Romanelli v. Jones

• Decision Date: 15 January 2020
• Docket Number: 2017–03507,Index No. 1074/13
• Citation: 117 N.Y.S.3d 90,179 A.D.3d 851
• Parties: Charles ROMANELLI, etc., Appellant, v. Sadie Moss JONES, etc., et al., Defendants, Keith B. Lescale, etc., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

179 A.D.3d 851

117 N.Y.S.3d 90

Charles ROMANELLI, etc., Appellant,

v. Sadie Moss JONES, etc., et al., Defendants,Keith B. Lescale, etc., et al., Respondents.

2017–03507

Index No. 1074/13

Supreme Court, Appellate Division, Second Department, New York.

Argued—June 11, 2019

January 15, 2020

John H. Fisher, P.C. (Powers & Santola, LLP, Albany, N.Y. [Michael J. Hutter ], of counsel), for appellant.

Feldman, Kleidman, Coffey, Sappe & Regenbaum LLP, Fishkill, N.Y. (Wayne M. Rubin of counsel), for respondents.

JOHN M. LEVENTHAL, J.P., JOSEPH J. MALTESE, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

ORDERED that the judgment is reversed, on the law, with costs, that branch of the motion of the defendants Keith B. Lescale and Hudson Valley Perinatal Consulting, PLLC, which was for summary judgment dismissing the complaint insofar as asserted against them is denied, the complaint is reinstated insofar as asserted against those defendants, and the order is modified accordingly.

On September 30, 2011, the plaintiff's decedent, Gia McGinley, died as a result of a uterine rupture and hemorrhage sustained during an attempted vaginal birth after caesarian section (hereinafter VBAC) at the decedent's home assisted by certified nurse midwife Sadie Moss Jones. Thereafter, the plaintiff, as the administrator of the decedent's estate and in his individual capacity, commenced this action against, among others, Keith B. Lescale and his medical practice, Hudson Valley Perinatal Consulting, PLLC (hereinafter together the defendants). Lescale, a board-certified obstetrician and gynecologist specializing in maternal-fetal medicine, provided blood testing and ultrasound studies to the decedent on four visits during the decedent's pregnancy, the last of which occurred two days before the decedent's death.

The plaintiff alleged in the bill of particulars, inter alia, that Lescale departed from the standard of care in failing to advise the decedent and Moss Jones against a home birth based upon the fact that the fetus was suspected to be macrosomic, or very large for its gestational age, the decedent's advanced age, the fact that the decedent was past her due date, and the fact that the decedent had previously given birth by caesarian section. The plaintiff further alleged that Lescale failed to inform the decedent that "a nurse midwife was not an appropriate care provider for her high risk pregnancy and labor and delivery," and failed to advise the decedent and Moss Jones that a prior cesarean delivery was "an absolute contraindication to planned home birth."

The Supreme Court granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them. The court determined that the defendants established that it was not within Lescale's limited scope of duty to, inter alia, advise the decedent of the risks attendant to VBAC home birth under the circumstances, and that, even if it were within the scope of his duty, Lescale established, as a matter of law, that the alleged failure to so advise or warn the decedent was not a proximate cause of the decedent's injury or death. We reverse.

"Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied upon by the patient" ( Leigh v. Kyle , 143 A.D.3d 779, 782, 39 N.Y.S.3d 45 [internal quotation marks omitted] ). The existence and scope of a physician's duty of care is a question of law to be determined by the court (see Kingsley v. Price , 163 A.D.3d 157, 161, 80 N.Y.S.3d 806 ; Koeppel v. Park , 228 A.D.2d 288, 289, 644 N.Y.S.2d 210 ).

Here, in support of their contention that it was not within Lescale's limited scope of duty to advise the decedent and Moss Jones against the planned VBAC home birth, the defendants relied upon Lescale's affidavit, in which he averred that, although he is board-certified in obstetrics and gynecology, he limited his practice solely to maternal-fetal medicine. In this regard, his practice is "entirely consultation based, consisting primarily [of] performing and interpreting ultrasounds." Lescale averred that his involvement with issues concerning delivery was "quite limited," and he did not "ever get involved in or make recommendations regarding the method of delivery."

