAL DISPOSITION

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