Rios v St. Barnabas Hosp.

[*1] Rios v St. Barnabas Hosp. 2021 NY Slip Op 50350(U) Decided on April 23, 2021 Supreme Court, Bronx County Capella, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 23, 2021
Supreme Court, Bronx County

Luz Nereida Rios, Plaintiff,

against

St. Barnabas Hospital, St. Barnabas Hospital a division of the SBH Health System, SBH Health Systems, Natalie Futterman, D.O., Aliza Weinman, M.D., Jeannelle Chaperon, C.N.M., Defendants.



20250/15



Plaintiff's Attorney

T. McKinley Thornton, Esq.

Law Offices of Joseph M. Lichtenstein, PC

170 Old County Road, Suite 615

Mineola, New York 11501

(516)873-6300

St. Barnabas' Attorney

Rita F. Aronov, Esq.

Garbarini & Scher, PC

432 Park Avenue South, 9th Floor

New York, New York 10016

(212)689-1113

Chaperon's Attorney

Joan M. Ruddy, Esq.

Brown, Gaujean, Kraus & Sastow, PLLC

One North Broadway, Suite 1010

White Plains, New York 10601

(914)949-5300
Joseph E. Capella, J.

The following papers numbered 1 to 8 read on this motion and cross-motion, submitted on [*2]March 18, 2021.

PAPERS NUMBERED

NOTICE OF MOTION AND AFFIDAVITS ANNEXED 1

ANSWERING AFFIDAVIT AND EXHIBITS 3-4

REPLY AFFIDAVIT AND EXHIBITS 5

CROSS-MOTION AND AFFIDAVITS ANNEXED 2

MEMOS OF LAW 6-8

UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER ON THIS MOTION AND CROSS-MOTION IS AS FOLLOWS:

This is a medical malpractice action in which plaintiff is essentially alleging a failure to timely diagnose, monitor and treat her July 2014 ectopic pregnancy,[FN1] resulting in a loss of one fallopian tube and part of her uterus. The injuries alleged in plaintiff's initial bill of particulars (BP) dated December 1, 2015, include, inter alia, "plaintiff will have significant difficulty conceiving in the future; severe abdominal pains; severe mental pain and anguish; loss of quality and enjoyment of life; plaintiff is at higher risk for future ectopic pregnancies and the complications associated." During her October 13, 2016-deposition, plaintiff testified that she gave birth to another child in 2016, which would appear to have the effect of vitiating her earlier claims of future infertility and ectopic pregnancies. In addition, there is no dispute that plaintiff also underwent a tubal ligation in 2016. A supplemental BP dated October 28, 2016, expanded plaintiff's alleged injuries to include, inter alia, "complete infertility; plaintiff will have significant difficulty conceiving in the future, if she is even able to; plaintiff cannot have additional children because of the dangers and complications associated with further pregnancies; severe and life-threatening dangers and complications of plaintiff's subsequent pregnancy (before she knew she should not have further children), including high-risk status, risk of rupture causing the death of her and her child, inability to go full-term with the child due to risk of rupture, and premature birth of the child to prevent rupture, which prematurity resulted in an extended NICU course for the child, multiple holes in the child's heart, and the possibility of developmental delays." Some five days before (emphasis added) filing her note of issue, plaintiff served a second supplemental BP dated August 29, 2019, that included additional departures; however, the injuries from the supplemental BP dated October 28, 2016, remained the same.

By notice of motion, defendants, St. Barnabas Hospital, SBH Health Systems and Aliza Weinman, M.D. (collectively referred to as St. Barnabas), seek to strike plaintiff's second supplemental BP (CPLR 3043(b)), or in the alternative vacate the note of issue. Defendant, Jeannelle Chaperon, CNM (Chaperon), cross-moved for the same relief. According to defendants, the alleged "risk of rupture," "premature birth of the child," "extended NICU," and "multiple holes in the child's heart" that were included in the second supplemental BP are all new injuries that should be included in an amended BP and not a supplemental BP. (CPLR 3043(b); DeNicola v Mary Immaculate, 272 AD2d 505 [2nd Dept 2002]; Kyong v County of Suffolk, 237 AD2d 412 [2nd Dept 1997].) Defendants further allege that an affidavit of merit from an expert is required to support these new injuries, especially for the "extraordinary claims of congenital damages to a subsequent child being supposedly proximately caused by plaintiff's earlier ectopic [*3]pregnancy." They also allege that plaintiff cannot claim her non-party child's medical conditions (i.e., child's stay at NICU, holes in the heart, prematurity and developmental delays) as her own or as a causative nexus to her own injuries. (Howard v Lecher, 42 NY2d 109 [1977].) During a court conference in which the instant motion and cross-motion were discussed, the Court noted that some of the injuries alleged in the second supplemental BP could easily be construed as injuries sustained by the non-party child. It was agreed that plaintiff would serve a further supplemental BP that reformulates the injury allegations by removing the injuries sustained by the non-party child, and make it clear that the alleged dangers, risks and complications are ones directly attributable to plaintiff herself.[FN2]

Plaintiff's third supplemental BP dated October 13, 2020, includes the following injuries: "high-risk status for any and all subsequent pregnancies; recommendation that the plaintiff not become pregnant again due to severe risks associated with subsequent pregnancies; the inability and/or decreased ability to go full-term with any and all subsequent pregnancies; risk of uterine/cornual rupture associated with subsequent pregnancies; heightened risk of death of the plaintiff in connection with any and all subsequent pregnancies; heightened risk of fetal death in connection with any and all subsequent pregnancies, which would result in severe emotional/psychological trauma to the plaintiff; and physical, emotional and psychological pain and suffering in connection with her own compromised status and decreased ability to bear additional children and/or bear additional healthy children and/or carry additional children to full-term." Plaintiff's third supplemental BP eliminated any suggestion that plaintiff was claiming her non-party child's medical conditions as her own. However, defendants still insist that the third supplemental BP is still not a supplemental BP but in fact an amended BP that is devoid of merit, especially given that plaintiff had undergone elective tubal ligation and cannot become pregnant. The parties were permitted to submit memos of law regarding this issue as it pertained to the third supplemental BP.

