The following e-filed documents, listed by NYSCEF document numbers (Motion 003) 178 through 194, 254 through 268, and 284; (Motion 004) 195 through 208, 245 through 253, 258 through 290; (Motion 005) 209 through 237, 269 through 283 and 291 through 292 were read on these motions for summary judgment.

In this alleged medical malpractice action, the plaintiffs move, pursuant to CPLR § 3212, for partial summary judgment against all defendants and, pursuant to CPLR § 3211(b), dismissing the defendants' affirmative defenses alleging plaintiff's contributory and/or comparative culpable conduct together with such other and further relief as this court deems just and proper. The defendants, Gary Spierer, M.D. (hereinafter "Spierer"), Jacqueline Guterman, M.D. (hereinafter "Guterman"), Ana Collins, M.D. (hereinafter "Collins"), Mia Mowzoon, M.D. (hereinafter "Mowzoon"), Staten Island University Hospital (hereinafter "SIUH") and Northwell Health, Inc. (hereinafter "Northwell") each move for summary judgment and dismissal of the complaint pursuant to CPLR § 3212, and for such other and further relief as this court deems just and proper.

The plaintiffs support their motion (004), inter alia, with the expert affirmation (name redacted) of a physician duly licensed to practice medicine in New York and who is board certified in obstetrics and gynecology and maternal-fetal medicine.

The defendant, Spierer, opposes plaintiffs' motion and has submitted, inter alia, the expert affirmation of Wendy Fried, M.D., a physician duly licensed to practice medicine in New York and who is board certified in obstetrics and gynecology.

The defendants, Guterman, Collins, Mowzoon, SIUH and Northwell, collectively oppose plaintiffs' motion and have submitted, inter alia, the expert affirmation of Gary Mucciolo, M.D., a physician duly licensed to practice medicine in New York and who is board certified in obstetrics and gynecology; the expert affirmation of Craig Sherman, M.D., a physician duly licensed to practice medicine in New York and who is board certified in radiology, nuclear medicine and neuroradiology; and the expert affirmation of Walter Molofsky, M.D., a physician duly licensed to practice medicine in New York and who is board certified in pediatrics and child neurology.

The defendant, Spierer, supports his motion (003), inter alia, with the expert affirmation of Wendy Fried, M.D., a physician duly licensed to practice medicine in New York and who is board certified in obstetrics and gynecology.

The defendants, Guterman, Collins, Mowzoon, SIUH and Northwell, support their collective motion (005), inter alia, with the expert affirmation of Gary Mucciolo, M.D., a physician duly licensed to practice medicine in New York and who is board certified in obstetrics and gynecology; and with the expert affirmation of Walter Molofsky, M.D., a physician duly licensed to practice medicine in New York and who is board certified in pediatrics and child neurology.

The plaintiffs oppose the defendants' motions and have submitted, inter alia, the expert affirmation of a physician (name redacted) duly licensed to practice medicine in in New York and who is board certified in obstetrics and gynecology and maternal-fetal medicine.

Upon the foregoing papers, the plaintiffs' motion is denied except that the court notes the [*2]defendants' affirmative defenses alleging plaintiff's contributory and/or comparative culpable conduct were withdrawn by defense counsel, on the record, during oral argument. As such, those defenses are dismissed.

The motion of the defendant, Spierer, is denied except as to those claims which are specifically outlined below.

The motions of the defendants, Guterman, SIUH and Northwell, are denied except as to those claims which are specifically outlined below. The motions of the defendants, Collins and Mowzoon, are granted in their entirety. The court's decision is outlined below.

This action arises from the plaintiff-mother's prenatal care and the labor and delivery of the infant-plaintiff by the defendants. The plaintiffs claim the defendants were negligent in the care provided and are seeking damages for birth injuries, including but not limited to, left brachial plexus birth injury with avulsion of C7 and C8 nerves, Erb's palsy due to birth trauma with C5, C6, C7 and C8 involvement, hypoxic injuries, including, global developmental delays, expressive language impairment and other neurodevelopmental impairments sustained by the infant-plaintiff as well as injuries sustained by the plaintiff-mother in connection with the birth of the infant.

