Frye v. Montefiore Med. Ctr.

• Decision Date: 05 November 2009
• Docket Number: No. 4457,No. 49939/02.,49939/02.,4457
• Citation: 2009 NY Slip Op 7963,888 N.Y.S.2d 479,70 A.D.3d 15
• Parties: PAULA N. FRYE, Respondent, v. MONTEFIORE MEDICAL CENTER et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

70 A.D.3d 15

888 N.Y.S.2d 479

2009 NY Slip Op 7963

PAULA N. FRYE, Respondent, v. MONTEFIORE MEDICAL CENTER et al., Appellants, et al., Defendants.

No. 49939/02.

No. 4457

Appellate Division of the Supreme Court of New York, First Department.

Decided November 5, 2009.

Heidell, Pittoni, Murphy & Bach, LLP, New York City (Daniel S. Ratner of counsel), for Montefiore Medical Center and others, appellants.

Leahey & Johnson, PC, New York City (Peter James Johnson, Jr., Peter James Johnson, James P. Tenney, Joanne Filiberti and Rosa M. Batista of counsel), for Norbert Berger, M.D., appellant.

Rende, Ryan & Downes, LLP, White Plains (Roland T. Koke of counsel), for Cathy Jarosz, M.D., appellant.

Meagher & Meagher, P.C., White Plains (Christopher B. Meagher of counsel), for respondent.

OPINION OF THE COURT

SWEENY, J.

This is a medical malpractice action where the Montefiore Medical Center defendants (WHAECOM) and Drs. Berger, Girz and Jarosz have perfected appeals from the denial of their respective motions for summary judgment dismissing the complaints against them. The facts are as follows:

On October 28, 1999, plaintiff presented at the New York Medical Group (NYMG) and was treated by defendant Dr. Franlina Umali, an internist employed by NYMG. Dr. Umali diagnosed plaintiff with diabetes and prescribed Glucophage, an oral diabetes medicine that helps control blood sugar levels.

Approximately one month later, after presenting at Bronx Lebanon Hospital for vaginal bleeding, plaintiff learned she was pregnant. She returned to NYMG on December 2, 1999 and was seen by defendant Dr. Park, an obstetrician, who ordered a level 1 sonogram to determine whether the pregnancy was viable.¹ This sonogram was supervised and evaluated by defendant Berger, a radiologist, who reported a normal seven-week-and-five-day pregnancy.

On December 3, Dr. Park ordered plaintiff's admission to WHAECOM due to complications with her pregnancy. At his deposition, Dr. Park stated that NYMG and WHAECOM "co-manage" high-risk diabetic pregnancies such as plaintiff's, and that the purpose of plaintiff's admission to WHAECOM was to place her on insulin and have her "hooked up into the system" that NYMG has with WHAECOM's high-risk perinatologists.

Upon her admission to WHAECOM, plaintiff was examined by an obstetrics resident who reported that the admission was for evaluation of "diabetes in pregnancy." The resident recommended that plaintiff be taken off Glucophage and switched to insulin to better control her blood sugar levels. The resident's report also noted that plaintiff's blood sugar levels were elevated and that the case would be discussed with the director of WHAECOM's obstetrics and perinatology department. There is no indication in the record that this discussion ever took place.

Blood glucose testing was ordered and two units of insulin were administered to stabilize plaintiff's blood sugar levels. This was the only insulin administered during plaintiff's stay at WHAECOM. She was not seen by any of WHAECOM's perinatologists.

On December 4, plaintiff was examined by defendant Long, an attending obstetrician at WHAECOM, who did not order additional insulin, even though she noted high levels of blood sugar. At her deposition, Dr. Long stated that the result of the blood glucose test was 8.8, a reading that showed plaintiff's diabetes was not under control when she entered WHAECOM. Dr. Long did not obtain these test results until after plaintiff was discharged from WHAECOM. Dr. Long also stated that uncontrolled diabetes during pregnancy could result in the development of neural tube defects such as encephaloceles, as well as macrosomic fetus development (i.e., the fetus being large for its fetal age).

Plaintiff was discharged from WHAECOM on December 5 after being seen by defendant Jarosz, another attending obstetrician. Dr. Jarosz did not have plaintiff's blood glucose test results prior to discharging her.

Thereafter, plaintiff's pregnancy was monitored by NYMG's doctors, who informed her that the results of WHAECOM's blood glucose test had measured 8.8, indicating that plaintiff's blood glucose levels were not under control for the three-month period prior to the test.