A party may serve a supplemental BP with respect to claims of continuing special damages and disabilities without leave of court at any time, but not less than thirty days prior to trial, provided that no new cause of action is alleged or new injury is claimed. (CPLR 3043(b).) In addition, a party may amend the BP once as a matter of course prior to the filing of the note of issue. (CPLR 3042(b).) Keeping in mind that a BP is merely an amplification of the pleadings, (State of New York v Horsemen's, 34 AD2d 769 [1st Dept 1970]), within the context of a personal injury action, it allows a plaintiff to expand on the extent of the injuries and damages. (Tate v Colabello, 58 NY2d 84 [1983].) This is especially useful when the long term sequela or permanency of an injury is not known earlier in the action. (Spiegel v Gingrich, 74 AD3d 425 [1st Dept 2010].) Here, the defendants' concerns with the second and by extension the third BP are threefold: the time in which these alleged new injuries were interposed, whether they constituted a supplemental or amended BP, and their legal cognizability.

As to the time and alleged mischaracterization of supplemental versus amendment, defendants erroneously allege that these new injuries first appeared in the second supplemental BP. As previously noted, these so called new injuries in the second supplemental BP were in fact [*4]not new, but were originally included in the supplemental BP some three years earlier. The second supplemental BP merely included additional departures. While upon receipt of the earlier supplemental BP, one could have argued at the time that its inclusion of a "risk of rupture," which did not appear in the initial BP, is not a continuing special damage or disability, but a new injury possibly attributable to plaintiff's last pregnancy (and possibly necessitating an expert's affirmation as to causation), this was not done. If this argument was raised in response to the earlier supplemental BP, then this may have forced plaintiff to utilize her sole (pre-note of issue) amendment as of right (CPLR 3042(b)), but ultimately would not have precluded the introduction of the injuries in question. Instead, this argument is being raised for the first time against the second supplemental BP regarding injuries that were previously included three years earlier in the supplemental BP, both of which were pre-note of issue. The third supplemental BP, which was permitted at the Court's discretion (CPLR 3043(c)), merely eliminated the injuries sustained by the non-party child, but retained the so called new injuries from the second supplemental BP. Therefore, the authority cited by defendants [FN3] for the proposition that plaintiff's second and third supplemental BPs were amended BPs, and that plaintiff was obligated to provide an affidavit/affirmation of merit and a reasonable excuse for the delay are not applicable.

Lastly, defendants argue that the injuries in question are devoid of merit. In other words, plaintiff's alleged high-risk status, risk of uterine/cornual rupture and heightened risk of death to plaintiff and/or fetus, all in connection with any subsequent pregnancy are meritless in that they cannot occur due to plaintiff's elective sterilization by way of a tubal ligation. Counsel for defendant-Chaperon also argues that there is no medical literature to suggest that surgery to remove an ectopic pregnancy results in a heightened risk of fetal death for subsequent pregnancies. As such, they argue that this a novel theory warranting a Frye hearing. (Frye v United States (293 F 1013 [DC Cir 1923]; Lara v NYC Health and Hospitals, 305 AD2d 106 [1st Dept 2003].) First and foremost, it should be noted that defendants are relying upon CPLR 3043(b), which precludes the inclusion of new injuries in a supplemental BP, to strike the second and third supplemental BP. However, as already noted, the injuries alleged in the second and third supplemental BP are not new, but were included in the earlier supplemental BP. An affidavit/affirmation of merit would have been required if plaintiff had sought to amended her BP (DeNicola v Mary Immaculate, 272 AD2d 505), but only after she had exhausted her right to amend once without leave of court - neither of these situations occurred here. Given that no affidavit/affirmation of merit was required, then the merit or lack thereof of the injuries in question would most likely have to be resolved via a CPLR 3211(a)(7) (failure to state a cause of action) or 3212 (summary judgment) motion. The merit of these injuries could also be addressed at a Frye hearing; however, Chaperon has not come forward with any evidence and/or expert opinion (that suggests a lack of general acceptance) to satisfy her prima facie obligation to seek such a hearing. (Middleton v Kenny, 286 AD2d 957 [4th Dept 2001].) There still remains defendants' request for alternative relief in the form of striking the note of issue.

Defendants' motion and cross-motion alternatively sought to strike the note of issue on the premise that they are entitled to the following additional discovery: a further deposition of [*5]plaintiff, the entirety of the impaired child's medical records, school records, early intervention records, developmental therapy records, and prenatal care records of the non-party child. The requested additional discovery clearly pertains to the non-party child's medical conditions that were raised in the supplemental and second supplemental BP. However, the motion and cross-motion were made before plaintiff's third supplemental BP, which eliminated the non-party child's medical conditions and any suggestion that plaintiff was claiming these as her own, and effectively eliminated any need for discovery on this issue. Based on the aforementioned, the instant motion and cross-motion are denied.

Plaintiff is directed to serve a copy of this decision with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision of this court.

Dated: April 23, 2021

Hon. Joseph E. Capella, J.S.C. Footnotes

Footnote 1:A pregnancy in which the fertilized egg implants outside the uterus.

Footnote 2:It is within the court's discretion to grant "other, further or different" bill of particulars. (CPLR 3043(c).)

Footnote 3:The cases cited by defendants (DeNicola, 272 AD2d 505; Kyong, 237 AD2d 412) pertain to instances in which an amended BP is served after the note of issue is filed.