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Infant plaintiff’s mother (herein “plaintiff-mother”) is a physician Board Certified


Infant plaintiff’s mother (herein “plaintiff-mother”) is a physician Board Certified in Internal Medicine. On 8 March 1999, plaintiff mother presented to New York University Village Women’s Health (“Women’s Health”) for prenatal care and was examined by a doctor (herein “doctor-one”). According to her deposition, plaintiff-mother was unaware that she had ever been exposed to herpes and reported to her obstetricians that she did not have herpes or diabetes. In fact, the NYU defendants claim that plaintiff-mother still denied that she had herpes to doctor-one on 27 April 2000, some seven months after the delivery. The NYU defendants claim that the prenatal care records and labor and delivery records reveal that herpetic vesicles or lesions were never observed during any of plaintiff-mother’s vaginal examinations throughout the pregnancy.

Plaintiff-mother remained under the care of doctor-one during the prenatal period. On 8 March 1999, in response to a blood sample report which revealed raised red blood cell antibodies which had the potential to destroy the fetus or newborn’s red blood cells, doctor-one referred plaintiff-mother to non-party doctor-two, a specialist in maternal-fetal medicine, for evaluation and monitoring. Doctor-two monitored plaintiff-mother’s blood antibodies through the pregnancy.

On 8 September 1999, plaintiff-mother was examined by doctor-one at Women’s Health. She was 50% effaced, her cervix was closed, and the gestational age was more than thirty-seven weeks. Plaintiff-mother consented to vaginal delivery by induction. She presented to New York University Medical Center (“NYUMC”) on 9 September 1999 at 5:08 p.m. for delivery with the assistance of Pitocin. A fetal heart rate monitor was placed and doctor-one ordered Pitocin to be infused at 7:25 p.m. After some 25 hours, plaintiff-mother’s membranes were artificially ruptured at 9:00 p.m. on 10 September 1999. Doctor-one examined the patient for the last time at approximately 5:56 p.m. on 11 September 1999, some 48 hours after plaintiff-mother presented to NYUMC. From this point on, doctor-three, who was covering doctor-one’s patients, took over the care of plaintiff-mother. Approximately 12 hours later, at 5:30 a.m. on 11 September 1999, the infant-plaintiff was delivered by doctor-three. A vacuum extraction was performed, and forceps were applied to complete the delivery. A pediatrician was present at the time of delivery and noted Apgar scores of eight at one minute and eight at five minutes. The infant was transferred to the well-baby nursery, where he was noted to have two “skin tears”; one on the left side of the face and one on the right neck. On 13 September 1999, infant-plaintiff was discharged home and skin lesions appeared intermittently in September of 1999.

Doctor-four and doctor-five are pediatricians associated with Pediatric Associates of NYC (“Pediatric Associates”). The infant first was seen at the Queens office of Pediatric Associates on 19 September 1999 by doctor-five. This is the only time doctor-five saw the infant, who was brought in before his first scheduled appointment, on a Saturday, due to a skin condition. Doctor-five testified that the lesion looked like a bacterial pustulosis or impetigo lesion, which is also bacterial. He prescribed Keflex and Bactroban, and took a culture. Doctor-five claims that since Keflex and Bactroban are highly effective against a staph infection, which is, as it turned out, what the infant had, then his care and treatment were appropriate. He also testified that he could not perform a culture for herpes in his office as that requires special training which he did not have. Since the infant was to be a patient of the Brooklyn office of Pediatric Associates, doctor-five never saw the infant again.

On 22 September 1999, doctor-four first saw the infant at the Brooklyn office of Pediatric Associates. She noted that the infant had developed 3 pustules with straw colored fluid 3-4 days before this visit, which doctor-five had treated with Keflex and Bactroban. She further noted that the infant’s mother had no history of oral herpes infections or sexually transmitted diseases. The infant presented with two new pinpoint lesions on his neck, and at that time there was no growth of the cultures up to that date and the cultures were being held for fungus.

Doctor-four consulted by telephone with doctor-six, a pediatric dermatologist, describing what she observed on the infant. According to doctor-four, doctor-six did not seem concerned and told her to continue the Keflex and Bactroban and to add Nizoral cream; that it appeared to be a fungul skin infection, and thought that the lesions could have been caused by the forceps used during delivery. Doctor-four’s impression was that the pustules could be staph aureus, Candida, staph epidermidis or epidermolysis bullosa. She continued the Keflex (this was day 4 of the 10 day course of Keflex prescribed by doctor-five), and prescribed Nizoral cream and Bactroban 3 times per day. If the lesions progressed, the mother was to return to the office and doctor-four noted that she would send the baby to a pediatric dermatologist. Doctor-fournext saw the infant on 23 September 1999. She observed no new lesions, and noted three honey crusted lesions on the right neck and three on the chest. Doctor-four’s impression was questionable impetigo. She instructed the mother to continue the Keflex, Bactroban and Nizoral and to call if there were any new lesions.

