On 21 February 2002, the infant plaintiff was born at a Hospital in Brooklyn with a congenital condition known as tracheobronchomalacia, defined as a degeneration of the elastic and connective tissue of the tracheal windpipe and bronchi, which can cause central airway collapse with respiration; and a second congenital condition of diaphragmatic paralysis, in which problems arise with the movement of the diaphragm. Shortly after delivery, the infant was admitted to the Neonatal Intensive Care Unit (NICU) for respiratory distress. He was thereafter transferred to another Hospital where it was determined that his condition was not surgically correctable. He was readmitted to Brooklyn Hospital’s NICU, and at the approximate age of three months, he was transferred to the Pediatric Intensive Care Unit (PICU). While in the PICU, the infant plaintiff suffered a cardiorespiratory arrest which required resuscitation. The infant plaintiff was resuscitated after almost one hour, but he had sustained severe neurological damage or brain injury.
From June 1 to 6 of 2002, the period in question, doctor-one was the pediatric intensivist at the PICU. Doctor-two from New York City, a pediatric pulmonologist, was on duty for the department of pediatric pulmonology for patients, and was consulted by the intensivist at the PICU concerning the infant’s pulmonary status. Doctor-three was an attending neonatologist, and claims that her only contact with the infant plaintiff was during a code called by doctor-one on 6 June 2002.
Subsequently, a medical malpractice action was instituted for the plaintiff’s birth injury. Plaintiff alleges that doctors one two and three failed to respond to indications of respiratory distress and disregarded tonic limb extension which was indicative of central nervous system involvement, resulting in the infant suffering a prolonged cardiac arrest with bilateral pneumothorax, and failed to properly resuscitate the infant; that doctor-one failed to respond to various signs, failed to properly diagnose, treat, and medicate; that doctor-one failed to timely administer a therapeutic means of respiratory support; and undertook placement of a peripheral line which was contraindicated, instead of undertaking an alternative IV line placement.
Defendant doctor-one moved for an order granting summary judgment and dismissing the complaint. Defendants doctor-two and doctor-three cross-moved for the same relief.
Was there a medical malpractice on the occasion of plaintiff’s birth injury, i.e., brain injury? Did doctors one two and three deviate from the good and accepted medical practice? Was there enough evidence that such departure was the proximate cause of the plaintiff’s injury? Should the motion for summary judgment be granted and the complaint dismissed?
On the issue of Timeliness of the Cross-Motion:
Here, the cross-motion of doctors two and three for summary judgment is dated 3 April 2007 and was served by mail on 23 March 2007. This is 126 days after the filing of the note of issue on 17 November 2006.
Under the rules, motions for summary judgment shall be made within sixty days of the filing of the note of issue. Nassau Courts may only entertain an untimely summary judgment motion when the movant demonstrates good cause for his or her delay, which the Court of Appeals has deemed to entail a satisfactory explanation for the untimeliness rather than simply permitting meritorious, non-prejudicial filings, however tardy. Stated otherwise, whether there is merit to the late motion for summary judgment is not a relevant consideration.
The court notes that to the extent that doctors two and three are attempting to rely upon an allegedly timely motion for summary judgment by a co-defendant by denominating their motion as a cross motion, it cannot be considered as such given that it seeks relief against the plaintiff, who is a non-moving party. In addition, they have not explained why this motion needed to be filed as a cross-motion, or why it should not have been filed as a summary judgment motion in the first instance. The Court of Appeals has ruled that litigation cannot be conducted efficiently if deadlines are not taken seriously and that disregarding deadlines should not and will not be tolerated. However, in the case of Grande v. Peteroy, the Second Department recognized that an untimely motion or cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds. In such circumstances, the issues raised by the untimely motion or cross motion are already properly before the court and thus, the nearly identical nature of the grounds provide the requisite good cause to review the untimely motion or cross motion on the merits.
Hence, the court considers the cross-motion on the merits.
On the summary judgment:
The law provides that the burden on a motion for summary judgment rests initially upon the moving party to come forward with sufficient proof in admissible form to enable a court to determine that it is entitled to judgment as a matter of law. If this burden cannot be met, the court must deny the relief sought. However, once a moving party has made a prima facie showing of its entitlement to summary judgment, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fort which require a trial of the action. Mere conclusory statements, expressions of hope, or unsubstantiated allegations are insufficient to defeat the motion. On another note, the essential elements of a medical malpractice claim are a departure from good and accepted medical practice and evidence that such departure was a proximate cause of the plaintiff’s injury. Therefore, on a motion for summary judgment, a defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby.
Here, upon the properly supported papers of both sides, the court finds that issues of fact exist which preclude the granting of summary judgment. Each of the moving defendant doctors has submitted his or her lengthy affirmation in which they state that they committed no departures from accepted standards of medical practice. In contrast, plaintiffs expert has opined that each movant did in fact depart, stating that doctor-one undertook a contraindicated placement of a peripheral line in an unstable infant in an effort to perform an MRI which could have been deferred until the infant was stabilized, and as a result of multiple attempts to place the line, the infant became so agitated as to experience cardiopulmonary arrest significant enough to result in the calling of a code; that doctor-two failed to advise against the MRI-accompanying sedation, even though she documented the infant’s worsening respiratory condition and even though a pulmonary consult had been requested; and that doctor-three failed to properly place and secure the chest tubes to relieve the pneumothoraces, resulting in an unnecessarily prolonged period of cardiopulmonary compromise, and failed to document those procedures she did perform. While the movants have each submitted additional affirmations in reply to plaintiffs opposition, the court finds that the opinions raised present classic differences of opinion among medical experts. Under these circumstances, a credibility question is presented requiring a jury’s resolution and, as a result, summary judgment may not be awarded.
In conclusion, the motion by doctor-one and the cross-motions by doctors two and three are denied.
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