The following papers numbered 1 to 3 were marked fully submitted 27th day of April,2011;Pages

Numbered

Notice of Motion with Exhibits

(dated October 27,2010).........................1

Affirmation in Opposition with Exhibits

(dated March3, 2011)............................2

Affirmation in Reply and in Support of Motion

(dated April 19,2011)...........................3_________________________________________________ _______________ D

Upon the foregoing papers, defendants' motion for summary judgment and dismissal of the complaint is granted, without opposition, as to defendants Linda Ivana Sodoma, M.D. and St. Vincent's Medical Center of Richmond, and is otherwise denied as to defendants Maria Vartolo Physician, P.C.

In this action sounding in medical malpractice, it is alleged on behalf of the infant plaintiff(hereinafter, plaintiff) that defendants failure to timely perform a cesarian section on the infant's mother and the administration of pitocin in light of her frequent hypertonic contractions during the labor process was the proximate cause of the child's spastic diplegia, a form of cerebral palsy.

It is undisputed that on April 3, 1998, at 5:00 P.M.,plaintiff's mother entered St. Vincent's Medical Center at 30 weeks gestation in premature labor. The plaintiff was born at 7:22 am on April 4, 2008 with a 30% abruption placenta (see Post Operative Report, Defendants' Exhibit R ). Therefore, according to the birth records submitted by defendants, the infant suffered an air leak in the lung on April 5th, and on April 7th an ultrasound of his head revealed a grade III intra -[*2]ventricular hemorrhage (IVH) involving the left ventricle (see Defendants' Exhibit S ).

In order to establish a prima facie case of medical malpractice, a plaintiff must submit evidence of a deviation or departure from accepted medical practices and proof that said departure was a substantial factor in causing plaintiff's injuries (see Thompson v Orner, 36 AD3d 791; Prete v Rafla-Demetrious, 224 AD2d 674, 675). Typically, expert testimony is necessary to demonstrate a defendant's purported deviation from the requisite standard of care (see Texter v Middletown Dialysis Ctr., Inc., 22 AD3d 831), while on the issue of proximate cause, a plaintiff is required to present "sufficient [medical] evidence from which a reasonable person might conclude that it was more probable than not that" the defendant's deviation was a substantial factor in causing plaintiff's injury (Johnson v Jamaica Hosp. Med. Ctr., 21 AD3d 881, 883[internal quotations omitted]; Holton v Sprain Brook Manor Nursing Home, 253 AD2d 852). "A plaintiff's evidence of proximate cause may be found legally sufficient even if his or her expert is unable to quantify the extent to which the defendant's act or omission decrease the plaintiff's chance of a better outcome or increased the injury, as long as evidence is presented from which the jury may infer that the defendant's conduct diminished the plaintiff's chance of a better outcome or increased [the] injury (Goldberg v. Horowitz,73 AD3d 691,694, quoting Alicia v. Ligouri, 54 AD3d 784,786)

On a motion for summary judgment, however, it is the defendant which bears the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. Once established, a plaintiff may avoid summary judgment by submitting a physician's affidavit attesting to defendant's departure from accepted practices and containing the attesting doctor's opinion that defendant's departure was a competent producing cause of plaintiff's injury (see Bacani v Rosenberg, 74 AD3d 500, 501-502). "General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment" (Rebozo v Wilen, 41 AD3d 457, 458).

In the instant motion, Dr. Marie Vartolo and her co-defendants have established a prima facie right to judgment as a matter of law through the submission of the expert affirmations of Dr. Andrew Steele, a Board Certified physician with a sub-certification in Neonatal-Perinatal medicine and Dr. Burton Rochelson, a physician, Board Certified in Obstetrics, Gynecology and Maternal Fetal Practice. To the extent relevant, Dr. Rochelson notes in support of defendant's motion that given the lack of any finding of a hypertonic uterus, any compromise of the fetal heart race tracing, [or] any drop of maternal pressure or maternal tachycardia, there is no evidence of an abruption contraction pattern". As a result , it is opined within a reasonable degree of medical certainty that the cesarian section performed on plaintiff's mother was done within an appropriate, proper and accepted time frame after Dr. Vartolo properly evaluated the clinical information available to her (see Defendants' Exhibit A ). In further support, Dr. Steeles concludes within a reasonable degree of medical certainty that there is no evidence and no scientific basis on which to claim that this baby's IVH was caused by anything other than his prematurity, and morbidities and complications thereof...[and] that there is no evidence that ...[an] earlier delivery by cesarian section would have prevented an IVH, or that any purported delay caused or contributed to the occurrence of the IVH, or even that a successful arrest of labor would have avoided the IVH.. In the opinion of this Court, the foregoing affirmations of defendants experts are sufficient to establish that Dr. Vartolo acted within accepted standards of medical care with regards to the management of the labor and delivery [*3]of plaintiff's mother.

