Keller, O'Reilly & Watson, P.C., Woodbury, N.Y. (Scott C. Watson and Jessica L. Darrow of counsel), for appellant.
Fitzgerald & Fitzgerald, P.C., Yonkers, N.Y. (John E. Fitzgerald, John M. Daly, Eugene S. R. Pagano, Mitchell Gittin, John J. Leen, and Christopher J. Lennon of counsel), for respondent.
WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, SANDRA L. SGROI, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for medical malpractice, the defendant Paul Lograno appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated August 2, 2011, as denied that branch of the motion of the defendants Paul Lograno, Dennis Strittmatter, and Suffolk Obstetrics & Gynecology, LLP, which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against him, and (2) from an order of the same court dated March 27, 2012, which denied his motion, in effect, for leave to reargue the prior motion.
ORDERED that the order dated August 2, 2011, is reversed insofar as appealed from, on the law, and that branch of the motion of the defendants Paul Lograno, Dennis Strittmatter, and Suffolk Obstetrics & Gynecology, LLP, which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against the defendant Paul Lograno is granted; and it is further,
ORDERED that the appeal from the order dated March 27, 2012, is dismissed, as no appeal lies from an order denying a motion for leave to reargue; and it is further,
ORDERED that one bill of costs is awarded to the defendant Paul Lograno.
Two days before her expected delivery date, Vivonne Mitchell (hereinafter the mother) underwent a non-stress test (hereinafter NST) at the defendant Suffolk Obstetrics & Gynecology, LLP (hereinafter SOG). An NST consists of monitoring the fetal heart beat with an electronic fetal heart monitor while the fetus is not stressed. The NST was "non-reactive, " meaning that the fetus's heart rate did not have any accelerations above the baseline. The mother was referred to St. Charles Hospital (hereinafter the hospital) for further evaluation. The mother arrived at the hospital at 11:15 a.m. The defendant Paul Lograno, an employee of SOG, was the on-call doctor at the hospital for SOG patients at the time the mother arrived.
The mother was brought to a labor room for observation. At 12:10 p.m., Lograno reviewed the fetal heart monitor strip, which indicated fetal movement and reactivity. Lograno ordered a biophysical profile for further evaluation of the fetus since the mother had been referred because of a non-reactive NST. The mother returned to the labor room after further testing at 2:35 p.m. Lograno received the results of the biophysical profile and saw the mother at 2:55 p.m.
Lograno discussed with the mother the risks and benefits of certain alternatives, including delivery by cesarean section, and induction of labor through pitocin for vaginal delivery. Lograno admitted the mother to the hospital at 3:00 p.m. with a plan for a vaginal delivery induced by pitocin. Lograno's on-call shift ended at 6:00 p.m., at which time he was relieved by the defendant Dennis Strittmatter. Strittmatter agreed with the plan to deliver with the use of pitocin to induce labor and ordered pitocin at 7:00 p.m. Pitocin was administered at 7:50 p.m. The infant plaintiff was delivered vaginally by Strittmatter at 5:12 a.m. the following day.
The mother, on behalf of the infant plaintiff, commenced this medical malpractice action against Lograno, among others, to recover damages for personal injuries allegedly sustained by the infant plaintiff. The plaintiff alleges that as a result of, inter alia, the failure to perform a cesarian section, he sustained various injuries, including brain damage. Lograno, Strittmatter, and SOG (hereinafter collectively the moving defendants) moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. The Supreme Court denied the motion.
"The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of medical practice, and evidence that such deviation or departure was a proximate cause of injury or damage" (Lau v Wan, 93 A.D.3d 763, 765; see Castro v New York City Health & Hosps. Corp., 74 A.D.3d 1005; Deutsch v Chaglassian, 71 A.D.3d 718, 719; Geffner v North Shore Univ. Hosp., 57 A.D.3d 839, 842). "A defendant physician moving for summary judgment in a medical malpractice action has the initial burden of establishing, prima facie, either the absence of any departure from good and accepted medical practice or that any departure was not the proximate cause of the alleged injuries" (Lau v Wan, 93 A.D.3d at 765; see Shichman v Yasmer, 74 A.D.3d 1316; Larsen v Loychusuk, 55 A.D.3d 560, 561; Sandmann v Shapiro, 53 A.D.3d 537).
Here, Lograno met his initial burden of demonstrating that he did not deviate from accepted medical practice through his deposition testimony and his expert's affidavit (see Garbowski v Hudson Val. Hosp. Ctr., 85 A.D.3d 724, 726). In her affidavit, Lograno's expert, a board-certified obstetrician/gynecologist, Dr. Hilma Yu, opined that, as of the time that Lograno's on-call shift at the hospital was ending, Lograno correctly determined, based on the results of the biophysical profile and the continued fetal heart monitoring tracings, that delivery by cesarean section was not yet indicated (see Lau v Wan, 93 A.D.3d at 765; Sandmann v Shapiro, 53 A.D.3d 537).
Contrary to the Supreme Court's conclusion, Yu did explain both the significance of a non-reactive stress test and the results of the biophysical profile. Yu fully explained the terminology involved in assessing the fetal heart monitoring strips for fetal well-being versus fetal distress. Yu opined that urgent delivery of the infant plaintiff by cesarean section was not indicated, and it was appropriate and within good and accepted medical practice for Lograno ...