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Torres v. Ashmawy

March 26, 2009

SANDRA TORRES, AS MOTHER AND NATURAL GUARDIAN OF MARIO EMMANUAL SANTANA, AN INFANT UNDER THE AGE OF FOURTEEN (14) YEARS, AND SANDRA TORRES, INDIVIDUALLY, PLAINTIFF,
v.
YESSIN ASHMAWY, M.D., PAUL S. MAYER, M.D., HUDSON VALLEY OBSTETRICS & GYNECOLOGY, P.C., LUDIVINIA CABALLERO, M.D., PRABHAKAR KOCHERLAKOTA, M.D., ST. LUKE'S HOSPITAL, "JOHN/JANE DOE", MIDWIFE, AND "JOHN/JANE DOES", R.N. 1 THROUGH 3 WHOSE NAME ARE UNKNOWN, DEFENDANTS.



The opinion of the court was delivered by: Lewis J. Lubell, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

This medical malpractice action is brought in connection with, among other things, personal injuries including brain damage, cerebral palsy, hemiparesis, blindness, and cognitive and developmental delays allegedly suffered by the infant plaintiff, Mario Emmanual Santana (the "Infant"), during and directly after his birth.*fn1

Currently before the Court is the motion in limine of Paul S. Mayer, M.D. ("Mayer"), as joined in by co-defendant Yessin Ashmawy, M.D., for an ORDER precluding the introduction at trial of evidence or references to the administrative proceedings, findings and/or determination of The New York State Board For Professional Medical Conduct (the "Board") with respect to Mayer and his subsequent conviction for Attempted Unauthorized Practice of Medicine. For the reasons herein stated, the Court grants the motion except to the extent that Mayer may be cross-examined for impeachment purposes with respect to the Board's sustained specifications against Mayer for fraudulent practice (Education Law §6530 [2]) and his conviction for Attempted Unauthorized Practice of Medicine, as is more fully set forth herein.

At all times relevant to the allegations underlying this action, including Torres' prenatal care and the ensuing delivery on October 15, 1997, Mayer was a board certified obstetrician/gynecologist licensed as a physician in the State of New York since July 1976. At the time of this incident, Mayer, co-defendant Yessin Ashmawy, M.D. ("Ashmawy"), and non-party Nurse Midwife Laura Cross (the "Midwife") were employed by Hudson Valley Obstetrics & Gynecology, P.C. ("Hudson Valley"), a professional corporation owned by Mayer.

Plaintiff Sandra Torres ("Torres"), the Infant's mother, contends that from August 1997 until the time of the Infant's delivery on October 15, 1997 she had been leaking amniotic fluid. During that interval and during the course of the delivery at defendant St. Luke's Hospital, Torres alleges to have been cared for by Dr. Paul S. Mayer, M.D. Torres claims that Mayer's failure to have diagnosed and treated the leakage of amniotic fluid resulted in the injuries sustained by the Infant. Torres also claims that her labor and the delivery of the Infant were mismanaged in that, among other things, a cesarean section should have been performed.

As set forth at Item "2" of the plaintiffs' response to Mayer's Demand for a Bill of Particulars, the allegations of alleged negligence as to Mayer and Hudson Valley concern the prenatal care of the Torres from April 8, 1997 through October 15, 1997 and the ensuing labor and delivery of the Infant on October 15, 1997 at defendant St. Luke's Hospital. More particularly as set forth therein, plaintiffs claim that Mayer:

1. failed to diagnose premature/prolonged rupture of the membranes during the plaintiff's prenatal visits;

2. failed to treat oligohydraminos (inadequate amniotic fluid) caused by the premature/prolonged rupture of the membranes;

3. failed to maintain proper medical records;

4. failed to diagnose and treat fetal distress; and,

5. failed to perform a timely cesarean section.

In contrast to the position taken by plaintiffs with respect to Mayer's participation in the care and treatment of Torres and the Infant, Mayer contends that all medical care pertinent to this matter during August 1997 had been provided by the Midwife and, thereafter, solely by co-defendant Ashmawy.

In anticipation of having to testify at trial to address, among other things, the material questions of fact as to whether and to what extent he was involved with the care and treatment of Torres and the delivery of the Infant, Mayer brings this motion in connection with the September 15, 2000 determination of the Board to revoke his medical license following a five-day hearing conducted pursuant to the provisions of Section 230 (10) of the New York Public Health Law and Sections 301-307 and 401 of the New York State Administrative Procedure Act. In connection therewith, the Board received evidence concerning fifteen "specifications" of Mayer's alleged violations of Section 6530 of the New York State Education Law concerning the medical care and treatment provided by Mayer to three of his ...


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