The defendants, Marti Gilbert, D.O., Debra Siragusa, P.A., Laura Tyree, M.D. and Saint Vincent's Medical Center-Staten Island ("St. Vincent's"), move for summary judgment dismissing the plaintiff's complaint pursuant to CPLR § 3212. Their co-defendant Diana UY, M.D. cross moves for identical relief. The motions are granted to the extent that they seek summary judgment dismissing the complaint on behalf of Marti Gilbert, D.O.

During her examination before trial, Danielle Boone testified as follows:

Q.From the time you woke up at approximately 1:30 till the time your mother came home, were you still leaking fluid?

A.Yes, it was just clear. It wasn't a lot, like it was just leaking, like my water didn't fully break. My water didn't break till I got to the hospital.^[FN1]

In addition to the testimony of Danielle Boone, her mother, Brenda Boone testified to the following during her deposition:

Q.Did you see the discharge itself —

A.Yes. [*3]

Q.— or was this something that you overheard either Danielle or the nurse say?

A.No. I seen it.

Q.What did you see exactly?

A.Brown, slimy stuff.

Q.Can you describe if it was in a liquid form, if it was thick or anything else?

A.Slimy. I cleaned it, and I know it's slimy.^[FN4]

In addition during the deposition of the defendant, Laura Tyree, M.D., the following exchange took place:

Q.Following that initial examination when is the next time you were involved in the care and treatment of Danielle Boone? [*4]

A.At 11:15 I was made aware that there was thick meconium along with PA Siragusa.^[FN6]

Subsequently at 11:15 P.M. Dr. Tyree and Physician's Assistant Siragusa documented thick meconium in amniotic fluid and notified Dr. Uy, the attending physician. At that time an internal fetal monitor and an intrauterine pressure catheter were placed and amnioinfusion was started pursuant to instructions from Dr. Uy. By 12:46 A.M. on August 13, 1999 PA Siragusa noted that the fluid was clear.

During her testimony, PA. Siragusa ^[FN7] testified with respect to the phrase "diminished variability." During her deposition she testified as follows:

Q.Do you have an understanding through your education and training of the phrase "diminished variability"?

A.Yes.

Q.What is that?

A.Diminished beat variability is a rise of the heartbeat less than five beats.

Q.Is diminished variability indicative of any kind of fetal distress?

A.It can be indicative of fetal compromise if it's long term, long standing. It could also be indicative of the fetal resting stage.

Q.What would you consider long term?

A.Greater than 20 minutes long term, greater than 40 minutes is of definite concern of fetal compromise.^[FN8]

Additional testimony from PA Siragusa reveals that the Amani Royal entered into repeated periods of diminished beat variability and recovery during the course of labor and delivery.

During her examination before trial Danielle Boone testified as follows:

Q.Were you ever told the baby's heart rate dropped such that the baby was at risk for developing a problem?

A.Right before I had her, the lady told me that I had to deliver her because her heart rate just kept dropping.

Q.Who told you that? [*5]

A.The doctor.^[FN9]

The hospital's discharge summary notes the following: "[p]regnancy was complicated at labor with thick meconium after membranes ruptured spontaneously 18 hours prior to delivery." However, both Danielle Boone and her mother, Brenda Boone, each testified during their depositions that the membranes were ruptured at the hospital.

In support of their motions for summary judgment the defendants submit the affidavit of James Howard, M.D.. Dr. Howard is board certified in the fields of obstetrics and gynecology.