Meanwhile, the results of the culture taken by doctor-five were stated in a report dated 30 September 1999, and revealed staphylococcus aureus.

On 7 October 1999, doctor-four again saw the infant who was fussy and was seen due to colic. On 14 October 1999, the baby was seen again by doctor-four. Plaintiff-mother, had observed intermittent anisocoria (unequal pupil size) that morning. Doctor-four referred the infant to a pediatric ophthalmologist, doctor-seven, to be seen that same day, and to the pediatric dermatologist, doctor-six, who was to see the infant the next day due to questionable impetigo. Doctor-four from Staten Island noted the mother reported that the skin lesion recurred three days ago and she had been using Nizoral and Bactoban with results. On exam, there was intermittent anisocoria of the right eye and the right pupil was equal and reactive to light. There was a honey crusted lesion on the right neck and a dry lesion on the right chest.

Doctor-six’s records indicate that the plaintiff mother did not bring the infant in until 18 October 1999. He cultured the lesions and they were negative. He did not think they were herpes. Blood tests which had been performed on the mother and infant revealed that the infant-plaintiff and the mother were positive for the antibody for HS V-2, in reports dated October 19 for the mother and October 22 for the infant.

Doctor-four testified that she consulted with doctor-six after he saw the infant and mother on 18 October 1999; that she had wanted them to see doctor-six on 15 October; that she received a report from a doctor-eight indicating that he saw the infant on 4 November 1999 for congenital/perinatal herpes infection.

Subsequently, a medical malpractice action ensued in which plaintiffs seek damages for injuries allegedly sustained by the infant plaintiff at his birth on11 September 1999 due to the alleged malpractice of the defendants. Plaintiffs assert, inter alia, that defendants failed to properly examine, diagnose and medicate plaintiffs; failed to treat the infant in utero and his mother prenatally; failed to properly evaluate the plaintiff-mother’s pelvic anatomy; failed to properly diagnose and treat the plaintiff-mother’s herpes and herpatic condition; failed to treat the pregnancy as high risk; failed to perform and interpret sonograms; improperly recognized the presence of and improperly treated the complications of delivery; negligently and improperly attemptec a vacuum extraction delivery; failed to timely and properly perform a vacuum extraction; failed to perform a cesarean section once the vacuum extraction failed; improperly performed a forceps delivery, and failed to use the forceps in a proper manner, negligently cutting the infant with the forceps; and created a portal of entry of herpes to the infant by the improper use of forceps during delivery, thereby resulting in the infant-plaintiff contracting herpes simplex virus, Type II (“HSV-2”).

The defendants, doctor-four, doctor-five and Pediatric Associates of NYC (“the Pediatric defendants”), move for an order granting summary judgment and dismissing plaintiffs’ complaint on the basis that no triable issues of fact exist.

By separate motion, defendants doctor-one, doctor-three, New York University Ob/Gyn Associates, and NYU Hospitals Center, s/h/a “New York University Medical Center” (“the NYU defendants”) move for the same relief.

Plaintiffs cross-move for an order providing that if any defendant obtains summary judgment and dismissal of plaintiffs’ claims against it, then any remaining defendant should be precluded from obtaining, or should be deemed to have waived or forfeited, the limited liability benefits of CPLR Article 16 in relation to the acts or omissions of said defendant who is granted summary judgment and dismissal of plaintiffs’ claims against it; and then such should become the law of the case as to any remaining defendant so as to preclude the application of CPLR Article 16 concerning the acts or omissions of said defendant who is granted summary judgment and dismissal of plaintiffs’ claims against it.

The Ruling:

Under the rules, summary judgment may be granted only when it is clear that no triable issues of fact exist. The province of a court on a motion for summary judgment is issue finding rather than issue determination. The party moving for summary judgment bears the initial burden of making a prima facie showing of its entitlement to judgment as a matter of law. Once such a showing has been established, the burden is shifted to the opposing party to come forward with proof in evidentiary form to show the existence of genuine triable issues of fact. General conclusory statements and expressions of hope are insufficient to defeat the motion. On such a motion, the court is not to determine credibility, but whether a factual issue exists.

It is well established that for a plaintiff to establish a cause of action sounding in negligence, he must meet the initial burden of showing: the existence of a duty flowing from defendant to plaintiff; a breach of this duty; a reasonably close causal connection between the contact and the resulting injury; and actual loss, harm or damage.

It is equally well established that in determining whether a breach of duty has occurred, it is necessary to consider whether the resulting injury was a reasonably foreseeable consequence of the defendant’s conduct. When faced with a motion for summary judgment on proximate cause grounds, a plaintiff need not prove proximate cause by a preponderance of the evidence, which is plaintiff’s burden at trial. Instead, in order to withstand summary judgment, a plaintiff need only raise a triable issue of fart regarding whether defendant’s conduct proximately caused plaintiff’s injuries.

On the NYU Defendants:

The court finds that plaintiffs experts statements as to departures as to the NYU defendants amount to nothing more than speculation.

