Sheiffer v. Fox
| Decision Date | 27 March 2023 |
| Docket Number | Index No. 162180/2015,MOTION SEQ. No. 004 |
| Citation | 2023 NY Slip Op 30936 (U) |
| Parties | JAIME SHEIFFER, Plaintiff, v. NATHAN FOX, M.D., ADRIENNE BARASCH, M.D., SUSAN PESCI, M.D., SAMUEL BENDER, M.D., MICHAEL SILVERSTEIN, M.D., STEPHANIE MELKA, M.D., NEIL GRAFSTEIN, M.D., CIARA MARLEY, M.D., PAUL CHOI M.D., JERRY BLAIVAS, M.D., MATERNAL FETAL MEDICINE ASSOCIATES, PLLC, THE MOUNT SINAI HOSPITAL, NEW YORK UROLOGICAL ASSOCIATES, P.C., EAST RIVER MEDICAL IMAGING, P.C., and UROCENTER OF NEW YORK, Defendants. |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 004) 190, 191, 192, 193, 194, 195, 196, 197, 198 199,200,201,202,203,204,205,206,207,208,209,210,211,212,213,214 215, 216, 217, 218, 219, 222, 226, 227, 228, and 231 were read on this motion to/for JUDGMENT - SUMMARY.
In this action to recover damages for medical malpractice based on alleged departures from good and accepted practice, lack of informed consent, vicarious liability, and negligent hiring and retention of medical employees, the defendants Nathan Fox, M .D., Adrienne Barasch, M.D., Susan Pesci, M.D., Samuel Bender, M.D., Michael Silverstein, M.D., Stephanie Melka, M.D., Maternal Fetal Medicine Associates, PLLC (MFMA), and The Mount Sinai Hospital (collectively the obstetrical defendants) move pursuant to CPLR 3212 for summary judgment dismissing the complaint insofar as asserted against them. The plaintiff opposes the motion. The motion is granted to the extent that summary judgment is awarded to Barasch, Pesci, Bender, Silverstein, Melka, and The Mount Sinai Hospital (Mount Sinai) dismissing the complaint in its entirety insofar as asserted against them, and dismissing the lack of informed consent and negligent hiring and retention causes of action against Fox and MFMA. The motion is otherwise denied, as there are triable issues of fact as to whether Fox departed from good and accepted practice in performing a cesarean section procedure upon the plaintiff, whether that departure caused and contributed to her claimed injuries, and whether MFMA is vicariously liable therefor.
The crux of the plaintiff's medical malpractice claims against the obstetrical defendants is that, during a cesarean section procedure, Fox, an obstetrician/gynecologist employed by MFMA, while assisted by Mount Sinai intern Barasch and Mount Sinai resident Pesci, transected the plaintiff's bladder, causing bleeding, infection, incontinence, and pain, as well as the need to repair the transection. The plaintiff also averred that the repair of the transected bladder caused a fistula to develop that necessitated an additional surgery to repair it. She asserted that the other individually named obstetricians/gynecologists failed properly to recognize, diagnose, and treat the fistula in a timely fashion. In addition, the plaintiff alleged that MFMA, which employed these other physicians, as well as Mount Sinai, which employed Barasch and Pesci, were vicariously liable for their employees' malpractice.
In 2013, plaintiff, who was then 35 years old, began receiving prenatal care at the defendant MFMA. While treating at MFMA, the plaintiff was seen and examined by the defendants Fox, Bender, Silverstein, and Melka, all of whom were employed by MFMA and had admitting privileges at Mount Sinai. At her initial prenatal appointment, the plaintiff reported that she was experiencing her first pregnancy. Her past medical history was significant for an atrial septal defect repair due to a mitral valve prolapse in 1996 and a laparoscopic right cystectomy for an ovarian dermoid cyst in 2008. She also had a history of abnormal pap smears, although they had been normal since 2009. At the time of her first visit to MFMA, she was told that her estimated due date was April 7, 2014. MFMA formulated a plan for genetic counseling due to advanced maternal age, biophysical profiles weekly beginning at 36 weeks gestation, and a delivery at 41 weeks of gestation. The plaintiff's prenatal course was routine, until approximately March 13, 2014, when she was at 36 weeks and 3 days gestation, at which time she evinced increased blood pressure, edema, and weight gain. MFMA physicians directed the plaintiff to the Mount Sinai labor and delivery department to evaluate her for preeclampsia. The plaintiff was admitted overnight for prolonged monitoring.
