The following papers numbered 1 to 3 were marked fully submitted on the 31st day of July 2024:

In this medical malpractice action, the plaintiffs move (motion #002) for an Order, pursuant to CPLR §3212, granting summary judgment in their favor as against the defendant, Paul Heltzer, M.D. (hereinafter "Heltzer"), and setting a date certain for an inquest to determine the amount of their damages as to Heltzer, and for any other relief this court deems just and proper. The plaintiffs support the motion with attached exhibits, an attorney's affirmation, and the sworn deposition testimony of the defendant, Paul Heltzer, M.D., who is a physician duly licensed to practice medicine in New York.

Heltzer opposes the plaintiffs' summary judgment motion and has submitted an attorney's affirmation, attached exhibits and the expert affirmation of Gary Mucciolo, M.D., a board-certified obstetrician/gynecologist, duly licensed to practice medicine in New York.

Upon the foregoing papers, the plaintiffs' motion is denied. The court's decision is outlined below.

On December 10, 2020, at 7:15 p.m., the plaintiff-mother, Guzel Jach, presented to the SIUH Labor and Delivery Unit and was admitted at 38 weeks 6 days gestation. She was noted to have gestational diabetes which was controlled with diet and exercise. She was admitted for induction of labor with Pitocin. Upon admission, she was having Braxton-Hicks contractions and she reported good fetal movement. Earlier that day in the clinic, her cervix was noted to be closed and soft. According to the records, gestational diabetes was the only pregnancy complication. At 7:42 p.m. a sterile vaginal exam (SVE) revealed that her cervix was 0 cm. dilated, 0% effaced and the baby was at -3 station.

On December 11, 2020, at 7:58 a.m., the SVE results were 1/60/-2. At 9:06 a.m., Pitocin was started. At 11:10 a.m. an epidural was begun. At 1:37 p.m. Dr. Heltzer signed a progress note indicating that the SVE results were 1/60/-2. The plan was for pain management, continued external fetal monitoring and TOCO, to follow up pending labs, to monitor vital signs and to continue intravenous hydration. At 4:14 p.m. the results of an SVE were 1/60/-2. At 6:53 p.m. Dr. Heltzer saw the plaintiff-mother and performed a sterile vaginal exam. The results were 3/80/-2. At 6:57 p.m. the amniotic fluid was noted to be clear.

On December 12. 2020, at 12:46 a.m., a follow up SVE revealed 3/80/-2, There were early decelerations noted on the fetal monitoring strips at 1:59 a.m. and 2:09 a.m. Follow-up SVE results at 2:58 a.m. and 4:18 a.m. were 7/80/-1. At 5:42 a.m., fetal monitoring revealed late deceleration category 2 tracings. At 6:59 a.m. and 7:41 a.m., there were variable deceleration category 2 tracings. At 8:18 a.m. there were no recurrent decelerations. At 8:49 a.m. the SVE revealed 10/100/3. At 9:12 a.m., there were category 2 recurrent decelerations. At 9:36 a.m., there were early decelerations.

The records indicate that at 9:52 a.m., due to the progression of the labor, the plan was for vacuum extraction. At 10:00 a.m. the vacuum was placed, and a neonatologist was present at the bedside. According to the nurses' notes, at 10:09 a.m., vacuum extraction with one pop off was attempted. At 10:26 a.m., the nurses' notes indicate that a right medial-lateral (RML) episiotomy was performed. A 10:35 a.m. nurses' note indicates that the plan was changed to perform an emergency Cesarean section due to the unsuccessful vacuum extraction with pop offs. At 10:40 a.m., consent was obtained for a Cesarean section. The plaintiff-mother was transferred to the operating room and the delivery occurred at 11:08 a.m., on December 12, 2020.

According to Dr. Heltzer's delivery note, the labor and delivery complication was "abnormal second phase of labor." The plaintiff-mother became fully dilated and started pushing. She pushed for one hour with minimal movement of the vertex and the decision was made to perform a vacuum assisted delivery. An RML episiotomy was performed, and a vacuum was placed. Dr. Heltzer notes there were multiple attempts at vacuum extraction, 5-6 times with two pop-offs without delivery of vertex. In light of the failed vacuum, the decision was made to perform a Cesarean section and consent was obtained. There were no complications with the Cesarean section and a live female was born with APGAR scores of 3/7/9 and the birth weight was 3,310 grams.

The records indicate that the baby was diagnosed with diffuse subgaleal hemorrhage/swelling with a subdural hematoma. The baby was admitted to the NICU for further evaluation. While in the NICU, the baby was evaluated by the neurosurgery team and pediatric neurologists, among other specialties. On December 18, 2020, the baby was discharged with instructions to follow up with neurology as an outpatient.

