Hippocrates Mertsaris v. 73rd Corp.

• Decision Date: 17 December 1984
• Parties: HIPPOCRATES MERTSARIS, et al., Plaintiffs-Respondents, v. 73RD CORP. d/b/a Physicians' Hospital, et al., Appellants, and Emmanuel G. Vernadakis, et al., Defendants; Constantine A. Gotsis, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 792

482 N.Y.S.2d 792

105 A.D.2d 67

HIPPOCRATES MERTSARIS, et al., Plaintiffs-Respondents, v. 73RD CORP. d/b/a Physicians' Hospital, et al., Appellants and Emmanuel G. Vernadakis, et al., Defendants Constantine A. Gotsis, Defendant-Respondent.

Supreme Court, Appellate Division,

Second Department.

Dec. 17, 1984.

Morris, Duffy, Ivone & Jensen, New York City (Patricia D'Alvia, Michael T. Ivone and Andrea M. Alonso, New York City, of counsel), for appellant 73rd Corp. d/b/a Physicians' Hosp.

Martin, Clearwater & Bell, New York City (Neill T. DeTolla and John L.A. Lyddane, New York City, of counsel), for appellant Francis S. DiFabio.

Deffina, Blau & LoPresti, P.C., New York City (Steven Bennett Blau, New York City, of counsel), for appellant Nicholas B. Arabos and defendant Emmanuel Vernadakis.

Schneider, Kleinick & Weitz, P.C., New York City (Harvey Weitz and Brian J. Shoot, New York City, of counsel), for plaintiffs-respondents.

Schiavetti, Begos & Nicholson, New York City (Norman Bard, Sandra Krevitsky and Stephen Geisler, New York City, of counsel), for defendant-respondent Constantine A. Gotsis.

Before TITONE, J.P., and GIBBONS, O'CONNOR and RUBIN, JJ.

O'CONNOR, Justice.

In this medical malpractice action, the jury concluded that the departures of three defendants from accepted medical standards were the proximate cause of the infant plaintiff's athetoid cerebral palsy and awarded damages in the principal sum of $7,500,000. We now hold that the jury's verdict as to some of the theories submitted with respect to these three defendants was not supported by the evidence. Accordingly, there must be a new trial.

I. THE BIRTH

On September 19, 1974, at approximately 11:30 P.M., Evangelina Mertsaris, a 41-year-old physician and mother of one, went into labor after an uncomplicated pregnancy. When notified at the onset of labor, Dr. Nicholas Arabos, a specialist in obstetrics and gynecology who had delivered Mrs. Mertsaris' first child in 1971, directed the expectant parents to Physicians' Hospital (hospital).

After admission to the hospital at 1:30 A.M. (now September 20, 1974), the patient was brought to the labor room area. Although no house physician performed an examination of the patient, Nurse Patricia Fitzpatrick monitored the progress of labor, noting the frequency of contractions and the fetal heart rate, and performed a vaginal or rectal examination. At 1:35 A.M. the nurse telephoned Dr. Arabos to notify him of the patient's admission and progress in labor. The hospital chart indicates that at 1:30 A.M. the mother's contractions were every three minutes and moderate and the fetal heart rate was 140 and regular. Over the telephone, Dr. Arabos prescribed several drugs, including demerol (a pain killer), which plaintiffs' expert witnesses at trial conceded did not contribute in any way to the infant plaintiff's condition.

Dr. Arabos arrived at the hospital at 2:00 A.M. and performed a vaginal examination of the patient. He found that the cervix was fully effaced and dilated, meaning (by definition) that the patient had progressed to the second stage of labor. He also determined that contractions were four minutes apart (this just after administration of demerol) and that the "station" was minus two (meaning that the fetal head was two centimeters above the pelvic spines which form the entrance to the birth canal). Immediately after completing the examination and without directing an X-ray pelvimetry (to rule out the possibility of cephalopelvic disproportion, i.e., disproportion between the size of the presenting part of the fetus, usually the head, and that of the mother's pelvis), Dr. Arabos ordered the administration of pitocin, an oxytocin, to speed labor, because, as he testified at trial, contractions had begun to slow down and he was dealing with a desultory labor (dystocia). The hospital records, however, took no note of uterine dysfunction and indeed noted that labor was good and active. In any event, within five minutes of the examination, the pitocin, which experts at trial universally agreed can cause compression of the umbilical cord by virtue of the uterine compressions it induces, and can impede the flow of blood and oxygen to the fetus, was hanging over the bed being infused intravenously to the expectant mother.

