Zongo v. Gerber
| Decision Date | 06 October 2020 |
| Docket Number | Index 61347/2017 |
| Citation | 2020 NY Slip Op 34838 (U) |
| Parties | ADJARATOU ZONGO, As Administratrix of the Estate Of FATIMATA ZONGO, Deceased, and ADJARATOU ZONGO Individually, Plaintiffs, v. DMITRY GERBER, JOHN ILARIO, ZAREEN KHAN, SHAHRAN RAZMZAN, WESTCHESTER MEDICAL GROUP, P.C., d/b/a WESTMED, SOUTHERN WESTCHESTER OB/GYN ASSOCIATES, LLP, and ST. JOHN'S RIVERSIDE HOSPITAL, Defendants. Seq Nos. 2, 3, 4, 5 |
| Court | New York Supreme Court |
Unpublished Opinion
DECISION & ORDER
New York State Courts Electronic Filing ("NYSCEF)) Documents Numbers 82-210, were read in connection with the respective motions for summary judgment of Dmitry Gerber, John Ilario and Southern Westchester OB/GYN Associates, LLP. ("OB/GYN)) (Seq #2); Zareen Khan (Seq #3); St. Johns Riverside Hospital (Seq #4); and an application by Westchester Medical Group, P.C., d/b/a Westmed, for the court to so order a Stipulation of Discontinuance (Seq #5); as well as the court having heard oral argument by counsel in connection with the instant motions, on May 21, 2020, all attending by Skype or other electronic virtual means, in accordance with the Court's Administrative Orders.
This action sounding in medical malpractice and wrongful death against defendants, concerns a 36 year old plaintiff-decedent, Ms. Zongo, who died on November 28, 2015 at St John's Riverside Hospital, eleven days after giving birth to her only child on November 17, 2015. After an autopsy was performed, Ms. Zongo's cause of death was determined to be disseminated pneumitosis due to postpartum bacterial infection.
Now, based upon the foregoing, the motions are decided as follows:
It is well-setlled that a proponent of a summary judgment motion must make a "prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]; see Orange County-Poughkeepsie Ltd. Partnership v Bonte, 37 A.D.3d 684, 686-687 [2d Dept 2007]; see also Rea v Gallagher, 31 A.D.3d 731 [2d Dept 2007]). Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the motion papers (Winegrad v New York University Medical Center, 64 N.Y.2d 851, 853' [1986]; see Jakabovics v Rosenberg, 49 A.D.3d 695 [2d Dept 2008]; see also Menzel v Plotkin, 202 A.D.2d 5.8, 558-559 [2d Dept 1994]). Once the movant has met this threshold burden, the opposing party must present the existence of triable issues of fact (see Zuckerman v New York, 49 N.Y.2d 557, 562 [1980]; see also Khan v Nelson, 68 A.D.3d 1062 [2d Dept 2009]). In deciding a motion for summary judgment, the court is "required to view the evidence presented in the light most favorable to the party opposing the motion and to draw every reasonable inference from the pleadings and the proof submitted by the parties in favor of the opponent to the motion" (Yelder v Walters, 64 A.D.3d 762, 767 [2d Dept 2009]; see Nicklas v Tedlen Realty Corp., 305 A.D.2d 385, 386 [2d Dept 2003]). The court's function in considering a summary judgment motion is not to resolve issues, but to determine if any material issues of fact exist (Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [1957]; Stukas v Streiter, 83 A.D.3d 18, 23 [2d Dept 2011]).
"To establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiffs injuries" (Stukas v Streiter, 83 A.D.3d 18, 23 [2d Dept 2011]). "A defendant physician seeking summary judgment must make a prima facie showing that there was no departure from good and accepted medical practice or that the plaintiff was not injured thereby" (Iulo v Staten Island University Hospital, 106 A.D.3d 696, 697 [2d Dept 2013]). To successfully oppose a motion for summary judgment dismissing a cause of action sounding in medical malpractice, a plaintiff must submit a physicians affidavit of merit attesting to (depending on the defendants prima facie showing) a departure from accepted practice and/or containing the attesting doctors opinion that the defendant's omissions or departures were a competent producing cause of the injury (Domaradzki v Glen Cove Ob/Gyn Associates, 242 A.D.2d 282 [2d Dept 1997]; see Arkin v Resnick, 68 A.D.3d 692, 694 [2d Dept 2009]). Conclusory or general allegations of medical malpractice, "unsupported by competent evidence tending to establish the essential elements are insufficient to defeat a motion for summary judgment"" (Mendez v City of New York, 295 A.D.2d 487 [2d Dept 2002]; see Alvarez v Prospect Hospital, supra, at 325).
