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Frye v. Montefiore Medical Center

November 5, 2009


Defendants Montefiore Medical Center, Jack D. Weiler Hospital, Weiler/Einstein Hospital, Barbara Girz, D.O., Norbert Berger, M.D. and Cathy Jarosz, M.D., appeal from an order of the Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered August 6, 2007, which denied their motions for summary judgment.

The opinion of the court was delivered by: Sweeny, 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 Official Reports.

Peter Tom, J.P., Eugene Nardelli, John W. Sweeny, Jr., James M. McGuire, LeLand G. DeGrasse,JJ.


This is a medical malpractice action where the Montefiore Medical Center defendants (WHAECOM) and Drs. Berger, Girz and Jarosz have perfected appeals from the denial of their respective motions for summary judgment dismissing the complaints against them. The facts are as follows:

On October 28, 1999, plaintiff presented at the New York Medical Group (NYMG) and was treated by defendant Dr. Franlina Umali, an internist employed by NYMG. Dr. Umali diagnosed plaintiff with diabetes and prescribed Glucophage, an oral diabetes medicine that helps control blood sugar levels.

Approximately one month later, after presenting at Bronx Lebanon Hospital for vaginal bleeding, plaintiff learned she was pregnant. She returned to NYMG on December 2, 1999 and was seen by defendant Dr. Park, an obstetrician, who ordered a Level 1 sonogram to determine whether the pregnancy was viable*fn1. This sonogram was supervised and evaluated by defendant Berger, a radiologist, who reported a normal 7-week, 5-day pregnancy.

On December 3, Dr. Park ordered plaintiff's admission to WHAECOM due to complications with her pregnancy. At his deposition, Dr. Park stated that NYMG and WHAECOM "co-manage" high-risk diabetic pregnancies such as plaintiff's, and that the purpose of plaintiff's admission to WHAECOM was to place her on insulin and have her "hooked up into the system" that NYMG has with WHAECOM's high-risk perinatologists.

Upon her admission to WHAECOM, plaintiff was examined by an obstetrics resident who reported that the admission was for evaluation of "diabetes in pregnancy." The resident recommended that plaintiff be taken off Glucophage and switched to insulin to better control her blood sugar levels. The resident's report also noted that plaintiff's blood sugar levels were elevated and that the case would be discussed with the director of WHAECOM's obstetrics and perinatology department. There is no indication in the record that this discussion ever took place.

Blood glucose testing was ordered and two units of insulin were administered to stabilize plaintiff's blood sugar levels. This was the only insulin administered during plaintiff's stay at WHAECOM. She was not seen by any of WHAECOM's perinatologists.

On December 4, plaintiff was examined by defendant Long, an attending obstetrician at WHAECOM, who did not order additional insulin, even though she noted high levels of blood sugar. At her deposition, Dr. Long stated that the result of the blood glucose test was 8.8, a reading that showed plaintiff's diabetes was not under control when she entered WHAECOM. Dr. Long did not obtain these test results until after plaintiff was discharged from WHAECOM. Dr. Long also stated that uncontrolled diabetes during pregnancy could result in the development of neural tube defects such as encephaloceles, as well as macrosomic fetus development (i.e., the fetus being large for its fetal age).

Plaintiff was discharged from WHAECOM on December 5 after being seen by defendant Jarosz, another attending obstetrician. Dr. Jarosz did not have plaintiff's blood glucose test results prior to discharging her.

Thereafter, plaintiff's pregnancy was monitored by NYMG's doctors, who informed her that the results of WHAECOM's blood glucose test had measured 8.8, indicating that plaintiff's blood glucose levels were not under control for the three-month period prior to the test.

On March 2, 2000, Dr. Park ordered another sonogram. At his deposition, Dr. Park stated that he considered this to be a Level 2*fn2 sonogram. However, according to Dr. Park, someone unknown to him wrote "pregnancy dates" on the order for the sonogram. On March 16, Dr. Berger supervised a Level 1 sonogram, and reported that the fetus' anatomy was "unremarkable." Dr. Berger contends that he did not get an order to perform a Level 2 sonogram, and that the order requesting a sonogram for "pregnancy dates" was, by its terms, a Level 1 sonogram. In any event, according to Dr. Berger and various other defendants at their respective depositions, NYMG did not have the ability to conduct Level 2 sonograms in house. They testified that a patient requiring such a sonogram would have to be referred out to another facility for that purpose. Dr. Jarosz stated at her deposition that while she was employed at NYMG during the period ...

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