A motion for summary judgment must be denied if there are "facts sufficient to require a trial of any issue of fact (CPLR §3212[b]). Granting summary judgment is only appropriate where a thorough examination of the merits clearly demonstrates the absence of any triable issues of fact. "Moreover, the parties competing contentions must be viewed in a light most favorable to the party opposing the motion".^[FN10] Summary judgment should not be granted where there is any doubt as to the existence of a triable issue or where the existence of an issue is arguable.^[FN11] As is relevant, summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law.^[FN12] On a motion for summary judgment, the function of the court is issue finding, and not issue determination.^[FN13] In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion.^[FN14]

In this case the defendants support their motions for summary judgment with the affidavit of Dr. Howard. This court finds Dr. Howard's affidavit is seriously flawed in that it is wrought with conclusory statements and very little explanation. In his affidavit, Dr. Howard avers that " . . . the presence of thick meconium requires supervision but alone is not a reason to alter the care." However, the testimony of the witnesses during their examinations before trial indicate [*6]that in addition to the presence of "thick" meconium there were multiple periods when Amani Royal entered into periods of diminished beat variability and recovery during the course of labor and delivery.

During her examination before trial the defendant, Dr. Uy testified as follows:

Q.What is meconium?

A.Meconium is the, you know, expelled by the baby. The stool. And it mixes up with amnio fluid. And this happened when the baby is under stress.

Q.Are you familiar with any consequences to the child that may occur when meconium is present?

A.Meconium is actually not very significant. It's only fluid and we have to observe it with the fetal heart beat.

Q.Are you familiar with a condition called meconium aspiration syndrome?

A.Oh, yes.

Q.Could you tell us what that is?

A.That is a serious thing. Meconium aspiration may cause fetal distress, fetal anoxia, cerbral anoxia.^[FN15]

Furthermore, PA Siragusa testified during her examination before trial that:

Q.Based on your training and experience, does the presence of meconium on the underpad indicate anything to you?

A.Yes. Yes, meconium is an issue that needed to be — the attending needs to be immediately notified of it and it needs to be assessed as to the consistency; thin, moderate, thick, and then action needs to be taken accordingly on how to decrease the meconium. We need to evaluate the fetal heart rate and assess the fetal well-being.^[FN16]

Notwithstanding the testimony sampled above and that of other witnesses that indicated Amani Royal entered periods of diminished beat variability, Dr. Howard failed to indicate the type of supervision that periods of diminished beat variability with the presence of "thick" meconium requires. Rather, Dr. Howard states that ". . . an intrauterine catheter was timely placed at approximately 12:00 a.m. on August 13, 1999 and that amnioinfusion was initiated in a timely manner there after. Moreover, an internal fetal monitor was inserted at this time." However, Dr. Howard further states that such actions taken by the defendants were within the standard of care, but fails to state with specificity what the standard of care is in this situation.

In addition, Dr. Howard resolves the presence of repeated periods diminished beat variability and recovery by stating that ". . . the deceleration that occurred during that time period [*7]was not indicative of hypoxia because it did not exist for extended period of time and (once again) resolved when the plaintiff was turned on her left side."

Absent clear articulations of the standard of care in the affidavit of the defendants' expert, the prescribed treatments are the very issues of fact that must be resolved by a jury at the time of trial. This court finds that the affidavit of Dr. Howard fails to demonstrate prima facie entitlement to a judgment as a matter of law. As such, the burden does not shift to the plaintiff to offer evidence to establish a triable issue of fact.^[FN17]

On a motion for summary judgment, the function of the court is issue finding, and not issue determination.^[FN18] In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion.^[FN19] In this case the defendants' failed to meet their burden in demonstrating a prima facie entitlement to a judgment as a matter of law. While a sur-reply and sur-sur reply were submitted to this court for consideration, they were not considered in this decision.

Accordingly, it is hereby:

ORDERED, that defendants Debra Siragusa, P.A., Laura Tyree, M.D. and Saint Vincent's Medical Center-Staten Island's motion for summary judgment is denied its entirety; and it is further

ORDERED, that the complaint is dismissed against Marti Gilbert, D.O.; and it is further

ORDERED, that the defendant Diana Uy, M.D.'s cross motion for summary judgment is denied in its entirety; and it is further

ORDERED, that the parties return to DCM Part 3 for a pre-trial conference on Monday, June 29, 2009 at 9:30 A.M.

ENTER,

DATED: June 8, 2009

Joseph J. Maltese [*8]

Justice of the Supreme Court