A.H. v. Fiasconaro
| Docket Number | Index No. 511880/15 |
| Decision Date | 17 August 2022 |
| Citation | 2022 NY Slip Op 32808 (U) |
| Parties | A.H., an infant by his mother and natural guardian, A.B., and A.B., individually, Plaintiffs, v. SANTO FIASCONARO, M.D., UNIQUE PERINATAL CARE, P.C., JAQUELINE BUSH, M.D., RICHARD ZUNIG, M.D. DAPHNE LANDAU, M.D. AMIR FAZELL, M.D., AND NEW YORK METHODIST HOSPITAL, Defendants. |
| Court | New York Supreme Court |
The following e-filed papers read herein: NYSCEF No.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 132-162. 184-208
Affidavits/ Affirmations in Reply 264-265, 270, 266-269
Other Papers:
Upon the foregoing papers in this action alleging medical malpractice and lack of informed consent, defendants Jacqueline Bush, M.D., s/h/a Jaqueline Bush, M.D., (Dr Bush), Richard Zuniga, M.D., Daphne Landau, M.D., Amir Fazeli, M.D., and New York Methodist Hospital (Methodist)[1] move (in motion [mot.] sequence [seq.] number [no.] seven), for an order, pursuant to CPLR 3212 dismissing the complaint of plaintiffs A.H., an infant by his mother and natural guardian, A.B., and A.B., individually (hereinafter the infant plaintiff and plaintiff respectively); and severing the action against these defendants. Defendant Unique Perinatal Care, P.C. ("UPC") moves (in mot. seq. no. eight) for summary judgment dismissing plaintiffs' complaint in its entirety as against it.[2] Defendant Santo Fiasconaro, M.D., (Dr Fiasconaro) moves (in mot. seq. no. nine) for an order pursuant to CPLR 3212: (1) granting summary judgment dismissing plaintiffs' complaint and any and all claims, including the claim of informed consent; and/or (2) awarding partial summary judgment dismissing the claims of lack of informed consent in their entirety; and/or (3) awarding partial summary judgment dismissing the third cause of action for derivative claims as asserted by the plaintiff mother.
On January 16, 2014, plaintiff A.B. (plaintiff), then 30 years old, saw Dr. Fiasconaro, an obstetrics and gynecology doctor (OB-GYN). She was examined and tests were performed that confirmed that she was pregnant with an expected due date of September, 2014. Dr. Fiasconaro had delivered plaintiffs older child in 2012. Laboratory results taken on February 15, 2014, by Dr. Fiasconaro revealed that plaintiff had an elevated white blood cell (WBC) count of 13.2. She continued seeing Dr. Fiasconaro for her prenatal care but as he did not perform sonograms in his office, he referred her to Radiology Associates of Brooklyn, where she had sonograms performed in January and February. On March 1, 2014, plaintiff began receiving further prenatal care and sonograms at New Beginnings Perinatal Center where she was seen by Dr. Hassan Wehbeh. She was seen by Dr. Wehbeh on April 5 &26, 2014 and May 17, 2014. At the May 17, 2014 visit, plaintiffs cervical length was measured at 10 millimeters (1 centimeter), which he informed her presented an increased risk of spontaneous delivery before 33 weeks. Dr. Wehbeh recommended a repeat ultrasound in a few days and prescribed Crinone 8% vaginal gel. Plaintiff saw Dr. Fiasconaro on May 20, 2014, and he gave her a referral slip to Yevgeniya Pozhamy, M.D. (Dr. Pozharny) at UPC for a second opinion. On May 22, 2014, plaintiff went to New Beginnings for a transabdominal and transvaginal ultrasound and her cervical length was again measured at 10 millimeters (I centimeter). A fetal fibronectin[3] test was also conducted with negative results.
Plaintiff saw Dr. Pozharny on May 23, 2014, for a second opinion due to the diagnosis of a short cervix. Dr. Pozharny performed an ultrasound, and informed plaintiff that she had an increased risk of pre-term delivery given her shortened cervix length and prescribed Prometrium (Progesterone). On May 26, 2014, a transabdominal and a transvaginal ultrasound were performed at UPC which showed that plaintiffs cervical length was 1.5 centimeters. On June 2, 2014, a transabdominal ultrasound and a transvaginal ultrasound performed at UPC revealed that the closed cervical length was 1 centimeter with no funneling noted. A fetal fibronectin test performed that day was negative. Plaintiff saw Dr. Fiasconaro for visits on June 5, 2014, and June 12, 2014, and Dr. Pozharny for visits on June 9, 2014, and June 13, 2014.