On February 4, 2020, the plaintiff, Ndeye Traore (hereinafter "plaintiff"), presented for her first pre-natal office visit with Guterman. At that time, she was reportedly 25 weeks 5/7 days pregnant. Plaintiff reported good fetal movement. She weighed 139lbs and was 5'5" tall. On February 25, 2020, plaintiff was seen and evaluated by Spierer in the office. At that time, she was 27 weeks, 3/7 days pregnant with a fundal height at 28 weeks. The plaintiff weighed 149 lbs. Ms. Traore was instructed to return in two weeks.

Plaintiff returned on March 12, 2020, and was seen by Guterman, who noted that she was 29 weeks, 5/7 days pregnant with a fundal height of 30 weeks. The plaintiff weighed 155 lbs. and she denied complaints of bleeding, vaginal discharge, headache, vision problems and dizziness. On March 26, 2020, an ultrasound was performed which revealed an estimated fetal weight ("EFW") of 1994 grams.

Spierer saw the plaintiff on April 9, 2020, at which time she was 35 weeks, 5/7 days. The note states that "patient considering elective primary cesarean section due to fear of labor pain" and that pain relief during labor was discussed.

Guterman saw plaintiff on April 22, 2020. The gestational age was 35 weeks, 4/7 days with a consistent fundal height. Her blood pressure was 120/80 and she weighed 153 lbs. A comprehensive metabolic panel and bile acids were ordered along with third trimester labs.

The plaintiff testified that she discussed the option of a C-section delivery several times with both Guterman and Spierer during multiple visits because she was concerned to give birth vaginally. During each discussion, the plaintiff was advised that a C-section was not indicated (NYSCEF Doc. No. 226 pages 130-136, 146 and 218-219).

At her return visit on April 27, 2020, Spierer noted the plaintiff was 36 weeks, 2/7 days pregnant with a fundal height of 37 weeks, weighing 156 lbs. The cervical exam yielded a finding of fingertip-1 cm dilated, 70% effaced at -1 station.

Guterman saw the plaintiff on May 5, 2020, at 37 weeks, 3/7 days gestation. There were no signs or symptoms of pre-term labor, her blood pressure was 120/70 and she weighed 158 lbs. On exam, her cervix was 1 cm dilated and 70% effaced and she remained at -1 station.

Spierer saw the plaintiff on May 11, 2020, noting that she was 38 weeks 2/7 days [*3]pregnant and a consistent fundal height. The plaintiff denied any signs or symptoms of pre-term labor, she weighed 159 lbs., and she was 1 cm dilated, 70% effaced at -1 station.

Guterman saw the plaintiff on May 18, 2020, when she was 39 weeks, 2/7 days pregnant with still a consistent fundal height. Her blood pressure was 120/70 and she weighed 160 lbs. On exam, she was 3 cm dilated, 70% percent effaced and still at the -1 station. Guterman noted that if the patient did not deliver, she was to have a repeat biophysical profile with non-stress test later the following week.

The plaintiff saw Spierer on May 27, 2020. An ultrasound performed during the visit identified the due date as June 3, 2020, and produced an estimated fetal weight of 7lbs, 15 oz. The note states that Spierer "offered patient options of induction now with Pitocin vs expectant management - PT would like to wait for spontaneous labor and delivery." Spierer testified that he recommended the use of Pitocin to induce labor for the plaintiff and stated that it would have been his custom and practice to discuss the risks, benefits and alternatives of the use of Pitocin at that time. He further stated that it was not his practice to obtain written consent for the use of Pitocin (NYSCEF Doc. No. 189 pages 68-70).

The plaintiff testified that she contacted Spierer thereafter to discuss options to proceed with an induced delivery of the infant (NYSCEF Doc. No. 226 pages 143-144).

