Fritz v. Burman
| Decision Date | 26 June 2013 |
| Citation | 2013 N.Y. Slip Op. 04773,968 N.Y.S.2d 167,107 A.D.3d 936 |
| Parties | James FRITZ, etc., et al., appellants, v. Dmitriy BURMAN, et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Gianfortune & Mionis, P.C., Mineola, N.Y. (Richard P. Stone of counsel), for appellants.
Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr., and Michael K. Chin of counsel), for respondent Dmitriy Burman.
Fumuso, Kelly, DeVerna, Snyder, Swart & Farrel, LLP, Hauppauge, N.Y. (Scott G. Christesen of counsel), for respondent Chinwe Offor.
Lewis, Johs, Avallone Aviles, LLP, Islandia, N.Y. (Seth M. Weinberg of counsel), for respondent Mercy Medical Center.
Westermann, Sheehy, Keenan, Samaan & Aydelott, LLP, White Plains, N.Y. (Timothy M. Smith and Jennifer J. Bennice of counsel), for respondents Marc Behar and Marc S. Behar, M.D., P.C.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and SYLVIA HINDS–RADIX, JJ.
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Nassau County (Phelan, J.), entered December 6, 2011, as granted those branches of the separate motions of the defendant Dmitriy Burman, the defendant Chinwe Offor, the defendant Mercy Medical Center, and the defendants Marc Behar and Marc Behar, M.D., P.C., which were for summary judgment dismissing the medical malpractice cause of action insofar as asserted by the plaintiff James Fritz against each of those defendants, (2) so much of a judgment of the same court dated January 10, 2012, as, upon the order, is in favor of the defendant Mercy Medical Center and against the plaintiffs dismissing the medical malpractice cause of action insofar as asserted by the plaintiff James Fritz against that defendant, and (3) so much of a judgment of the same court dated January 17, 2012, as, upon the order, is in favor of the defendants Marc Behar and Marc S. Behar, M.D., P.C., and against the plaintiffs dismissing the medical malpractice cause of action insofar as asserted by the plaintiff James Fritz against those defendants.
Motion by the respondent Mercy Medical Center on appeals, inter alia, from an order of the Supreme Court, Nassau County, entered December 6, 2011, and a judgment of the same court dated January 10, 2012, to dismiss the appeal from that order insofar as taken against it, in effect, on the ground that the right of direct appeal therefrom terminated upon entry of that judgment. By decision and order of this Court dated August 8, 2012, as amended August 28, 2012, among other things, the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission of the appeals.
ORDERED that one bill of costs is awarded to the plaintiffs, payable by the defendants appearing separately and filing separate briefs.
The appeal from so much of the order as granted those branches of the separate motions of the defendant Mercy Medical Center and the defendants Marc Behar and Marc S. Behar, M.D., P.C., which were for summary judgment dismissing the medical malpractice cause of action insofar as asserted by the plaintiff James Fritz against each of them must be dismissed because the right of direct appeal therefrom terminated with the entry of the applicable judgments in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from those portions of the order are brought up for review and have been considered on the appeals from the judgments ( seeCPLR 5501[a][1] ).
In August 2001, the infant plaintiff, James Fritz, was born with hemolytic disease of the newborn, resulting from an incompatibility between his blood and the blood of his mother. The plaintiffs allege that certain departures from accepted standards of care delayed diagnosis and treatment of his condition, and constituted improper treatment of his condition, resulting in brain injury which manifested itself as a pervasive developmental disorder.
The infant plaintiff exhibited some symptoms of fetal distress as early as July 29, 2001, when his mother was admitted to the defendant Mercy Medical Center (hereinafter Mercy) with a diagnosis of “decreased fetal movement.” On August 12, 2001, the mother returned to Mercy, again complaining of lack of fetal movement, with signs of an abnormal fetal heart rate. The defendant physician Marc Behar prescribed Cervidil to induce labor. At 8:33 p.m., Mercy's laboratory logged in a blood sample from the mother, but the results of the test, which identified the “E” antibody which was causing the infant plaintiff's abnormal blood condition, allegedly were not available until the following morning.
At 9:46 p.m., Behar performed a nonemergency caesarean section. The infant plaintiff was born in a critical life-threatening condition, with no respiratory effort, and a heart rate of 60–to–80 beats per minute. The defendant physician Dmitriy Burman resuscitated the infant, inserting an endotracheal tube, which was removed when the infant purportedly cried. However, in the neonatal intensive care unit, the infant plaintiff's respirations became shallow. Burman attempted to re-intubate the infant twice, but his efforts were unsuccessful. An anesthesiologist was able to successfully re-intubate the infant at 10:35 p.m.
At 11:00 p.m., the infant plaintiff suffered a temporary suspension of breathing, and at 11:10 p.m., the infant plaintiff suffered “seizure like movements ... in the extremities” for which phenobarbital was administered. The defendant physician Chinwe Offor examined the infant plaintiff at approximately 11:00 p.m., and noted that his oxygen saturation level was 52%. After the re-intubation of the infant plaintiff with a tube of a different size, his oxygen saturation level rose. Offor diagnosed the infant plaintiff as suffering from anemia, possibly secondary to blood-group incompatibility, and blood transfusions were administered. At 4:30 a.m. on the next day, Offor placed the infant on high-frequency oscillatory ventilation.
In 2009, the plaintiffs commenced the instant action, inter alia, to recover damages for medical malpractice. After extensive discovery, the defendants separately moved for summary judgment, among other things, dismissing the infant plaintiff's medical malpractice cause of action. In support of their motions for summary judgment, Mercy and Burman submitted expert affidavits concluding that they did not deviate from accepted standards of care. With respect to the issue of proximate cause, Dr. Arnold Goldman stated, in his expert...
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