The opinion of the court was delivered by: Saxe, J.
Appellate Division, First Department
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. David B. Saxe Karla Moskowitz Leland G. DeGrasse Sheila Abdus-Salaam, JJ.
Defendant Aruna Mishra appeals from an order of the Supreme Court, Bronx County (Lucindo Suarez, J.), entered October 20, 2010, which denied her motion for summary judgment dismissing the complaint as against her. Kaufman Borgeest & Ryan LLP, Valhalla (Jacqueline Mandell of counsel), for appellant. The Jacob D. Fuchsberg Law Firm, LLP, New York (Leslie D. Kelmachter and Jay A. Wechsler of counsel), for respondents. SAXE, J.
This appeal concerns the tragic stillbirth of an infant at the Bronx-Lebanon Hospital Center on October 13, 2003, in particular, the parents' malpractice claim against Dr. Aruna Mishra, the attending physician who delivered the stillborn infant by emergency c-section.
It is undisputed that when the parties arrived at the hospital's labor and delivery facility that morning, the infant was still alive. There is testimony that they arrived at the hospital emergency room at approximately 9:00 a.m., and that plaintiff mother was at the Labor and Delivery unit changing into a hospital gown at 10:32 a.m. The record contains some inconsistencies as to exactly when indications of fetal distress began; however, these details are not relevant to the issue of Dr. Mishra's liability, since it is undisputed that she was not called in until 11:07 a.m. Nevertheless, the following timetable is useful to clarify the series of events underlying the lawsuit, with the understanding that there may be some disagreement regarding the exact timing of these events. 10:42 a.m.A fetal heart monitor is attached, and an initial fetal heart rate (FHR) of 140 beats per minute (bpm), a normal rate, is noted. 10:47 a.m. Fetal monitor tape shows FHR deteriorating to 60 bpm before rebounding. 10:52 a.m.-Fetal monitor tape shows further 11:04 a.m. bradycardic episodes with FHR 60 bpm. 11:04 a.m. Nurse has difficulty locating the fetal heart rate, contacts resident Dr. Rachana Gavara, who finds low heart rate, and contacts Dr. Mishra, the attending physician. 11:07 a.m. Dr. Mishra examines plaintiff for the first time, diagnoses fetal distress, and calls for an immediate c-section; anesthesiologist is contacted. Dr. Mishra begins preparing for surgery. 11:11 a.m. Bedside sonogram apparently detects no fetal heart rate (Chart notation: "Sono no heart rate?"). 11:16 a.m. Plaintiff on the operating table & receiving anesthesia. 11:19 a.m. C-section performed by Dr. Mishra.
This lawsuit against the hospital and the hospital staff members involved in plaintiff's care asserts, inter alia, claims of negligence, medical malpractice, and the infliction of emotional distress, based upon those defendants' alleged failure to timely notice the fetal bradycardia recorded by the fetal monitor from at least 10:47 a.m. onward, and the failure to take timely appropriate steps in response. However, none of these claims are being pressed against Dr. Mishra. To the extent that the case concerns Dr. Mishra, plaintiffs no longer allege that any negligence on her part contributed to the fetus's death.
It is undisputed that Dr. Mishra was first called in at 11:07 a.m., at which time she diagnosed fetal distress, directed an emergency c-section, and began preparing to perform the procedure. Plaintiffs failed to show that Dr. Mishra acted improperly in her diagnosis of fetal distress and in her direction of an emergency c-section. Nor is there any allegation or showing that she was negligent by allowing an excessive period of time to elapse after directing the emergency c-section.
Being unable to proceed with a claim that Dr. Mishra contributed to the fetus's death by failing to timely perform a c-section, plaintiffs advance a theory of liability that is rather extraordinary when pressed against a doctor trying to save the life of a neonate. It is based on the notion that Dr. Mishra should not have proceeded with the c-section because in the intervening minutes between her diagnosis of fetal distress and her commencement of the procedure, it appeared that the fetus had died. Consequently, plaintiffs assert, it was an act of medical malpractice for Dr. Mishra to continue with the surgical procedure and all its potential complications and risks. The claimed injury to the plaintiff is not any complication that actually resulted from the emergency c-section, but "the risks and complications inherent in this surgery including scarring, infection and death." Since there is no indication that plaintiff either died or developed an infection, the only claimed injuries that actually resulted from Dr. Mishra's alleged negligence are scarring at the incision line and the increased probability that future pregnancies will need to be delivered by c-section.
To establish her entitlement to summary judgment, defendant was required to show, prima facie, that she did not depart from good and accepted medical practice in her treatment of plaintiff mother (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ). Dr. Mishra made the requisite prima facie showing with the affirmation by her expert, who asserted, within a reasonable degree of medical certainty, that the appropriate procedure for plaintiff, who presented with a fetus in distress, was the performance of an emergency cesarean section.
The question is whether the affirmation by plaintiffs' expert successfully raises a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d at 324-325; Rebozo v Wilen, 41 AD3d 457, 458 ). The expert asserted that Dr. Mishra departed from accepted standards of care by failing to call a halt to the properly ordered c-section once the fetal monitor and sonogram failed to detect a fetal heartbeat.
Plaintiffs emphasize that summary judgment is generally denied when the parties' medical experts disagree (citing Frye v Montefiore Med. Ctr., 70 AD3d 15 ). However, competing experts almost always disagree; the question here is whether the claim of plaintiffs' expert, that performing a c-section was a departure, is sufficiently supported in the record to raise an issue for the trier of fact. I conclude that the opinion offered by plaintiffs' board-certified expert lacks sufficient foundation to raise an issue of fact. Indeed, on this record, there is no merit to ...