During the next and last office visit June 1, 2020, the plaintiff was again seen by Spierer. On exam, she was still 3cm dilated, 70% effaced and at -1 station and at 41 2/7 weeks gestation. She weighed 168 lbs. She agreed to be admitted for induction of labor. The note states "called labor and delivery — made personel (sic) aware." The plaintiff was to report to the hospital by 1:00 p.m. (NYSCEF Doc. No. 184 page 11). Spierer testified that he never tells a patient that he will deliver the baby, especially if he is not on call that day/evening, because the custom of the practice is for whomever is on call to attend the patient at the hospital. In addition, all the patients are told that either Guterman or Spierer might deliver them, depending on who was on call. (NYSCEF Doc. No. 189 pages 153-155).

Spierer testified that, since January 2018, both he and Guterman were employees of Northwell (NYSCEF Doc. No. 189 pages 23-25). Guterman testified that she was an employee of Northwell with privileges at SIUH at the time of plaintiff's admission on June 1, 2020 (NYSCEF Doc. No. 187 pages 24-28). Guterman testified that she received a phone call from the residents advising her the plaintiff had arrived at the hospital. She recalled going to the hospital in the evening of June 1st, to say hello to the plaintiff, let her know that she was there and that she'll be around for when it's time to deliver. After her arrival, she did not thereafter leave the hospital until the delivery was completed (NYSCEF Doc. No. 187 pages 112-114 and 116-117). Both Guterman and Spierer testified that Guterman was on call that day, June 1, 2020, to attend to their patients at the hospital. Spierer did not go to the hospital to deliver the baby as the labor and delivery was overseen by Dr. Guterman. (NYSCEF Doc. No. 190 pages 34-37).

The plaintiff presented to SIUH on June 1, 2020, at 2:32 p.m. for induction of labor as she was post-dates at 41 weeks, 2 days gestation. Collins, who was an OBGYN resident on duty, completed the OB admission assessment, noting that the plaintiff was 5'5" tall, with a pre-pregnancy weight of 160 lbs. and a current weight of 167.9 lbs. The patient's sonograms in the first trimester and a 20-week Level II sonogram were noted, along with the patient's positive GBS result. Per the OB H&P, the final expected delivery date was May 23, 2020, with a current gestational age of 41 weeks, 2 days (NYSCEF Doc. No. 192).

A consent form was executed by Collins, and plaintiff on June 1, 2020, which indicated [*4]that Collins had explained the risks, benefits and alternatives for a vaginal delivery with internal monitoring and possible episiotomy (NYSCEF Doc. No. 192). Collins testified that it was not the custom and practice of SIUH to obtain written consent for the use of Pitocin but stated that the SIUH records confirm that she discussed the risks, benefits and alternatives of induction of labor with the plaintiff (NYSCEF Doc. No. 230 pages 74-81).

On exam, the plaintiff was 3cm dilated, 70% effaced, and at the -1 station, with the fetus in a vertex presentation with intact membranes. Collins also referenced the sonogram performed at 31 weeks, 5 days which identified an EFW of 4 lbs., 6 ozs., with a repeat sonogram at 40 weeks, 4 days identifying an EFW of 7 lbs., 15 ozs. The plan was for admission to L&D with pain management, continuous electronic fetal monitoring (EFM) and toco monitoring, admission labs, IVF, and induction with Pitocin.

Collins authored an induction note at 3:19 p.m. on June 1, 2020, noting that the attending covering Pitocin was Dr. Barretto and reiterating the exam findings. Additionally, Collins documented an EFW of 3,350 grams (7 lbs., 3 oz.) measured via the use of the Leopold Maneuver (NYSCEF Doc. No. 230 page 120). Collins noted that the H&P was completed, and the contraction pattern and FHR were reviewed. Induction and augmentation were discussed with the attending, who agreed with the suggested management. Guterman cosigned Collins' note the morning of June 2, 2020 (NYSCEF Doc. No. 192).

