Liquori v. Dolkart
| Decision Date | 07 April 2022 |
| Docket Number | 525919 |
| Citation | 204 A.D.3d 1099,166 N.Y.S.3d 352 |
| Parties | Bridgette LIQUORI, Individually and as Parent and Guardian of J.U., an Infant, Respondent, v. Lawrence DOLKART et al., Appellants, et al., Defendant. |
| Court | New York Supreme Court — Appellate Division |
Levene Gouldin & Thompson, LLP, Vestal (Jenilyn M. Brhel of counsel), for Lawrence Dolkart, appellant.
Heidell, Pittoni, Murphy & Bach, LLP, New York City (Daniel S. Ratner of counsel), for Tammy Marie Brant and another, appellants.
Kenneth J. Ready & Associates, Mineola (Gregory S. Gennarelli of counsel), for respondent.
Before: Garry, P.J., Lynch, Clark and Reynolds Fitzgerald, JJ.
Lynch, J. Appeal from an order of the Supreme Court (O'Shea, J.), entered March 21, 2017 in Chemung County, which, among other things, denied motions by defendants Lawrence Dolkart, Tammy Brant and Birth N. Beyond, LLP for summary judgment dismissing the complaint against them.
In February 2012, plaintiff went into preterm labor
at 32 weeks gestation and gave birth to J.U. (hereinafter the infant), who suffered a brain bleed and developed, among other things, cerebral palsy. During the course of the pregnancy, plaintiff received prenatal care from defendant Birth N. Beyond, LLP (hereinafter BNB), a midwifery practice. Defendant Tammy Brant, a certified nurse midwife, was a minority partner of BNB and defendant Lawrence Dolkart – a collaborating physician – was the majority partner, with an interest of around 80%. In January 2012, Dolkart performed a level two ultrasound to assess the infant's kidneys, ultimately finding that they were normal. Dolkart also assisted with the infant's delivery the next month.
Plaintiff commenced this action alleging medical malpractice by BNB, Brant and Dolkart (hereinafter collectively referred to as defendants), among others. As relevant here, plaintiff asserted that, given her medical history – which included four prior preterm deliveries
– defendants departed from the accepted standard of medical care by failing to offer her progesterone treatment to prevent the risk of preterm labor during the subject pregnancy. She further alleged that the failure to do so was a proximate cause of the infant's injuries. Following joinder of issue and discovery, defendants separately moved for summary judgment dismissing the complaint against them. Supreme Court denied defendants’ motions, finding that there were triable issues of fact.1 Defendants appeal.
Initially, during oral argument before this Court, plaintiff conceded that she did not oppose Brant's motion for summary judgment and that the claims against Brant should be dismissed. The record reveals that plaintiff also did not oppose the portions of BNB's and Dolkart's motions seeking dismissal of the claims against them premised upon different theories of malpractice not related to the failure to provide progesterone. Accordingly, those claims of malpractice must also be dismissed (see Burns v. Kroening, 164 A.D.3d 1640, 1641, 84 N.Y.S.3d 643 [2018] ; Genovese v. Gambino, 309 A.D.2d 832, 833, 766 N.Y.S.2d 213 [2003] ; Mortka v. K–Mart Corp., 222 A.D.2d 804, 804, 635 N.Y.S.2d 105 [1995] ).
As for the claim against Dolkart related to the failure to provide progesterone, he argues that he did not owe plaintiff a duty of care in this respect because no patient-physician relationship existed between them and he did not exercise supervisory control over the care provided by BNB so as to be held vicariously liable for any malpractice on its part. He further posits that, even if he did owe a duty of care to plaintiff, he did not deviate from good and accepted medical practice because, at the time of plaintiff's pregnancy, providing progesterone
was not the standard of care in preventing preterm delivery for women with plaintiff's history.
To establish her claim of medical malpractice against Dolkart and BNB, plaintiff bears the burden of demonstrating that they owed her a duty of care, deviated from the accepted standard of care and such deviation was a proximate cause of the infant's injuries (see Marshall v. Rosenberg, 196 A.D.3d 817, 818, 151 N.Y.S.3d 240 [2021] ; Burtman v. Brown, 97 A.D.3d 156, 161, 945 N.Y.S.2d 673 [2012] ). " ‘Generally, a doctor only owes a duty of care to his or her patient’ " ( Marshall v. Rosenberg, 196 A.D.3d at 818–819, 151 N.Y.S.3d 240, quoting McNulty v. City of New York, 100 N.Y.2d 227, 232, 762 N.Y.S.2d 12, 792 N.E.2d 162 [2003] ), and "that duty may be limited to those medical functions undertaken by the physician and relied upon by the patient" ( Romanelli v. Jones, 179 A.D.3d 851, 852, 117 N.Y.S.3d 90 [2020] ).
