Upon the foregoing papers, the motion (No. 3387) for summary judgment and dismissal of the complaint by defendant Robert J. Laudicino, M.D. and Robert J. Laudicino, M.D., P.C. (hereinafter "Dr. Laudicino")is denied, as is the like motion (No. 3418) by defendant Staten Island University Hospital (hereinafter "SIUH").

On March 25, 2002, plaintiff-mother, Bethania Ortiz, then ten weeks pregnant, made her first visit to Dr. Laudicino's office. Apparently, her pregnancy progressed unremarkably until September 8, 2002, when she presented to SIUH complaining of contractions. Dr. Laudicino was contacted, and the mother was hydrated and discharged. The following day, she was examined by Dr. Laudicino, who determined that the pregnancy was progressing normally. Sonograms were performed on September 10, October 1 and October 16, 2002 by co-defendant Dr. Peter S. Sanfilippo, who reported the fetus to be large. Biometry measurement had approximated the due date as October 18, 2002 (Plaintiffs' Exhibit "F").

The mother was again seen in the Emergency Room at SIUH on October 25, 2002, and in Dr. Laudicino's office three days later. On October 29, 2002, she signed a consent for a Caesarian Section (hereinafter "C-section"), and on October 30, 2002, the infant-plaintiff, Taesha Ortiz, was delivered at 42 weeks gestation. At delivery, the infant had an abnormal heart rate, and the fetal heart monitoring strips showed a "non-reassuring pattern" of fetal distress (see Plaintiffs' Exhibits "13" and "14"). The discharge notes indicate an Apgar score of "3" at one minute after birth, and on "8" four minutes later. The presence of thick meconium stained fluid [*2]was also noted (see Plaintiffs' Exhibit "16"). The infant remained in the Neonatal Intensive Care Unit at SIUH until her discharge on November 3, 2002.

In their bill of particulars, plaintiffs allege that as a result of defendants' negligence, the infant suffers from, among other injuries, "Hypotonic Cerebral Palsy, motor and verbal delays, severe scoliosis, torticollis and emphysema". All of these injuries are stated to be "permanent and progressive in nature, duration and effect" (see Plaintiffs' Bill of Particulars, SIUH Exhibit "C").

In moving for summary judgment and dismissal of the complaint, Dr. Laudicino states that all of the infant's medical issues are the result of an underlying progressive neuromuscular disease consistent with a condition known as mitochondrial myopathy, which is stated to be caused by the inheritance of a maternal mutation in the mitochondrial gene. Accordingly, the infant's condition is claimed to have nothing to do with the mother's prenatal or the infant's postnatal care. In addition, the doctor claims that the infant's school records (Laudicino Exhibit "2") show that (1) she has no cognitive disabilities, (2) there is no evidence of cerebral palsy and (3)there is no evidence of delayed verbal skills.

In support of these allegations, Dr. Laudicino has submitted the expert affirmations of Dr. Regina DeCarlo, a physician board certified in pediatric neurology (see Plaintiffs' Exhibit "M") and Dr. Jonathan Lanzkowsky, a physician board certified in obstetrics and gynecology (see Plaintiffs' Exhibit "N"). Dr. DeCarlo states that "within a reasonable degree of medical certainty the child has a progressive neuromuscular disease consistent with mitochondrial myopathy", and that "the claimed deviations [in medical treatment]... are not a proximate or contributory cause of the infant condition".

For his part, Dr. Lanzkowsky opines that the mother's prenatal care was appropriately managed; that there is no evidence of fetal hypoxia or placental insufficiency; and that there is no reason to believe that the child's present physical condition is attributable to anything other than mitochondrial myopathy. More particularly, upon his review of the pertinent medical records and deposition testimony, Dr. Lanzkowski concluded that the mother's pregnancy was essentially routine; that she was carefully monitored; that periodic sonograms were performed and that there was no indication of fetal abnormality. In his opinion, "the child sustained no neonatal sequella such as seizures or multi-system organ failure to suggest that there was asphyxia proximately related to the birth process".

In support of its separate motion for summary judgment, defendant SIUH states that it cannot be held vicariously liable for the alleged negligence of Dr. Laudicino, plaintiffs' private attending physician (see O'Regan v Lundie, 299 AD2d 531), and that it was he who managed her labor and delivery. It is undisputed that SIUH had no role in the prenatal care of the mother.