According to the obstetrical defendants, her fetal well-being upon admission was reassured during that admission, after which she was diagnosed with gestational diabetes due to elevated blood pressure readings. The plaintiff was directed to collect her own urine samples over the next 24-hour period, and was discharged from the hospital on March 14, 2014, with instructions to complete the urine collection at home and return the full sample the next day. The urine test results revealed an elevated protein level of 243 mg in the 24-hour sample, as the obstetrical defendants contended that the normal range was 30 mg to 150 mg in a 24-hour urine sample.
On March 17, 2014, when the plaintiff was at 37 weeks and one day of her gestation period, obstetrician/gynecologist Silverstein saw her at MFMA, at which time she underwent a biophysical profile conducted by Fox, resulting in a score of 8/8. According to the obstetrical defendants, MFMA physicians discussed the signs and symptoms of labor and delivery with the plaintiff, and arranged for the induction of labor for later that week. At 7:35 pm on March 19, 2014, the plaintiff presented to the labor and delivery triage unit at Mount Sinai, at which time she was at 37 weeks and 3 days gestation, complaining of strong, regular contractions since 4:00 p.m. that afternoon. As of that time, the plaintiff was scheduled for induced labor for the following day. A cervical examination revealed that she was 4 cm dilated and 90% effaced, and that the fetus was at the -3 station. Fox was the attending physician on call at MFMA when the plaintiff was admitted, and he examined the plaintiff at 9:01 p.m. Notwithstanding the results of the 24-hour urine test conducted between March 13, 2014 to March 14, 2014, Fox documented that the plaintiff's 24-hour urine protein levels had been "normal" the week before and that her blood pressure readings had been in the normal range, although contemporaneous laboratory testing indicated an elevated protein level. The plaintiff denied that she was suffering from headaches, visual changes, shortness of breath, or chest pain. She was admitted for early labor and, notwithstanding the prior plan for induced labor, the plan formulated on March 19, 2014 was for an anticipated normal spontaneous vaginal delivery.
The plaintiff's labor proceeded normally until approximately 1:45 a.m. on March 20, 2014, when Mount Sinai medical staff observed severe, repetitive fetal heart decelerations. Physicians at Mount Sinai determined to bring the plaintiff to the operating room (OR) for what the obstetrical defendants characterized as an emergent cesarean section procedure, and the plaintiff thus was brought to the OR at 1:54 a.m. on March 20, 2014. When she arrived at the OR, the plaintiff executed a consent form in connection with the procedure and, according to Fox, it was his custom and practice to advise patients of the risks of the procedure, including bleeding, infection, and damage to adjacent organs.
Fox commenced the procedure at 2:01 a.m. on March 20, 2014, and completed it at 4:44 a.m., when the plaintiff's child was delivered. In his operative report, Fox wrote that the pre- and post-operative diagnosis was a non-reassuring fetal heart rate tracing and arrest of fetal descent. He documented that the plaintiff was in spontaneous labor and fully dilated when he noted recurrent fetal heart rate decelerations. As Fox described it, the vertex had not descended below the -2 station, and he thereupon decided to deliver the fetus by cesarean section. Barasch, who was then an intern employed by Mount Sinai, assisted Fox during the procedure. Fox documented that a Foley catheter that previously had been placed had been removed due to the plaintiff's discomfort just prior her commencement of pushing. He further noted that there was a small amount of blood, but no urine, draining from the catheter. According to the operative report, a Pfannenstiel incision-an abdominal incision that allowed him access to the plaintiff's abdomen-was made in the "usual fashion." A transverse incision was made in the lower uterine segment, employing a scalpel. The operative report indicated that the plaintiff's uterus was entered bluntly, and that the uterine incision was extended. The infant was delivered without difficulty, with Apgar scores of 7 and 8, and the placenta thereafter was delivered intact.
According to Fox's operative report, the plaintiff's uterus was cleared of all clots and debris. Upon his inspection of the uterine incision, Fox noted an additional "vertical defect" in the posterior wall of the plaintiff's bladder, and concluded that the defect was not contiguous with the prior ovarian cystectomy, and was several centimeters inferior to the site of that cystectomy. He noted no uterine incision extensions.
Fox thereupon requested a urology consultation, at which point fourth-year Mount Sinai resident Pesci arrived to relieve Barasch. According to the obstetrical defendants, the care and treatment that Barasch rendered to the plaintiff was at all times supervised by Fox, while Pesci's involvement was limited to assisting Fox with the cesarean section after the bladder laceration was identified, and...
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