In response to this prima facie showing, plaintiff has presented expert evidence of defendant's deviation from the requisite standard of care through the affirmations of Daniel Adler M.D., a physician Board Certified in Pediatrics, Psychiatry and Neurology, and Martin Gubernick, M.D. a physician Board Certified in Obstetrics and Gynecology. After reviewing the depositions, delivery and neonatal records of the infant plaintiff, along with the expert affirmations submitted by defendants in support of their motion, Dr. Gubernick opines with a reasonable degree of medical and obstetrical certainty that there were several departures in the applicable standard of care in this case by Dr. Vartolo that directly and proximately resulted in injuries to plaintiff, Frank Infantino, and deprived him of a substantial chance of a better outcome . Among those cited are (1) the failure to timely perform a cesarian section in light of ongoing abnormal fetal tracings and associated occult abruption" and (2) the contraindicated administration of the drug Pitocin in light of plaintiff's frequent hypertonic contractions and the risk in patients such as plaintiff's mother for placental abruption. According to Dr. Gubernick,, these departures increased the risk of injury to the premature infant, deprived him of a substantial chance of avoiding injury during birth and proximately caused the grade III intra- ventricular hemorrhage which resulted in his spastic diplegia. In addition, the doctor opined within a reasonable degree of medical certainty, that Dr. Vartolo's negligent actions deprived the infant of the substantial possibility of avoiding the IVH. Similarly, Dr. Adler concluded that ...had the infant avoided intrapartum stress inflicted by hypertonic contractions and placental abruption, the grade 3 hemorrhage would not have occurred, and his neurological disabilities would have been significantly mitigated if not completely prevented .

In reply, defendants assert that the infant plaintiff has failed to meet his burden of establishing the presence of a triable issue of fact, since plaintiff's expert affirmations failed to account for the fact that the infant plaintiff had normal Apgar and blood gas values at birth which it is alleged demonstrate that plaintiff did not suffer a hypoxic insult at birth . As a consequence, defendants maintain that the IVH in this case was caused by the fact of Frank's premature birth and not by any of the departures alleged against Dr. Vartolo . However, it must be noted that the accuracy of this observation itself presents an issue question of fact which precludes summary judgment.

In the case at bar, plaintiff's experts both agreed within a reasonable degree of medical certainty that the infant's spastic diplegia was proximately caused by the IVH, and that such an injury would not be seen in a pre-term infant unless he or she was subjected to stress such as hypoxia. While plaintiff's evidence may not permit the quantification of the extent to which Dr. Vartolo's act[s] or omission[s] decreased the plaintiff's chance of a better outcome or increased [the] injury, it is sufficient to defeat summary judgment that evidence presented from which [a] jury may infer that [such] occurred (Flaherty v Fromberg, 46 AD3d 743). In light of these conflicting factual allegations and opposing medical opinions, plaintiff has sufficiently satisfied his burden and raised numerous issues of fact warranting denial of the motion as to Dr. Vartolo (see Texter v Middleton Dialysis Ctr. Inc., 22 AD3d at 831-832; Weissman v Wider, 235 AD2d 474).

The motion for summary judgment relating to the other named defendants is unopposed.

Accordingly it is hereby

ORDERED, that the motion for summary judgment is granted as to defendants Linda Ivana Sodoma, M.D. and St. Vincent's Medical Center of Richmond; and it is further [*4]

ORDERED, that the complaint as to these defendants is severed and dismissed; and it is further

ORDERED, that the balance of the motion is denied; and it is further

ORDERED, that the Clerk enter judgment accordingly.

E N T E R,

/s/ Philip G. Minardo

J.S.C.

Dated: July 5, 2011

gl