As evidence, SIUH has annexed the affirmation of Dr. Paul Beck, a physician board certified in obstetrics and gynecology (see SIUH Exhibit "N"). After reviewing the pertinent medical records and deposition testimony, Dr. Beck asserts that there is nothing about the care and treatment rendered by Dr. Laudicino during labor and delivery that would have required SIUH to intervene medically on behalf of either plaintiff. He further opines that there is no causal connection between the care and treatment rendered by Dr. Laudicino and the infant's present condition.

In opposition, plaintiffs have submitted the expert affirmation of Dr. Bruce L. Halbridge, another board certified obstetrician and gynecologist, who states that Dr. Laudicino failed to [*3]perform regular non-stress tests upon the mother, and further failed to act properly to deliver the infant as soon as possible once the non-reassuring fetal heart tracings showed evidence of placental insufficiency. According to Dr. Halbridge, these failures proximately caused an hypoxic, ischemic injury to the infant's brain, as well as her hypotonia, cognitive defects and other neurological injuries.

Plaintiffs have also annexed the affirmation of Dr. Rosario Trifiletti, a board certified pediatrician and pediatric neurologist, who claims that all of the tests administered by defendants in their effort attempt to establish that the infant's hypotonia and scoliosis are due to mitochondrial myopathy were inconclusive. According to Dr. Trifiletti, no positive diagnosis was ever made. Dr. Trifiletti also states that Dr. Laudicino and the pediatric resident at SIUH deviated from accepted medical practice by "failing to perform a lavage of the infant's lungs to ensure that no meconium was aspirated; and in failing to intubate the infant upon her delivery to prevent further hypoxia and acidosis from respiratory distress". Thus, Dr. Trifiletti opines "with a reasonable degree of medical certainty that Taesha Ortiz suffered perinatal hypoxia, . . . and that her current neurologic injuries are consistent with hypoxic injury".

The motions are denied.

It is axiomotic that summary judgment cannot be granted in a medical malpractice action where, as here, the parties have adduced conflicting opinions from medical experts whose credibility can only be resolved by a jury (see Feinberg v Feit, 23 AD3d 517, 519).

The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted medical practice, and evidence that such departure was a proximate cause of plaintiff's injury or damage (see Anderson v Lamaute, 306 AD2d 232, 233). At bar, defendants have made a prima facie showing of their entitlement to judgment as a matter of law by submitting the affirmations of doctors who opined that the cause of the infant's condition is mitochondrial myopathy, and that Dr. Laudicino did nothing either prenatally or during delivery to cause or contribute to her condition.

In opposition, plaintiffs have demonstrated the existence of triable issues of fact as to the sufficiency of the care afforded by Dr. Laudicino through the sworn statements of their own experts, each of whom opined that the infant's condition was caused by an hypoxic incident that resulted from Dr. Laudicino's negligent care and treatment.

Likewise, the affirmation of Dr. Halbridge is sufficient to raise an issue of fact with respect to the care afforded by the pediatric resident at SIUH, who allegedly "departed from the standards of good and accepted medical practice by failing to perform a lavage of the infant's lungs to ensure no meconium was aspirated, and in failing to intubate the infant upon ... delivery to prevent further hypoxia and acidosis from respiratory distress". Moreover, the Court rejects the claim that the above references to SIUH are too vague and conclusory to forestall summary judgment, and agrees with plaintiffs that their expert's reference to the alleged failure to properly lavage and intubate the infant do not materially alter plaintiffs' theory of liability (cf. Kassis v Teachers Insurance and Annuity Association, 258 AD2d 271). Here, in their response to the hospital's "Demand No. 3", plaintiffs stated that SIUH failed to take heed upon delivery of the presence of the thick meconium fluid; failed to properly resuscitate the infant; failed to timely and properly heed the significance of the thick meconium as well as the flat tracing on the fetal heart monitor; and failed to appreciate the significance of the late, variable deceleration of the fetal heartbeat. In the opinion of this Court, these allegations in plaintiffs' bill of particulars are [*4]factually sufficient to place the hospital on notice of the alleged departures cited by Dr. Halbridge in his affirmation in opposition to its motion for summary judgment (cf. Garrett v Community Gen Hosp of Greater Syracuse, 288 AD2d 928).

Accordingly, it is hereby

ORDERED that the motions for summary judgment are denied.

E N T E R,

s/ Philip G. MinardoJ.S.C.

Dated: April 16, 2007