At 6:33 p.m., Dr. Lylach Haizler-Cohen, an OBGYN resident, evaluated the plaintiff, noting she was seen at the bedside and resting comfortably without complaints. At 8:43 p.m., Lisa Valderrama, R.N., noted that the patient had an epidural placed by Dr. Zaky. At 9:15 p.m., Dr. Olivia Roy, an OBGYN resident, noted the patient denied any complaints and that there was artificial rupture of membranes at 7:25 p.m. The EFM identified an FHR of 120bpm, with moderate, positive accelerations, and a Category I tracing. She was contracting every 2-3 minutes. On exam, she was 4cm dilated, 80% effaced, and at the -1 station. The plan was to continue monitoring and Pitocin for induction with Dr. Guterman aware. (NYSCEF Doc. No. 192).

At 12:49 a.m. on June 2, 2020, Mowzoon, who was an OBGYN resident on duty, evaluated the patient, noting that she denied any complaints. On exam, she was 9cm dilated, 90% effaced, and at the +1 station, with a vertex occiput anterior presentation. The patient was contracting every 2 minutes, and the FHR remained stable at 120bpm with moderate variability and positive accelerations (NYSCEF Doc. No. 192).

Thereafter, at 3:00 a.m., Mowzoon noted that she was at the bedside pushing with the plaintiff. The vaginal exam revealed that the plaintiff was 10cm dilated, 100% effaced, and at the +2 station, with the occiput posterior and movement with each push. The plaintiff was described as pushing well, and Mowzoon was to continue to push with her (NYSCEF Doc. No. 192).

Guterman testified that, for a first-time vaginal delivery, neither the first stage nor the second stage of labor was excessively long. She also testified that was already in the delivery room when the baby's head was crowning and that, as documented in her delivery note, a shoulder dystocia was identified "almost immediately" and pediatricians were called. Dr. Guterman performed a McRoberts maneuver and indicated that the baby's shoulder was released in under a minute (NYSCEF Doc. No. 187 pages 182, 184, 188, and 210).

Conversely, the infant's father, Anthony O., testified that after the head came out completely, the shoulder was stuck and Guterman was pulling the baby's head and yanking it from side to side. He described the delivery of the infant as being violent such that he did not [*5]believe an adult human could survive such an event (NYSCEF Doc. No. 227 page 52).

The OB Delivery Summary, authored by Dr. Guterman at 4:54 a.m., notes that the plaintiff had artificial rupture of membranes at 7:45 p.m. on June 1, 2020, with her membranes ruptured for 8 hours and 35 minutes prior to delivery. The L&D complications/problems included shoulder dystocia, with the head delivered in right occiput transverse with left arm anterior. The baby was delivered utilizing McRoberts and suprapubic pressure with the time from head to shoulder delivery less than one minute. The gestational age at birth was 41 weeks, 3 days with the baby weighing 4,550 grams (10 lbs.). The baby was stimulated, and mouth/nose bulb suctioned with the cord clamped and cut and handed off to the awaiting nurse. Apgar scores of 7 and 8 were noted. It was documented that the baby had minimal movement of the left arm. No other notable findings were noted (NYSCEF Doc. No. 192).

Dr. Guterman testified that the residents who assisted with this labor and delivery acted at her direction, kept her informed of developments as they occurred and acted under her supervision. She further testified that she ensures that her patients receive proper care during their labor delivery hospital admissions by tracking them during her shifts. (NYSCEF Doc. No. 187 pages 29, 149-150 and 213-214).

Per the OB RN delivery summary co-signed by Colleen Duffey, R.N. and Nurse Valderrama, the plaintiff had AROM on June 1, 2020, at 7:45 p.m., yielding clear amniotic fluid. Guterman was the attending at delivery with the first assist of Dr. Olivia Roy, and a second assist with Dr. Chakravarthy. A Neonatologist/Pediatrician was noted to be in attendance with Nurse Valderrama as the circulator and Nurse Scaramuzzo as the second circulator in attendance. Shoulder dystocia was noted. The infant was delivered via spontaneous vaginal delivery and weighed 4,550 grams (10 lbs.); cord blood was sent for typing. The placenta was discarded in the usual manner. Bulb suction was performed; Apgar scores were 7 and 8, at 1 and 5 minutes, respectively. Additional notable findings at birth included decreased movement of the left arm, with Pediatrics present at delivery and examined. The extremity was pink with a good pulse noted. Skin-to-skin contact was initiated for at least one hour after delivery, and the infant was transported in a warmer to the well-baby nursery (NYSCEF Doc. No. 192).

