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Ferreira v. Wyckoff Heights Medical Center

May 22, 2009

LUCIA FERREIRA, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF BABY GIRL FERREIRA, ALSO KNOWN AS LUCIA FERMIN, DECEASED, RESPONDENT, ET AL., PLAINTIFF,
v.
WYCKOFF HEIGHTS MEDICAL CENTER, APPELLANT, ET AL., DEFENDANTS.
WYCKOFF HEIGHTS MEDICAL CENTER, THIRD-PARTY PLAINTIFF-APPELLANT,
v.
IRVING SPODEK, M.D., THIRD-PARTY DEFENDANT-RESPONDENT.



Accepted for Miscellaneous Reports Publication

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

As corrected through Wednesday, September 23, 2009

{**24 Misc 3d at 94}

OPINION OF THE COURT

Memorandum.

Judgment entered December 5, 2006 affirmed without costs.

Judgment entered March 28, 2007 modified by correcting the judgment to provide that the award in the principal sum of $1,000,000 is in favor of plaintiff Lucia Ferreira, individually, only; as so modified, affirmed without costs.

In this medical malpractice action, Lucia Ferreira (hereinafter plaintiff) alleges, insofar as relevant to this appeal, that as a result of the failure of defendant Wyckoff Heights Medical Center properly to evaluate and treat her when she presented at the hospital in approximately the 32nd week of pregnancy with complaints of abdominal pain, she delivered a baby at home on July 1, 1997 unattended by medical personnel. The baby emerged in a footling breech position, and was later determined to have died of asphyxia because its head had been wedged in the birth canal. Plaintiff claims that she suffered great emotional pain as a result of this event and its aftermath. The complaint alleges that plaintiff's baby was born alive, and names the baby's estate and the baby's father as coplaintiffs. Wyckoff brought a third-party action against Dr. Irving Spodek, the physician who allegedly treated plaintiff on her final visit to Wyckoff prior to the home birth.

Following pretrial disclosure, Wyckoff and Spodek moved for summary judgment dismissing the complaint on the ground that the baby had been stillborn and, thus, under the holding of Tebbutt v Virostek (65 NY2d 931 [1985]), plaintiff was precluded from claiming damages. At the time the motion was made, the prevailing rule under Tebbutt was that a mother could not recover for emotional injuries when medical malpractice caused a stillbirth, absent a showing that she had suffered a distinct physical injury.

In opposition to the motion, plaintiff contended that the baby had briefly lived. The Civil Court denied the summary judgment motion, concluding that the record presented on the motion did not establish as a matter of law that plaintiff's baby was stillborn.

Thereafter, the Court of Appeals overruled Tebbutt, holding in Broadnax v Gonzalez (2 NY3d 148, 155 [2004]) that, "even in{**24 Misc 3d at 95} the absence of an independent injury, medical malpractice resulting in miscarriage or stillbirth should be construed as a violation of a duty of care to the expectant mother, entitling her to damages for emotional distress." This rule was further refined in Sheppard-Mobley v King (4 NY3d 627 [2005]). There, as the result of an ineffective chemical abortion, an infant was born alive, but with severe impairments resulting from the chemicals that had been administered to the mother. The Court held that Broadnax did not apply because "a child born alive may bring a medical malpractice action for physical injuries inflicted in the womb" (id. at 637). However, the plaintiff mother was permitted to proceed only to the extent that she sought damages for emotional harm that she had suffered as a result of an injury "independent of the birth" (id. at 638). The parties to this appeal appear to accept Broadnax and Sheppard-Mobley as standing for the proposition that where medical malpractice is found to have occurred in connection with a pregnancy and childbirth, a claim for emotional injury lies for a mother only if the baby is stillborn, and that where the baby is born alive, even if the baby lives only for a brief period and never attains consciousness, the mother can recover for emotional harm only if she suffers such harm as the result of an independent physical injury (see generally Mendez v Bhattacharya, 15 Misc 3d 974 [2007]).

In 2005, after the case had been placed on the trial calendar, plaintiffs served an amended expert witness disclosure, a notice of medical report, and a further expert disclosure. This was the first indication that plaintiffs would call an expert witness at trial to establish that plaintiff suffered emotional injuries. In light of the Court of Appeals' decision in Broadnax, Wyckoff and the third-party defendant moved to preclude plaintiff from eliciting expert testimony at trial, contending that recovery for such injuries depended upon plaintiff proving that the baby had been stillborn, and that plaintiff was judicially estopped from taking this position, which was at odds with the facts as pleaded and as plaintiff had argued in opposition to the motion for summary judgment dismissing the complaint. In an order dated October 5, 2005, the Civil Court (Peter Paul Sweeney, J.) denied the motion and directed plaintiff to amend the complaint to allege that plaintiff's baby was stillborn, finding that the doctrine of judicial estoppel did not apply when a party took contradictory positions within the context of a single lawsuit. Upon reargument, the court modified its prior ruling by noting that the{**24 Misc 3d at 96} doctrine of judicial estoppel could apply when contradictory positions were taken in the context of the same lawsuit. However, the court adhered to its prior determination denying the motion, holding that its denial of the original motion for summary judgment had been limited to a finding that neither party had made a prima facie showing as to whether the baby had been stillborn, and that although there were instances where judicial estoppel could apply when contradictory positions were taken in the context of the same lawsuit, inasmuch as Wyckoff and third-party defendant had been given a full opportunity to conduct discovery after plaintiff changed her position, they would not be prejudiced by plaintiff's change in position.

The evidence adduced over the course of the 10-day trial showed that plaintiff was first treated at Wyckoff during her pregnancy in April 1997 when she presented with headache, fever and lower abdominal pain and was hospitalized for six days. On June 18, 1997 plaintiff returned to Wyckoff with complaints of pain, lower abdominal pain, and spotting, and was admitted for the purpose of ruling out labor. She was treated with a drug that relaxes the uterine muscles and is used to stop premature labor, and was placed on a fetal monitor. Also, a group B strep culture was taken, and an antibiotic was administered. Plaintiff was discharged on June 23rd with a diagnosis of cervicitis.

On June 25, 1997 plaintiff was again admitted to Wyckoff with similar complaints. During this admission, she received another drug used to prevent or stop premature labor, and was ...


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