Lescale averred that he would generally see a pregnant patient for three ultrasound scans, with the final scan performed at 32 to 34 weeks of gestation. However, on September 28, 2011, when the decedent's pregnancy was at over 41 weeks of gestation, Lescale performed a fourth biophysical profile ultrasound upon the referral of Moss Jones. At that visit, Lescale estimated the fetal weight as approximately 10 pounds, 9 ounces, which is over the 90th percentile for the gestational age. Lescale's medical records indicated that the fetus was "suspected" to be macrosomic. Since Moss Jones's referral indicated that the decedent did not want to be informed of the fetal weight, Lescale did not tell the decedent the fetal weight, but, instead, only told the plaintiff.

Lescale stated in his affidavit that he was aware "at this visit that [the decedent] still planned a trial of labor at home," and averred that the decedent did not ask him for his opinion regarding her plan and its risks. He stated that "home deliveries and VBACs were outside [his] area of expertise, and [he] was not familiar with their risks." Lescale opined that, within his limited duty, the standard of care did not require him to inform the decedent of the risks and complications associated with a VBAC home birth with a nurse midwife as he was "not the medical provider primarily handling" the decedent's pregnancy, and was not requested by the patient or her midwife to give his "input into the method and place of the delivery," including arrangements in the event of an emergency.

Even so, Lescale averred that, on the evening of September 28, 2011, he nonetheless advised Moss Jones to "proceed with caution, as a large baby may develop shoulder dystocia, a condition where delivery is impeded because the shoulder of the newborn [is] blocked by the mother's pubic bone, and because large babies tend to progress slowly, which may ultimately require delivery by caesarean section."

The defendants' medical record entries dated September 28, 2011, note "advanced maternal age," history of "preterm delivery 35 weeks twins," previous cesarean section, "large for dates," and "planning for VBAC." The medical records further indicate that the ultrasound findings were "discussed with patient."

In further support of their motion, the defendants submitted the transcript of Moss Jones's deposition testimony. Moss Jones testified that she began practicing home birth as a primary midwife in 2010. Although she had no experience with VBAC home births, she had been involved with VBACs in a hospital setting 20 to 30 times. As relevant to the issue of the defendants' scope of duty, Moss Jones testified that she considered Lescale to be a "collaborating physician" (see Education Law § 6951[1] ) for the decedent's pregnancy "in the sense that he did her ultrasounds and consulted regarding her situation." Moss Jones further testified that at 8:00 p.m. on September 28, 2011, Lescale called her to discuss the decedent's biophysical profile ultrasound, including Lescale's estimation of the fetal weight.

In opposition, the plaintiff submitted an expert affirmation from a board-certified obstetrician and gynecologist. The plaintiff's expert opined that Lescale's alleged departures from the standard of care occurred on September 28, 2011. Relying upon Moss Jones's testimony that she considered Lescale to be her "collaborating physician" (see Education Law § 6951[1] ), the plaintiff's expert explained that Lescale's duties included "consultation, collaborative management and referral to address the health status and risks of a nurse midwife's patients and that includes plans for emergency medical gynecological and/or obstetrical coverage." The plaintiff's expert stated that, as a board-certified obstetrician and gynecologist, Lescale "possessed the education, training and experience concerning the risks" of a VBAC at home, combined with the decedent's particular risk factors of suspected macrosomia, advanced maternal age, and a pregnancy that was past the expected due date. The plaintiff's expert further opined that, under the circumstances, Lescale should have informed the decedent that a VBAC at home was "associated with a substantially increased risk of neonatal and maternal death when compared with planned hospital birth." He opined that Lescale should have warned the decedent and Moss Jones that "the most serious complication of a [VBAC] is uterine rupture [,] and if that occurs at home, it will almost certainly result in the death of the mother and baby and it is contraindicated" by the American College of Obstetricians and...