Following the delivery, the plaintiff was examined and noted to be free from lacerations in her cervix, vagina and perineum (NYSCEF Doc. No. 192). At her deposition, the plaintiff testified that the only injuries she sustained from the labor and delivery were pelvic pain, and hip pain for which she had been prescribed physical therapy (NYSCEF Doc. No. 226 pages 228-232).

The infant was admitted to SIUH's well baby nursery immediately after his birth on June XX, 2020. The initial newborn exam was performed by Amanda Suarez, PA and confirmed by Dr. Jonathan Goldenthal and revealed a "well newborn w/brachial plexus palsy" of the left upper extremity. The physical exam revealed a normal appearing baby, but minimal movement of the left arm. An x-ray of the left clavicle and LUE on June 2, 2020, showed no acute fracture or dislocation. An order for blood gas analysis was entered at the time of the infant's birth but was later cancelled when the infant was discharged. The neonatal admission was otherwise unremarkable, and the infant was discharged on June 3, 2020, with a directive to seek follow-up care within 1-3 days (NYSCEF Doc. No. 220).

Spierer testified that he performed a circumcision upon the infant on June 17, 2020. He described said procedure during his deposition (NYSCEF Doc. No. 190 pages 144-148). Both parents testified that the infant has no urological problems and that he has never been seen by a [*6]urologist. The plaintiff testified that her son's penis was "healed", and the father testified that it was "normal" (NYSCEF Doc. No. 226 pages 227-228, NYSCEF Doc. No. 227 pages 62-63).

On July 21, 2020, the plaintiff presented for a 6-week post-partum visit and was seen by Guterman for post-partum follow-up. According to the note, on June XX, 2020, the plaintiff had a spontaneous vaginal delivery with shoulder dystocia. The note reflects that the baby is affected by "what seems to be an Erb's palsy." He was moving his fingers and hand and follow-up with neurology was scheduled for September 2020. The delivery history included a baby boy weighing 4550 grams (10 lbs.) delivered by vaginal delivery on June XX, 2020. The plaintiff was reportedly doing well, and bottle and breast feeding, with lochia still ongoing. Contraceptive options were discussed, and she denied signs or symptoms of post-partum depression. On exam, a small amount of bleeding was identified, and the uterus was described as small, anteverted, mobile and non-tender. The patient was cleared to resume all normal activity and was to return for IUD insertion. (NYSCEF Doc. No. 218).

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).

A physician moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, either that there was no departure from accepted standards of medical care or that any departure was not a proximate cause of plaintiff's injuries. Mackauer v Parikh, 148 AD3d 873 (2d Dept 2017); Stukas v Streiter, 83 AD3d 18 (2d Dept 2011). To sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars. Mackauer v Parikh, 148 AD3d 873 (2d Dept 2017); Schwartzberg v Huntington Hospital, 163 AD3d 736 (2d Dept 2018). Once the showing has been made, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the defendant's prima facie showing, but only as to those elements on which the defendant met the prima facie burden (see Mackauer; Schwartzberg).

In opposition to a summary judgment motion, the plaintiff's expert must address the contentions of the defense expert to establish an issue of fact. Failure to do so warrants dismissal of the action. Senatore v Epstein, 128 AD3d 794 (2d Dept 2015). "General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat defendant physician's summary judgment." Alvarez; see also Kramer v Rosenthal, 224 AD2d 392 (2d Dept 1996). Moreover, "where the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation . . . the opinion should be given no probative force and is insufficient to [*7]withstand summary judgment." Diaz v New York Downtown Hosp., 99 NY2d 542 (2002).

