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Romanelli v. Jones

Supreme Court of New York, Second Department

January 15, 2020

Charles Romanelli, etc., appellant,
v.
Sadie Moss Jones, etc., et al., defendants, Keith B. Lescale, etc., et al., respondents. Index No. 1074/13

          Argued - June 11, 2019

         D61851 T/afa

          John H. Fisher, P.C. (Powers & Santola, LLP, Albany, NY [Michael J. Hutter], of counsel), for appellant.

          Feldman, Kleidman, Coffey, Sappe & Regenbaum LLP, Fishkill, NY (Wayne M. Rubin of counsel), for respondents.

          JOHN M. LEVENTHAL, J.P. JOSEPH J. MALTESE BETSY BARROS FRANCESCA E. CONNOLLY, JJ.

          DECISION & ORDER

         In an action to recover damages for medical malpractice, etc., the plaintiff appeals from a judgment of the Supreme Court, Putnam County (Paul I. Marx, J.), entered March 8, 2017. The judgment, upon an order of the same court dated February 15, 2017, granting that branch of the motion of the defendants Keith B. Lescale and Hudson Valley Perinatal Consulting, PLLC, which was for summary judgment dismissing the complaint insofar as asserted against them, dismissed the complaint insofar as asserted against those defendants. The notice of appeal from the order is deemed to be a notice of appeal from the judgment (see CPLR 5512[a]).

         ORDERED that the judgment is reversed, on the law, with costs, that branch of the motion of the defendants Keith B. Lescale and Hudson Valley Perinatal Consulting, PLLC, which was for summary judgment dismissing the complaint insofar as asserted against them is denied, the complaint is reinstated insofar as asserted against those defendants, and the order is modified accordingly.

         On September 30, 2011, the plaintiff's decedent, Gia McGinley, died as a result of a uterine rupture and hemorrhage sustained during an attempted vaginal birth after caesarian section (hereinafter VBAC) at the decedent's home assisted by certified nurse midwife Sadie Moss Jones. Thereafter, the plaintiff, as the administrator of the decedent's estate and in his individual capacity, commenced this action against, among others, Keith B. Lescale and his medical practice, Hudson Valley Perinatal Consulting, PLLC (hereinafter together the defendants). Lescale, a board-certified obstetrician and gynecologist specializing in maternal-fetal medicine, provided blood testing and ultrasound studies to the decedent on four visits during the decedent's pregnancy, the last of which occurred two days before the decedent's death.

         The plaintiff alleged in the bill of particulars, inter alia, that Lescale departed from the standard of care in failing to advise the decedent and Moss Jones against a home birth based upon the fact that the fetus was suspected to be macrosomic, or very large for its gestational age, the decedent's advanced age, the fact that the decedent was past her due date, and the fact that the decedent had previously given birth by cesarian section. The plaintiff further alleged that Lescale failed to inform the decedent that "a nurse midwife was not an appropriate care provider for her high risk pregnancy and labor and delivery," and failed to advise the decedent and Moss Jones that a prior cesarean delivery was "an absolute contraindication to planned home birth."

         The Supreme Court granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them. The court determined that the defendants established that it was not within Lescale's limited scope of duty to, inter alia, advise the decedent of the risks attendant to VBAC home birth under the circumstances, and that, even if it were within the scope of his duty, Lescale established, as a matter of law, that the alleged failure to so advise or warn the decedent was not a proximate cause of the decedent's injury or death. We reverse.

         "Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied upon by the patient" (Leigh v Kyle, 143 A.D.3d 779, 782 [internal quotation marks omitted]). The existence and scope of a physician's duty of care is a question of law to be determined by the court (see Kingsley v Price, 163 A.D.3d 157, 161; Koeppel v Park, 228 A.D.2d 288, 289).

         Here, in support of their contention that it was not within Lescale's limited scope of duty to advise the decedent and Moss Jones against the planned VBAC home birth, the defendants relied upon Lescale's affidavit, in which he averred that, although he is board-certified in obstetrics and gynecology, he limited his practice solely to maternal-fetal medicine. In this regard, his practice is "entirely consultation based, consisting primarily [of] performing and interpreting ultrasounds." Lescale averred that his involvement with issues concerning delivery was "quite limited," and he did not "ever get involved in or make recommendations regarding the method of delivery."

         Lescale averred that he would generally see a pregnant patient for three ultrasound scans, with the final scan performed at 32 to 34 weeks of gestation. However, on September 28, 2011, when the decedent's pregnancy was at over 41 weeks of gestation, Lescale performed a fourth biophysical profile ultrasound upon the referral of Moss Jones. At that visit, Lescale estimated the fetal weight as approximately 10 pounds, 9 ounces, which is over the 90th percentile for the gestational age. Lescale's medical records indicated that the fetus was "suspected" to be macrosomic. Since Moss Jones's referral indicated that the decedent did not want to be informed of the fetal weight, Lescale did not tell the decedent the fetal weight, but, instead, only told the plaintiff.

         Lescale stated in his affidavit that he was aware "at this visit that [the decedent] still planned a trial of labor at home," and averred that the decedent did not ask him for his opinion regarding her plan and its risks. He stated that "home deliveries and VBACs were outside [his] area of expertise, and [he] was not familiar with their risks." Lescale opined that, within his limited duty, the standard of care did not require him to inform the decedent of the risks and complications associated with a VBAC home birth with a nurse midwife as he was "not the medical provider primarily handling" the decedent's pregnancy, and was not requested by ...


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