The opinion of the court was delivered by: Manzanet-Daniels, J.
Decided on April 19, 2012
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.
SUPREME COURT, APPELLATE DIVISION First Judicial Department
John W. Sweeny, Jr.,J.P. Leland G. DeGrasse Sallie Manzanet-Daniels Nelson S. Roman, JJ.
Plaintiffs appeal from a judgment of the Supreme Court, Bronx County (Barry Salman, J.), entered October 1, 2010, dismissing the action against all defendants except Eugene Sidoti, Sr., M.D., and bringing up for review an order, same court and Justice, entered August 25, 2010, to the extent it granted said defendants' motions for summary judgment dismissing the complaint, and plaintiffs and defendant Sidoti appeal from the foregoing order.
SALLIE MANZANET-DANIELS, J.
In December 1997, plaintiff mother, age 27 and pregnant with her first child, came under the care of defendant Dr. Martin Oberlander and his obstetrical group. On August 18, 1998, four days past her due date, plaintiff mother called the obstetric practice, concerned with a perceived decrease in fetal movement. She was instructed to go to the hospital, where she underwent several tests, the results of which were unremarkable. On August 20th, six days past her due date, plaintiff mother underwent a sonogram which showed mild left hydrocephalus with an incidental finding of mild left ventriculomegaly [*fn1]. The nonparty perinatologist who reviewed the films, Dr. Musalli, recommended follow-up to monitor the hydrocephalus, but noted that delivery was not indicated unless the hydrocephalus was "progressive."
A follow-up sonogram four days later, on August 24, showed "mild dilation of the intracranial ventricular system (lateral and third ventricles)," with otherwise normal-appearing symmetric intracranial structures [*fn2]. It is heavily disputed by plaintiffs' and defendants' medical experts as to whether these findings -- a movement of the condition from the left lateral ventricle to both lateral ventricles and the third ventricle -- were indicative of progressive hydrocephalus.[*fn3]
Plaintiff mother was admitted to the hospital on August 26, 1998, for induction of labor. During labor she experienced variable decelerations consistent with compression of the fetal head. She delivered the infant plaintiff vaginally, after a second stage of labor (pushing) lasting more than three hours.
The infant plaintiff was born at 5:44 P.M. on August 27th. The baby weighed 6 pounds, 10½ ounces, and had Apgar scores of 9 at one minute and 9 at five minutes. The infant's head circumference at birth was 36 cm. A hospital pediatrician, identified as Dr. Vega, was present at the delivery. He noted the results of the August 20th sonogram in the chart, but made no reference to the subsequent sonogram on August 24th. Similarly, the history of plaintiff mother taken by the third-year hospital resident makes no reference to the second sonogram.
The hospital's perinatology unit created a card instructing the labor and delivery staff that the mother had been seen by the maternal fetal assessment team and that the infant required a neurology follow-up after delivery for mild hydrocephalus. This card was never placed in the infant plaintiff's chart, despite express instruction to "PLEASE ATTACH THIS CARD TO THE INFANT'S CHART!" Neither Dr. Vega, nor the hospital neonatologist who reviewed the infant plaintiff's history and examined her shortly after birth, nor the infant plaintiff's private pediatrician, referred the infant for a neurological evaluation.
A sonogram of the infant plaintiff's head was performed on August 28th. However, the sonogram was not read until August 31st -- after the infant plaintiff had already been discharged.
The report, dated September 1, 1998, indicated hydrocephalus of the left and right ventricles and the third ventricle, and in addition a "suspicio[n]" of a grade II intraventricular hemorrhage (IVH), a condition that may be associated with a traumatic delivery. The report states, inter alia: "The lateral ventricles are enlarged, including the atria, occipital horns and body. The third ventricle is also dilated. In the lateral ventricle there is echogenic focus suspicious for intraventricular hemorrhage."
Dr. Lenore Katkin, the infant plaintiff's private pediatrician, examined the infant plaintiff in the hospital prior to discharge. She testified that she read the infant's chart prior to the examination and was aware that sonograms had been performed both prenatally and postnatally to assess the infant plaintiff's condition. Dr. Katkin conceded that she had not seen the report of the postnatal sonogram when she discharged the infant plaintiff. At the time she examined the infant plaintiff, she did not know the degree of the infant's hydrocephalus, or whether the condition had changed in any way since the prenatal sonograms. She testified that upon discharge the infant's head was not "visibly" enlarged, but conceded that it was impossible to determine, upon physical examination, whether the ventricles were distended in any way.
Dr. Katkin testified that she did not contact the department where the sonogram had been performed to see whether the results were ready since she had a "verbal report" that the postnatal sonogram showed no change. Dr. Katkin was unaware that the postnatal sonogram showed changes suspicious for IVH; she testified that this finding would not have factored into her evaluation of the infant, even though it was known that the infant had hydrocephalus. Plaintiff mother was told to return to the pediatrician in two weeks for a routine appointment, and to schedule a CT scan in one month's time.
The infant plaintiff was next seen by Dr. Sidoti, Dr. Katkin's associate, on September 10, 1998. Dr. Sidoti examined the infant plaintiff and noted a 3 cm increase in the child's head circumference. This measurement placed the infant above the 95th percentile. Dr. Sidoti wrote that prenatal and postnatal ultrasounds indicated "possible" mild bilateral and third ventricle hydrocephalus, and his impression was a well baby with questionable hydrocephalus. No mention was made of the IVH findings, despite the fact that his office records contained the September 1st sonogram report.
Dr. Sidoti's plan included a possible repeat ultrasound and CT scan and a neurological evaluation in the event head circumference increased or the ventricles appeared larger. He did not, at that time, refer ...