It is well-settled that expert testimony must be based on facts in the record personally known by the witnesses, and that an expert cannot reach a conclusion by assuming "material facts not supported by evidence." Cassano v Hagstrom, 5 NY2d 643 (1959). Expert opinions that are conclusory or unsupported by the record are insufficient to raise triable issues of fact. Aliosha v Ostad, 153 AD3d 591 (2d Dept 2017) (affirming the lower court's decision granting defendant's motion for summary judgment because plaintiff's unnamed expert was conclusory and speculative, and failed to address specific assertions made by the defendant's expert, especially those pertaining to proximate causation).

Furthermore, an expert affirmation in opposition to a motion for summary judgment must set forth the medically accepted standards of care or protocol and explain how it was departed from. Geffner v North Shore University Hosp., 57 AD3d 839 (2d Dept 2008). Such an affirmation must address all the key facts relied on by the defendant's expert. Geffner; see also Rebozo v Wilen, 41 AD3d 457 (2d Dept 2007). In opposition, a plaintiff must "submit material or evidentiary facts to rebut the defendant's prima facie showing that he or she was not negligent in treating the plaintiff." Langan v St. Vincent's Hosp. of NY, 64 AD3d 632 (2d Dept 2015).

The plaintiffs move for partial summary judgment against all defendants alleging that they departed from accepted standards of medical practice by failing to honor the plaintiff-mother's request for cesarean delivery; by grossly underestimating the fetal weight on 5/27/2020 and 6/1/2020; by failing to properly rely on/perform ultrasounds and Leopold maneuvers; by failing to measure fundal height on 5/27/2020 and 6/1/2020; by failing to obtain the plaintiff-mother's informed consent for induction of labor; by abandoning the plaintiff-mother at the hospital; and by applying excessive lateral traction to the fetal head and neck during the delivery of the infant. Additionally, the plaintiffs allege that these departures caused or substantially contributed to the plaintiffs' injuries. Plaintiffs have supported their claims with a detailed expert affirmation of a physician (name redacted) duly licensed to practice medicine in in New York and who is board certified in obstetrics and gynecology and maternal-fetal medicine. The expert supports the opinion with specific references to the record including, deposition testimony and medical records (NYSCEF Doc. No. 206).

Through their submissions, the plaintiffs have satisfied their burden of establishing prima facie entitlement to partial summary judgment regarding the claims which are the subject of the motion, except for claims of abandonment and lack of informed consent. As such, the burden thereafter shifted to the defendants to produce evidentiary proof in admissible form sufficient to establish issues of fact, which would require a trial of the action.

The expert's opinions regarding the abandonment claims are speculative and conclusory and are, consequently, insufficient to support summary judgment. Furthermore, regarding the informed consent claim, the plaintiffs' expert failed to state that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed (see Public Health Law § 2805-d [1]). The expert's opinion merely references what the plaintiff would have done and is, consequently, insufficient to support summary judgment. Accordingly, the defendants need not refute these claims. It is well established that when a party moving for summary judgment has not met its initial burden of setting forth evidentiary facts sufficient to establish entitlement to judgment as a matter of law, the motion should be denied without considering the sufficiency of the opposing papers. See Winegrad v New York Univ. Med. Ctr., [*8]64 NY2d 851 (1985); Fotiou v Goodman, 74 AD3d 1140 (2d Dept 2010).

In opposition, as noted above, the defendants submit the expert affirmations of Wendy Fried, M.D. (NYSCEF Doc. No. 246), Gary Mucciolo, M.D. (NYSCEF Doc. No. 249), Craig Sherman, M.D. and Walter Molofsky, M.D. The detailed opinions of these experts are supported with specific references to the record, including deposition testimony and medical records.

The defendants have successfully refuted the plaintiffs' showing by demonstrating the existence of material issues of fact, which preclude summary judgment, relating to the significance of measuring fundal height; whether a c-section should have been offered and/or performed; whether the fetal weight was estimated appropriately via ultrasounds and Leopold maneuvers; and whether excessive lateral traction was applied to the fetal head and neck during the delivery of the infant. Accordingly, the plaintiffs' motion is denied in its entirety.