Here, the expert states that a cesarean should have been performed because the mother had HPV and genital warts in 1985. The expert states that these are sexually transmitted, so doctor-one knew that plaintiff-mother had been exposed to a sexually transmitted disease. The expert continues that HPV can cause pharyngeal condylomata in the baby and thereby possibly obstruct the pharynx which is life threatening. Doctor-one should have notified plaintiff-mother of this risk to the baby, and of the fact that this risk would be substantially decreased if a cesarean section was performed. The expert also states that as of 5:05 p.m. on10 September 1999, a cesarean should have been performed, since continued labor exposed the mother and fetus to danger from maternal exhaustion, uterine abruption due to scar separation, fetal distress, fetal hypoxia, and uterine abruption due to scar separation. In effect, plaintiff’s expert is claiming the single departure of failure to perform a cesarean section as to the NYU defendants. While plaintiffs claim that the infant contracted HSV as a result of the vaginal delivery and the trauma sustained by the use of forceps, plaintiffs fail to address the issue of proximate cause, and more specifically, foreseeability. The list of injuries in the preceding paragraph which the expert opines the infant could have suffered from a vaginal, rather than cesarean, delivery, were not in fact suffered by the infant. On the contrary, the birth injury (birth injury accident) which is at issue here, the contracting of HSV is not listed as a foreseeable risk of vaginal delivery to a reasonable degree of medical certainty. The NYU defendants were presented with no basis to believe that there was this risk. No herpetic vesicles or lesions were ever observed in plaintiff-mother during the prenatal period, and she affirmatively reported that she did not have herpes and was unaware that she had ever been exposed to herpes, even to a point seven months after the birth of the infant plaintiff.

By reason of the aforesaid failure to establish that the risk of being infected with HSV was foreseeable as to the infant plaintiff, the motion by doctor-one, doctor-three and New York University Ob/Gyn Associates for summary judgment is granted.

Moreover, plaintiff did not point to any departure by NYUMC staff. Plaintiffs’ allegations were directed at doctor-one and doctor-three, who were, according to the evidence, private attending physicians and not employees of NYUMC in 1999. Plaintiffs’ expert in pediatrics addresses only those actions by the Pediatric defendants, who are not NYUMC staff, and whose course of treatment occurred after the infant plaintiff was discharged from NYUMC.

More importantly, plaintiffs’ claims of negligent credentialing which are contained in the Bill of Particulars were addressed by the NYU defendants in an affidavit presented, and plaintiffs have not come forward with evidentiary proof of any kind to rebut the statements therein that proper procedures were employed by NYUMC in the credentialing of physicians. Thus, such claim is dismissed, and summary judgment is granted to NYUMC

On the Pediatric Defendants:

The court finds that issues of fact exist as to whether defendants doctor-five, doctor-four and Pediatric Associates deviated from accepted standards of medical practice which preclude the granting of summary judgment.

Here, unlike the situation presented with the NYU defendants, plaintiffs’ pediatric expert clearly sets forth departures and deviations as to the correctness of these defendants’ treatment and diagnosis of the infant plaintiff, as well as the timeliness of their actions and referrals to appropriate specialists, which plaintiffs’ expert opines permitted the HSV infection to remain undiagnosed for several weeks and to become less amenable to treatment.

Thus, the court denies the motion.

On plaintiff’s Cross-Motion:

Here, plaintiffs cite a case, in support of their motion, where summary judgment has been granted to NYUMC and constitutes the law of the case. The court finds such ruling highly persuasive. Thus, applying the principle set forth therein precludes the remaining defendants from attempting to prove the negligence of the dismissed defendants to reduce their own Article 16 proportional liability.

In the cited case, plaintiff and co-defendants failed to challenge the sufficiency of the movant’s showing and inasmuch as a motion for summary judgment is the functional equivalent of a trial and the remaining defendants failed to satisfy the evidentiary burden that shifted upon the movant’s prima facie showing, the opportunity to limit liability under Article 16 with respect to the movant’s acts or omissions has been forfeited. The same applies, of course, where a defendant opposed the motion and lost. Thus, the court finds that the remaining defendants have had a full and fair opportunity to address each moving party’s liability in this case. Accordingly, the cross-motion is granted.

In sum, the motion by defendants doctor-one, doctor-three, New York University Ob/Gyn Associates and New York University Medical Center for summary judgment is granted and the plaintiffs’ complaint is dismissed as to these defendants; the motion for summary judgment by defendants doctor-four, doctor-five and Pediatric Associates is denied and the complaint is severed as to these defendants and shall continue; the cross-motion by plaintiffs for an Article 16 relief to preclude the remaining defendants doctor-four, doctor-five and Pediatric Associates herein from asserting CPLR Article 16 defenses is granted.

For a free legal consultation with a Kings County Medical Malpractice Lawyer, contact Stephen Bilkis & Associates. Our legal experts are available to assist you by answering any and all of your legal concerns. A Kings County Birth Injury Accident Lawyer specializing in birth injuries may also assist you with your specific birth injury concerns.

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