In addition, the plaintiff is required to raise a triable issue of fact as to causation only in the event that the defendant makes an independent prima facie showing that any claimed departure was not a proximate cause of the plaintiffs injuries (Stukas v Streiter, 83 A.D.3d 18). To establish proximate cause in a medical malpractice action, "a plaintiff needs do no more than offer sufficient evidence from which a reasonable person might conclude that it was more probable than not that the injury was caused by the defendant" (Johnson v Jamaica Hospital" Medical Center, 21 A.D.3d 881, 883 [2d Dept 2005] citing Holton v Sprain Brook Manor Nursing Home Nursing Home, 253 A.D.2d 852 [2d Dept 1998]; see Clarke v Limone, 40 A.D.3d 571, 571-572 [2d Dept 2007]). Since the burden of proof does not ask the plaintiff to eliminate every possible cause of her injury, "the plaintiffs expert need not quantify the exact extent to which a particular act or omission _decreased a patient's chances [of a cure or increased her injury], as long as the jury can infer that it was probable that some diminution" in the plaintiffs chance of a better outcome (Jump v Facelle, 275 A.D.2d 345, 346 [2d Dept 2000]; see Flaherty v Fromberg, 46 A.D.3d 743, 745 [2d Dept 2007]; Calvin v New York Medical Group, P.C., 286 A.D.2d 469, 470 [2d Dept 2001]).
Here, OB/GYN and their doctors, including Drs. Gerber and Hario, provided car treatment to Ms. Zongo during her pregnancy. On November 17, 2015, at 4:25 PM as the delivering obstetrician, delivered Ms. Zongo's infant vaginally. It was an and delivery, and Ms. Zongo was discharged from St. Johns on November 19 201
Four days after her discharge from St. John's, Ms. Zongo presented to OB/GYN with complaints of difficulty breastfeeding, abdominal cramping, back pain, feeling tired and occasional chills for a few days prior to arriving to OB/GYN. Ms. Zongo was attended by Maria Andreyko, (a physician assistant), who noted that Ms. Zongo had bloody vaginal discharge with no odor and her uterus was enlarged, but did not indicate any finding of an infection. Following the exam, Ms. Zongo was referred to her primary care physician, and informed to follow up in a couple of weeks if necessary.
On November 28, 2015, at approximately 12:48 AM., Ms. Zongo presented to the Emergency Room at St. John's with a chief complaint of chest pain. The record reflects 12:57 AM., Ms. Zongo's blood pressure was elevated at 186/93. She had chest pain radiating her left upper extremity, and her pain was 8 out of 10. At 1:32 A.M., Ms Zongo in ventricular fibrillation, and she was pulseless, unresponsive and had seizure like activity. Resuscitative efforts were unsuccessful and terminated at 3:17 A.M. when Ms. Zongo was pronounced dead. The Autopsy Report determined that the cause of death was disseminated pneumitosis due to postpartum bacterial infection.
Turning to OB/GYN, and Drs. Gerber and llano's motion Seq 2 for summary judgment, they argue that they established prima facie entitlement to judgment as a matter of law, through the submission of competent medical testimony, and the Affidavits of Drs. Gerber and llario, establishing that these doctors and practice, did not deviate from good and accepted standards of care in the evaluation, diagnosis, and treatment of Ms. Zongo during prenatal care, labor and delivery, and post delivery.
The crux of plaintiff's complaint against OB/GYN, and Drs. Gerber and llario focuses on the November 23, 2015 office visit, wherein P.A. Andreyko allegedly failed to diagnose Ms. Zongo With an infection. Drs. Gerber and Dr. llario attest that Andreyko, a physician assistant, was an employee of OB/GYN, and had been for many years. On November 23, 205,, only five days before Ms. Zongo's death, Ms. Zongo was attended by Ms. Andreyko at the offices of OB/GYN. On that date, Andreyko noted, that Ms. Zongo's abdominal and pelvic examination were normal and there was no indication that there was any infection, or anything other than normal postpartum complaints. PA. Andreyko concluded that the patient, who was breast feeding, was suffering from problems associated with breast engorgement as well as complaints associated with a pre-existing lower back condition. She recommended that Ms. Zongo see her primary care physician and that she return to OB/GYN in one to two weeks if necessary. P.A. Andreyko's notes were signed the following day by Dr. Razmzan, who was the physician supervising her patient care for the November 23 visit.
These moving defendants offer no affidavits from independent experts but rely on affidavits from their own doctors Gerber and Hario. Through his affidavit, [1] Dr. Gerber opines that Ms. Zongo did not have an infection on November 23, 2015, when she was seen by P.A. Andreyko. It is his opinion within a reasonable degree of medical certainty within the field of / obstetrics and gynecology that every applicable standard of care was observed by him and Dr. Hario, and by Maria Andreyko and OB/GYN .
In...
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