Summary judgment is a drastic remedy that deprives litigants of their day in court, and it "should only be employed when there is no doubt as to the absence of triable issues." Andre v Pomeroy, 35 NY2d 361 (1974); Bonaventura v Galpin, 119 AD3d 625 (2d Dept 2014); Stukas v Streiter, 83 AD3d 18 (2d Dept 2011). The function of the court on a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility, but merely determine whether such issues exist. Guadalupe v New York City Tr. Auth., 91 AD3d 716 (2d Dept 2012); Kolivas v Kirchoff, 14 AD3d 493 (2d Dept 2005). Importantly, in determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party. Pearson v Dix McBride, LLC, 63 AD3d 895 (2d Dept 2009). The proponent of a summary judgment motion is required to tender sufficient evidence to demonstrate the absence of any material issues of fact, and the failure to do so requires denial of the motion regardless of the sufficiency of the opposing papers. Alvarez v Prospect Hosp., 68 NY2d 320 (1986). If an appropriate showing has been made, the burden shifts to the nonmoving party to submit evidentiary facts or materials to rebut the movant's prima facie showing.

"In a medical malpractice action, the plaintiff must show that the defendant 'deviated from acceptable medical practice, and that such deviation was a proximate cause of the plaintiff's injury'" Mazella v Beals, 27 NY3d 694 (2016) (citing James v Wormuth, 21 NY3d 540, 545, (2013)); see also Grullon v Thoracic Surgical, P.C., 208 AD3d 1163 (2d Dept 2022). A defendant's negligence qualifies as a proximate cause where it is "a substantial cause of the events which produced the injury" (citing Derdiarian v Felix Contr. Corp., 51 NY2d 308 (1980)). On summary judgment, a plaintiff is required to demonstrate that "his or her injuries proximately resulted from a defendant's departure from the required standard of performance." See, Gilmore v Mihail, 174 AD3d 686 (2d Dept 2019); Ohdan v City of New York, 268 AD2d 86 (1st Dept 2000). Generally, in medical malpractice matters, expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause. See, Gaspard v Aronoff, 153 AD3d 795 (2d Dept 2017) (citing, Semel v Guzman, 84 AD3d 1054, 924 NYS2d 414 [2011]).

The plaintiffs correctly contend that Heltzer is an expert, qualified to opine as to the standard of care and offer opinions as to when and how the provided care deviates from said standard. However, when offered, that opinion must be detailed, specific and factual in nature as "[g]eneral allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient..." See generally, Alvarez; Toomey v Adirondack Surgical Assoc., 280 AD2d 754 (2001).

However, contrary to plaintiffs' contention, Heltzer did not admit under oath that he deviated from the standard of care. Rather, when asked "how many pulls is the standard of care?" and "how many times can the vacuum be used to pull the infant's head?" he merely (and only) stated "I believe the standard of care is to have three pulls." When asked "If there are, let's say, five pulls would that be a deviation from good and accepted practice?" he stated "I testified the standard of care is three pulls. Logically, if you were doing more than three pulls, it would be not the standard of care." See NYSCEF Doc. No. 69 pgs. 50-52. When asked, "So attempts are pulls?" he stated, "Attempts are pulls with the clarification that a pop-off is not really an attempt because it doesn't stay on, or a misapplication is not really an attempt." See NYSCEF Doc. No. 69 p. 104. A review of said testimony fails to reveal that Heltzer admitted that he performed more than three pulls or that he departed from accepted standards. Moreover, plaintiffs' attorney [*2]did not ask in follow-up whether he performed more than three pulls and if so, whether he had an opinion, within a reasonable degree of medical certainty, that he deviated from accepted standards of care.

Instead, the plaintiffs' attorney makes an impermissible leap to finding a departure by incorporating statements made in Heltzer's post-delivery note (NYSCEF Doc. No. 71 p. 659) into his testimony about the standard of care. Heltzer's note in issue states, "multiple attempts at vacuum extraction attempted — 5-6 times with 2 pop-offs without delivery of the vertex." Heltzer was not questioned about this note, and it is not the court's role to infer a meaning consistent with the plaintiffs' contention, especially since Heltzer clarified that pop-offs and misapplications are not attempts.Numerous questions remain regarding the definition of these terms and their application in the clinical setting. As the plaintiff never asked Heltzer about his note, it would be pure speculation to interpret the content. This note coupled with the offered testimony (incidentally from a certified but unsigned transcript) is not proof of a departure as the plaintiffs contend. Inasmuch as there was no admission by Heltzer that he departed, no explanation of what occurred according to the note, and no understanding of the meaning of "attempts" and "pop-offs" and the clinical significance of the same, the plaintiffs have not demonstrated that, as a matter of law, Heltzer departed from accepted practice. The testimony and records offered by plaintiffs do not rise to the level required to make a showing of entitlement to summary judgment. Clearly there are issues of fact present for a jury to reconcile and the motion must be denied regardless of the sufficiency of the opposing papers. Alvarez.