During this steady drip of eight to 10 drops per minute that continued up to delivery more than one hour later, three notations were recorded in the hospital record relating to the patient's contractions and the fetal heart rate. According to the record, just after administration of the pitocin at approximately 2 A.M., contractions were two to three minutes apart and moderate and the fetal heart rate was 132; at 2:30 A.M., contractions were still moderate and coming every two to three minutes, and the fetal heart rate was 136; and at 2:45 A.M. the patient had contractions and was "and the fetal heart rate was 136. Apparently these were the only recorded entries, all made by Nurse Fitzpatrick who, while claiming she monitored the patient every 10 minutes, nevertheless admitted at trial that she was in and out of the delivery room as she prepared the patient for delivery.

As for Dr. Arabos, he maintained that up until 2:45 A.M. he monitored the patient "many times" (notwithstanding the fact that section 41.59 of the New York City Health Code required a physician to maintain "continuous observation" when a potentially dangerous drug like pitocin was administered). Indeed, upon further examination, the doctor admitted that at this time he went to the cafeteria on another floor, where he talked with Dr. Francis DiFabio, the attending anesthesiologist, and the patient's husband, a second-year resident physician. Dr. Arabos stated that he was in the cafeteria for five minutes, which estimate later became five to 10 minutes, and he eventually conceded that it could well have been 20 minutes. When he left the cafeteria, he did not go back to the labor room but instead "monitored" the patient from the hall across from the labor room.

At approximately 3:00 A.M., Mrs. Mertsaris was wheeled to the delivery room with pitocin still being administered to her. Dr. DiFabio, the anesthesiologist, gave her general anesthesia at about 3:08 A.M. During the 15 minutes or so in the delivery room prior to birth, Nurse Fitzpatrick did not monitor the fetal heart rate. Dr. DiFabio, who admitted that it was his responsibility to monitor the fetal heart rate while the mother was in the delivery room so as to be able to correct any condition of hypoxia, i.e., deprivation of oxygen to the brain, admitted on cross-examination that he did not listen to the baby's heart rate during the time "it was in the mother".

At 3:16 A.M., Hippocrates Mertsaris, the infant plaintiff, was born by normal spontaneous delivery but in obvious respiratory distress. The hospital record noted that at one minute after birth the baby had absolutely no muscle tone, no reflexes, no respiration, slight cyanosis (bluishness) and a heart rate of 160, resulting in an Apgar score of roughly 3 (optimal 2 for each component, maximum score of 10). At this point, Dr. Arabos, who testified that resuscitation was beyond his field of expertise, cut the umbilical cord and directed his attention to delivering the placenta (found to be normal), as well as repairing the episiotomy. He turned the care of the child over to Dr. DiFabio and Nurse Fitzpatrick.

Dr. DiFabio maintained that after taking the Apgar score one minute after birth, he suctioned the baby's airway with a laryngoscope to clear it of obstructions. Although qualified to insert an endotracheal tube, Dr. DiFabio began, anywhere from one to two minutes after birth, resuscitation by means of an ambubag, comprised of a mask that fits over the infant's mouth and a tube connected to the oxygen supply. According to Dr. DiFabio, he placed the baby on the mother's chest, stood at the head of the delivery table, reached over the mother and with one hand holding the child, used the other hand to hold the mask on the child's face, to squeeze oxygen into the child's mouth, and to monitor the resuscitative efforts. The doctor's notations in the hospital record indicate that the child, suffering from "protracted apnea" (absence of respiration), began crying four minutes after birth, at 3:20 A.M. Dr. DiFabio testified that the infant breathed two to three minutes before that. DiFabio allegedly cared for the infant between two and 10 minutes, after which the baby was placed in an incubator. On cross-examination, however, the doctor claimed that the infant was in the incubator during all his resuscitation efforts. Dr. DiFabio denied ordering the drug nalline for the child (although his counsel conceded as much on summation), and could not remember giving the nurse any instructions as to the resuscitation of the child.

On the other hand, according to Nurse Fitzpatrick, who had no special training in resuscitation, it was she who did the initial suctioning with a DeLee's mucous trap, then placed the child in a crib, and within a minute and a half, administered oxygen under pressure to him. This oxygenation, which she claims to have done, not with an ambubag, but with a "completely different" device, produced no initial response but was continued until the infant started shallow irregular respiration. According to her notations in the hospital record, cataloging events from birth to 3:50 A.M., which she said were accurate, the sequence of events was:

"Apneic birth succtioned O2 under pressure administered no response. Stimulated and O2 continued until infant started shallow irregular resp No cry. Infant flaccid. Nalline 2 m. IM administered shallow resp. Continue. Color good. Cry absent-weak. Muscle Tone apptonic some tremmors Dr. Gotsis notified & responded".

The nurse testified that she handled the device to administer the oxygen except for the time she left the delivery room, at...