On June 16,2014, plaintiff presented to Dr. Pozharny with complaints of abdominal discomfort and a fetal fibronectin test was conducted that came back positive, which, according to Dr. Pozharny, meant that the odds of delivery in 2 weeks were 50/50, perhaps higher as plaintiffs cervix was shortened. Plaintiff returned to the office on June 17, 2014, and Dr. Pozharny recommended that she take steroids. Dr. Pozharny testified that this was important as plaintiff was at risk for a preterm delivery and the steroids would help to increase fetal lung development, decrease the occurrence of neonatal intracranial bleeds or brain bleeds (Dr. Pozhamy's tr at p. 95, lines 2-15). Plaintiff declined and requested that another fetal fibronectin test be conducted, the result of which was negative. On June 23, 2014, plaintiff returned to see Dr. Pozharny, and transabdominal and transvaginal ultrasounds were performed which revealed that her cervical length was 1.3 centimeters and stable and that the cervix was closed. A fetal fibronectin test was conducted at this visit which was negative, and Dr. Pozharny again asked plaintiff to take steroids and she declined. Plaintiff had a regularly scheduled visit with Dr. Fiasconaro on June 26, 2014. On July 1, 2014, plaintiff presented to Dr. Pozharny with complaints of abdominal and back discomfort. Transabdominal and transvaginal ultrasounds were performed which revealed a cervical length of 1.2 centimeters. However, upon examination, Dr. Pozharny found irritability on toco and some contractions, as well as dilation of 2 to 3 centimeters. A fetal fibronectin test was also conducted on this date and the result was positive. Dr. Pozharny directed plaintiff to immediately go to Methodist, as this was where Dr. Fiasconaro had privileges.
Plaintiff arrived at the Methodist Emergency Room (ER) on July 1, 2014, at 4:21 p.m. and was assessed in triage by Drs. Fazeli and Landau. She was noted to be 29 weeks and 2 days pregnant at this time. Plaintiff was examined and found to be 4 centimeters dilated with 50% effacement and was experiencing contractions every 1 to 2 minutes. She was admitted to the Labor and Delivery unit after discussion between Drs. Fazeli and Fiasconaro. At 5:20 p.m., Betamethasone, a steroid for fetal lung maturity, was administered to plaintiff. Terbutaline, a tocolytic used to decrease contractions, was administered at 5:36 p.m. and magnesium sulfate was administered for neuro-prophylaxis at 5:44 p.m. At 5:46 p.m., plaintiffs uterus was noted to be irritable, and the fetal heart rate (FHR) was 130 beats per minute. Laboratory results taken at 6:24 p.m. revealed an elevated WBC count of 21.3 and lower hemoglobin/hematocrit levels of 10.0 and 30.5 respectively. Plaintiff's heart rate was noted to be slightly elevated at 104 beats per minute at 10:00 p.m.
Dr. Bush, a maternal-fetal medicine specialist was consulted and examined plaintiff at 11:27 p.m. on July 1, 2014, for pre-term labor and elevated WBC. Plaintiff informed Dr. Bush that she was under the treatment of Dr. Alan Dosik, a hematologist, since September 2013 in connection with diagnosed leukocytosis in September of 2013, when her WBC count was 16. Upon examination of plaintiff. Dr. Bush found a gravid uterus with mild tenderness, a pulse rate ranging from 115 to 129, and a Category 1 FHR. Dr. Bush found that there was clinical evidence of chorioamnionitis[4] because plaintiff s WBC count had increased from 13 at her first visit with Dr. Fiasconaro to 21.3, and because there was mild uterine tenderness and tachycardia. Dr. Bush advised that the antibiotics Ampicillin and Gentamycin be administered and recommended to Dr. Fiasconaro that the delivery process should be commenced. A neonatal intensive care unit consult also appears to have taken place at this time. Dr. Bush testified that she discussed the risks of prematurity and infection with plaintiff at this time. (NYSCEF Doc No. 143, Dr. Bush's tr. at p. 73, line 13; p. 74, line 14; p.76, lines 5-20).
Laboratory results taken at 12:52 a.m. on July 2, 2014, seven hours after steroids were administered, showed an increased WBC of 25.0. Pitocin was administered at 1:33 a.m. Shortly thereafter, Dr. Fiasconaro examined plaintiff and found that the cervix was dilated 6 centimeters, the fetus was 100% effaced, and the fetal station was -3. She was experiencing contractions 2 to 3 minutes apart, and the FHR was 135 beats per minute with moderate variability, and positive accelerations and no decelerations. Plaintiffs heart rate remained elevated at 116 beats per minute. Dr. Fiasconaro examined plaintiff at 4:53 a.m., and observed that the labor was not progressing and decided to stop administering Pitocin in preparation for a cesarean section delivery. The record reveals that plaintiff signed a consent form for the cesarean section delivery at 5:31 a.m. Dr. Fiasconaro noted that the indication for cesarean delivery was labor dystocia and suspected chorioamnionitis with a failure to progress during the first stage of labor.
The male infant plaintiff was delivered by Dr. Fiasconaro via cesarean section, at 6:31 a.m., on July 2, 2014, weighing 3 pounds. The infant plaintiffs respiration was noted to be labored with grunting, nasal flaring, with mild subcostal retractions, and...
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