Assuming, arguendo, that the plaintiffs did meet their burden and established that Heltzer was negligent, they have still failed to demonstrate the required causal connection between any alleged departure and the injuries sustained by the infant plaintiff.

To establish a case of medical malpractice, a plaintiff must prove that the departures from accepted standards of medical care and practice were a substantial factor in causing an injury or injuries. See Stukas v Streiter, 83 AD3d 18 (2d Dept 2011); see also Johnson v Staten Is. Med. Group, 82 AD3d 708. If the departures were not a substantial factor in causing the claimed injuries, the causes of action for medical malpractice must be dismissed. See, e.g., Senatore v Epstein, 128 AD3d 794 (2d Dept 2015).

Plaintiffs argue that "defendants' own medical records" reflect that the infant-plaintiff suffered a "subgaleal hematoma/infarct likely the result of birth trauma secondary to multiple failed vacuum attempts during vaginal delivery trial", thereby establishing causation and thus obviating the need for an expert affidavit stating an opinion on the issue of causation. The plaintiffs' purported showing falls far short of what is required to prove that, as a matter of law, negligent treatment provided by Heltzer was a substantial contributing factor in causing injury to the infant-plaintiff. Reference to a statement contained in a chart (NYSCEF Doc. No. 75 pg. 2), made by persons not shown to be qualified or knowledgeable to render such statement, stated without the benefit of explanation or references to reliable evidence and which is not made within a reasonable degree of medical certainty is of no probative value and does not support a finding of causation.

Assuming, arguendo, that the plaintiffs did meet their burden in showing entitlement to summary judgment, thereby shifting the burden to Heltzer, the court finds that Heltzer's opposition raised triable issues of fact as to whether there were departures and whether any departures were a proximate cause of the infant's injuries.

Heltzer has submitted, inter alia, the expert affirmation of Gary Mucciolo, M.D., a [*3]board-certified obstetrician/gynecologist, duly licensed to practice medicine in New York who, in detailed fashion with references to testimony and medical records, opines that Heltzer did not depart from accepted standards, that there is no causal link to the alleged injuries and that he obtained an appropriate informed consent. Heltzer has established clear questions of fact regarding the labor and delivery and the use of the vacuum extraction in this case.

Dr. Mucciolo opines that it was entirely proper for Heltzer to attempt to deliver the infant-plaintiff with vacuum assistance. He found no evidence that Heltzer performed more than three sets of pulls or had more than three pop offs during his use of the vacuum extractor. He found no evidence that the extractor was used for more than 30 minutes. Additionally, upon review of Heltzer's delivery note, Dr. Mucciolo opines that there is no evidence of a departure, explaining that references to "multiple attempts at vacuum extraction attempted - 5-6 times", even in the context of his testimony, is not evidence of a departure because a vacuum extractor can be used multiple times during a single contraction and it would still constitute one "pull" for the purposes of the standard of care.

Dr. Mucciolo opines that Heltzer's treatment was not the proximate cause of the infant-plaintiff's alleged damages. Based upon his review of the medical records and testimony, it is his opinion that the infant-plaintiff suffered a temporary insult to the brain that dissipated and returned to normal with no causal relationship to the treatment of Heltzer. Additionally, Dr. Mucciolo opines there is no evidence, in the records or testimony, that the infant-plaintiff is suffering from permanent brain damage.

Lack of informed consent is a distinct cause of action that requires proof of facts not contemplated by an action based merely on negligence allegations. See, Jolly v. Russell, 203 AD2d 527 (2d Dept 1994); see also, Figueroa-Burgos v. Bieniewicz, 135 AD3d 810 (2d Dept 2016). To establish a cause of action [to recover damages] for malpractice based on lack of informed consent, [a] plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury (Spano v Bertocci, 299 AD2d 335 [2002] [internal quotation marks omitted]; see Public Health Law § 2805-d [1]).

The court disagrees with the plaintiffs' argument that the parties' deposition and medical records "unequivocally" establish that Heltzer did not inform them of the risks of the vacuum assisted vaginal delivery and that the infant plaintiff's injuries were caused by the "multiple failed vacuum extraction attempts." Rather, the court finds that issues of fact exist regarding what information must have been disclosed that a reasonable medical practitioner would have disclosed in the same circumstances, whether a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and whether the lack of informed consent is a proximate cause of the injury. Moreover, the causal connection between the failure to inform and a patient's right to recover exists only when it can be shown objectively that a reasonably prudent person would have decided against the procedures performed. See Figueroa-Burgos. The plaintiffs have failed to establish any of the required elements necessary to prove a claim for lack of informed consent and, consequently, their [*4]motion must be denied.

The court has considered any remaining contentions of the parties and finds them to be unpersuasive.

Accordingly, it is hereby,

ORDERED, that the plaintiffs' motion is denied in its entirety; and it is further,

ORDERED, that any additional requests for relief are hereby denied.