" ‘[A] physician-patient relationship is created when professional services are rendered and accepted for purposes of medical or surgical treatment’ " ( Marshall v. Rosenberg, 196 A.D.3d at 818, 151 N.Y.S.3d 240, quoting Thomas v. Hermoso, 110 A.D.3d 984, 985, 973 N.Y.S.2d 344 [2013] ). Where no direct patient-physician relationship exists, " ‘an implied physician-relationship can arise when a physician gives advice to a patient, even if the advice is communicated through another health care professional’ " ( Marshall v. Rosenberg, 196 A.D.3d at 818, 151 N.Y.S.3d 240 [brackets omitted], quoting Thomas v. Hermoso, 110 A.D.3d at 985, 973 N.Y.S.2d 344 ). Whether a medical professional owed a duty of care to the plaintiff "is [generally] a legal question for courts to determine" ( Marshall v. Rosenberg, 196 A.D.3d at 818, 151 N.Y.S.3d 240 ). However, " ‘[w]hether a physician's proffer of advice furnishes a sufficient basis upon which to conclude that an implied physician-patient relationship has arisen is ordinarily a question of fact for a jury’ " ( Marshall v. Rosenberg, 196 A.D.3d at 819, 151 N.Y.S.3d 240, quoting Thomas v. Hermoso, 110 A.D.3d at 985, 973 N.Y.S.2d 344 ). Moreover, a physician may be held vicariously liable for the negligent acts of "those they ‘exercise some general authority or control over’ " ( Ruggiero v. Miles, 125 A.D.3d 1216, 1217, 4 N.Y.S.3d 648 [2015], quoting Kavanaugh v. Nussbaum, 71 N.Y.2d 535, 546, 528 N.Y.S.2d 8, 523 N.E.2d 284 [1988] ).
In support of their motions for summary judgment, defendants submitted, among other things, transcripts of the parties’ depositions, plaintiff's medical records and affirmations from various medical professionals. During her deposition, plaintiff revealed that she had four prior preterm deliveries
before the subject pregnancy. Two of those babies were born at "about eight months," one was born at roughly "[7½] months" and one was "[a]lmost full term." Plaintiff testified that she saw Dolkart for "the last four of [her] pregnancies" – including during the subject pregnancy – and chose BNB to provide prenatal care because she "knew [she] was going to get the specialist," emphasizing that she "felt that [Dolkart] knew what he was doing with preterm labor."
As for her interactions with Dolkart, plaintiff testified that, in addition to performing ultrasounds during her pregnancies, he met with her "for consults with every pregnancy" for which she was referred to him.2 During these consults, plaintiff "[w]ent into his office" and they "went over [her] medical history with [her] prior pregnancies." She also recalled discussions with BNB personnel during which it was made clear that Dolkart "was the overseeing doctor and ... the person they go to if there is something that they need ... and they have to consult a doctor." To that end, the record demonstrates that, in addition to assisting with the birth of the infant and performing a level two ultrasound in January 2012, Dolkart also signed off on three prior ultrasound reports from BNB regarding the subject pregnancy in September 2011, October 2011 and November 2011.
Dolkart, in turn, testified during his deposition that, as a maternal fetal medicine specialist, he is involved in the treatment of high risk pregnancies and only provides care for patients of BNB when they are specifically referred to him in that regard. He maintained that, upon being referred a high risk pregnancy patient, BNB would continue to provide care to the patient and he would provide consultation to BNB. Dolkart testified that a referred individual would only become his patient if the problem for which the referral was made needed to be "exclusively cared for" by a specialist. He acknowledged that it "could be" appropriate for a patient with a history of preterm deliveries
to be referred to him – depending on the particular circumstances – because women with such histories are at a higher risk for subsequent preterm deliveries. Dolkart confirmed that he first had contact with plaintiff in 2005 during her second pregnancy after she was referred to him by BNB. He further acknowledged that every one of her children was a preterm child, making her more susceptible in 2012 to another preterm delivery. Indeed, the record contains a letter from Dolkart to a referring midwife in September 2009 – during a prior pregnancy – in which he noted that, because plaintiff's prior child was delivered at approximately 35 weeks gestation, plaintiff "has a small increased risk for preterm delivery again."
Although Dolkart maintained that he only met with plaintiff once during the subject pregnancy when he performed the ultrasound in January 2012, he noted that, when BNB refers a patient to him, it is his practice to examine the patient and discuss the clinical situation with her. Dolkart was adamant that it was not the standard of care in 2011 and 2012 to offer progesterone therapy
to a woman with plaintiff's history insofar as her prior deliveries involved births after 35 weeks gestation. In that regard, he revealed that "[a]round 2012 and perhaps towards the end of 2011," he provided instructions to BNB midwives about the use of progesterone
for patients who had previously delivered a baby before 35 weeks gestation, explaining that...
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