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Musa Callistro, An Infant, By His Mother and Natural Guardian Jessica Rivera v. Michael W. Bebbington

April 3, 2012


Callistro v Bebbington

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.

Decided on April 3, 2012

Tom, J.P., Friedman, Freedman, Richter, Manzanet-Daniels, JJ.

Judgment, Supreme Court, Bronx County (Howard H. Sherman, J.), entered December 7, 2009, dismissing the complaint, affirmed, without costs. Appeal from order, same court and Justice, entered June 24, 2009, which granted defendants' motion for summary judgment, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff claims that defendants deviated from good and accepted medical practice by failing to perform a cesarean section during his birth on December 10, 2003, and that this failure caused him to sustain a hypoxic event, which is responsible for expressive and language deficits and a developmental disorder that were diagnosed when he was about 4½ years old.

The court granted defendants' motion for summary judgment primarily on the ground that expert evidence disclosed that no hypoxic event occurred during plaintiff's birth and that plaintiff failed to raise a triable issue of fact because his main expert was unqualified to give an opinion, pursuant to the "locality rule" (see Pike v Honsinger, 155 NY 201, 209 [1898]).

We find that, while the locality rule may not apply here, defendants were correctly granted summary judgment because plaintiff did not raise factual issues as to either a departure or a resulting injury.

Defendants submitted the affirmation of Dr. Mary D'Alton, chairperson of the Department of Obstetrics and Gynecology at Columbia University-New York Presbyterian Hospital. Dr. D'Alton, basing her opinion on the medical records and testimonial evidence, a neurological evaluation of plaintiff in July 2008, and the complaint and bill of particulars, opined that defendants did not deviate from good and accepted medical practice, that no hypoxic incident occurred, and that no injury could be reasonably attributed to any act or omission by defendants.

Dr. D'Alton pointed to the post-delivery assessment of arterial and venous umbilical cord blood gases, both of which fell within normal limits. She also noted that plaintiff, whose delivery was complicated by shoulder dystocia and a nuchal cord, was discharged from the hospital three days after his birth, at which time he was "active, alert, voiding and stooling appropriately and feeding on demand." Dr. D'Alton concluded that the normal cord gas measurements and plaintiff's speedy discharge were "entirely inconsistent with an alleged hypoxic injury occurring during labor and delivery." Dr. D'Alton also averred that the fetal monitoring strips, which are in evidence, indicated that any variable decelerations were followed by quick recovery to baseline and that there was no indication of fetal distress.

With respect to the delivery and subsequent treatment, Dr. D'Alton found that defendants effectively managed the delivery complications, including both the shoulder dystocia and the nuchal cord. She noted that Dr. King successfully performed a procedure called a "Wood's screw maneuver" to address the dystocia and deliver the shoulder, and added that nuchal cords occur in about 25% of all births and have no bearing on whether to perform a cesarean delivery.

Dr. D'Alton also noted that the July 2008 neurological evaluation of plaintiff, who was then about 4 years and 7 months old, was inconsistent with plaintiff's allegation that he suffers from "Pervasive Developmental Disorder." The examining physician, Dr. Regina R. DeCarlo, a pediatric neurologist, did not detect any focal or motor neurological deficits. Dr. DeCarlo saw evidence of a developmental disorder of receptive and expressive language and a disorder of articulation, but found that plaintiff otherwise performed at the four-to-five-year level.

In opposition, plaintiff submitted affirmations from Dr. Bruce Halbridge, an obstetrician and gynecologist based in Texas, and Dr. Bruce Roseman, a pediatric neurologist practicing in White Plains, New York. Dr. Halbridge found various departures but limited his findings of causation to the following: He opined that once the mother was admitted on the morning of December 9, 2003 and defendants employed a fetal heart rate monitor, defendants should have abandoned their plan for a vaginal birth and instead delivered plaintiff by cesarean section. According to Dr. Halbridge, as of the morning of December 10, the fetal heart rate monitor had shown a "nonreassuring" pattern of late and variable decelerations. Dr. Halbridge contended that plaintiff was delivered in a hypoxic, "depressed" condition, and that, based on a December 11, 2003 sonogram, he had "possible small bilateral grade 1 subependymal hemorrhages."

Dr. Roseman's affirmation was based on his own examination of plaintiff in December 2008, just after plaintiff turned five. Like Dr. DeCarlo, Dr. Roseman detected speech and language deficits and an articulation disorder. He stated that he agreed with Dr. Halbridge's opinion about the etiology of plaintiff's injuries, and opined that "[t]here is nothing in the child's medical history, ...

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