On March 2, 2000, Dr. Park ordered another sonogram. At his deposition, Dr. Park stated that he considered this to be a level 2² sonogram. However, according to Dr. Park, someone unknown to him wrote "pregnancy dates" on the order for the sonogram. On March 16, Dr. Berger supervised a level 1 sonogram, and reported that the fetus' anatomy was "unremarkable." Dr. Berger contends that he did not get an order to perform a level 2 sonogram, and that the order requesting a sonogram for "pregnancy dates" was, by its terms, a level 1 sonogram. In any event, according to Dr. Berger and various other defendants at their respective depositions, NYMG did not have the ability to conduct level 2 sonograms in house. They testified that a patient requiring such a sonogram would have to be referred out to another facility for that purpose. Dr. Jarosz stated at her deposition that while she was employed at NYMG during the period 1999-2000, if a fetus was greater than 17 weeks and a NYMG obstetrician ordered a sonogram, it would automatically be a level 2 sonogram. She did not state, however, whether that sonogram would be conducted in house or at another facility.

On May 30, 2000, defendant Harris, an obstetrician with NYMG, diagnosed plaintiff with a diabetic condition wherein glucose is excreted through the kidneys. Dr. Harris referred plaintiff to WHAECOM's outpatient Diabetes in Pregnancy Program (DIPP), and ordered a level 2 sonogram to be performed when plaintiff entered DIPP.

On June 20, plaintiff was seen at DIPP by defendant Girz, an obstetrician/perinatologist employed by WHAECOM. Although Dr. Harris had ordered a level 2 sonogram, Dr. Girz performed a level 1 sonogram. Dr. Girz reported no fetal abnormalities and recommended an additional sonogram on June 27, which, for some reason, was never performed. During her deposition, Dr. Girz stated that a level 2 or fetal anatomy survey should be performed at approximately 20 weeks. If performed later, the ability to visualize abnormalities could be affected by the position of the fetus, as well as its weight and size. Plaintiff was approximately 37 weeks into her pregnancy on June 20.

Dr. Girz agreed that children of diabetic mothers have an increased risk of developing neural tube defects like encephaloceles. She further testified that prior to June 2000, she diagnosed approximately 10 neural tube defects, five of which were encephaloceles. With respect to those cases, Dr. Girz stated they were all diagnosed between 13 and 24 weeks and that the level of the sonogram was not an issue in those cases, since "[y]ou put the transducer on and you see it. It's not that you are particularly doing a level two or Level one ultrasound."

On June 28, with defendant Suarez the attending obstetrician on duty, plaintiff gave birth vaginally to Sherkell, who was quickly diagnosed with occipital encephalocele. This is a sac-like protrusion of the brain and the membranes that cover it through an opening in the back of the skull, and is caused by the neural tube's failure to close completely during fetal development. Dr. Harris testified at her deposition that Sherkell's encephalocele was caused by plaintiff's uncontrolled diabetes. The birth report also indicates that Sherkell had shoulder dystocia and that the encephalocele was ruptured during birth, causing a loss of spinal fluid. His birth weight was 4,734 grams.

During his deposition, Dr. Suarez stated that diabetics tend to have macrosomic babies. When presented with a macrosomic baby, a cesarean section must be considered as an option for delivery. Dr. Suarez also testified that he discussed with plaintiff that the baby was "good sized" and that if labor did not progress the way it was supposed to, a cesarean delivery would be performed. Plaintiff, at her deposition, stated a cesarean delivery was never discussed with her by anyone. Dr. Suarez estimated the baby's weight to be between 4,100 to 4,200 grams, which he did not consider excessive. However, he also stated that his estimated weight of the baby is considered macrosomic for its gestational age, and because of his concern over possible shoulder problems during delivery due to the baby's size, he arranged for a pediatrician to be present for the delivery. Dr. Suarez stated that there is no point during labor when a cesarean delivery is ruled out, as the delivering physician always has the option in an emergency.

Dr. Suarez further stated that in the case of a fetus diagnosed pre-delivery with an encephalocele, a cesarean delivery would "probably be a good precaution to prevent compression of the mass." He indicated that the standard of care requires such delivery under those circumstances, since during a vaginal delivery, the muscles in the vagina compress the head and neck of the baby, which in turn increases the likelihood of a rupture of the encephalocele, resulting in the possible loss of spinal fluid and an open lesion. Dr. Suarez stated that he relies on the radiologist's sonogram report and does not review the films himself. The reports of both Drs. Berger and Girz did not indicate any abnormalities.

At the time of delivery, Dr. Suarez was in the physicians lounge, one floor above the delivery room. He was called when delivery commenced and went to the delivery room. When he got there, the baby had already been delivered by a resident.

Sherkell underwent surgeries to repair the ruptured encephalocele. He has been diagnosed with, inter alia, cerebral palsy, spastic quadriplegia and pervasive developmental disorder. At age four years, three months, he was on a developmental par with a 13-month-old child.

At the conclusion of discovery, each defendant timely moved for summary judgment dismissing the...