The plaintiffs claim that Spierer departed from accepted medical practice: in failing to ensure with respect to the May 27, 2020 sonogram study, that the abdominal circumference was properly measured, that the measurement calipers were placed in correct positions and that the entire circumference of the abdominal wall was observed prior to measurement; in failing to recognize that the May 27, 2020 sonogram study was improperly performed and in reading, interpreting, signing-off on and/or relying on said sonogram study, notwithstanding that the study was technically deficient, did not meet standards, had poor picture quality, did not properly measure the fetal abdominal circumference nor depict the full circumference of the abdominal wall nor clearly depict the fetal abdomen; in failing to request for a repeat sonogram study in light of the technical deficiencies of the May 27, 2020; in failing to ensure that plaintiff-mother received appropriate labor and delivery care during her stay at SIUH on June I and June 2, 2020; in abandoning plaintiff-mother at SIUH on June 1 and June 2, 2020, without making a proper or adequate arrangement for her to be treated or cared for by a qualified obstetrician; in failing to properly and adequately supervise, monitor and oversee his subordinates and/or office staff; in improperly causing the plaintiff-mother to be left in the care of unskilled, unqualified or inexperienced interns or residents; physicians; in failing to timely perform appropriate tests; in failing to properly read sonograms; in failing to properly perform sonograms on plaintiff-mother; in grossly underestimating the fetal weight; in improperly reading the results of sonograms thereby grossly underestimating the weight of the fetus; in improperly reading the results of sonograms and improperly diagnosing the size of the fetus prior to birth; in failing to properly perform clinical estimation of the fetal weight prior to plaintiff-mother's admission for the birth of the infant, thereby grossly underestimating the fetal weight and causing the physicians who attended to the plaintiff-mother at SIUH to be misled with respect to the estimated size and weight of the fetus; in failing to measure fundal height; in ignoring and failing to heed plaintiff-mother's repeated requests to be delivered by cesarean section; in failing to offer plaintiff-mother cesarean section as an alternative to vaginal delivery; in failing to deliver the infant-plaintiff by caesarean section in light of his large size at birth and repeated requests by the plaintiff-mother to be allowed to give birth by cesarean section; in failing to explain the risks and benefits of a cesarean section versus vaginal delivery; in failing to heed objective signs, symptoms and complaints exhibited by both the infant-plaintiff in utero and his mother; in failing to diagnose fetal macrosomia; in failing to appreciate the risk of macrosomia; in allowing the pregnancy to go late term or postdate; in failing to induce labor and/or deliver the infant-plaintiff by caesarean [*9]section prior to the date he was born; in failing to properly obtain informed consent; in failing to obtain informed consent and/or make full and reasonable disclosure to plaintiff-mother of the nature and extent of her pregnancy, including, pelvic measurements, gestational age, late term, postdate pregnancy, macrosomia, shoulder dystocia complication and the risks associated therewith; in failing to make full or reasonable disclosure of all of the risks and benefits of the treatment rendered that a reasonable physician under similar circumstances would have disclosed; in failing to disclose any alternatives and the risks and benefits relating to any such alternatives; in failing to properly treat and/or manage plaintiff-mother's injuries; and in improperly causing plaintiff-mother to undergo a traumatic vaginal delivery of a macrosomic baby, thereby causing her to suffer excessive postpartum hemorrhage; postpartum pubic symphysis diastasis and other injuries; in performing botched circumcision on the infant; in failing to properly use surgical tools in the circumcision procedure; in removing too little or insufficient foreskin during the circumcision procedure, thereby causing the plaintiff infant to sustain foreskin adhesion.

Plaintiffs claim the infant-plaintiff sustained severe permanent birth injuries, including permanent left brachial plexus birth injury with traumatic avulsion of C7 and C8 nerves, Erb's palsy due to birth trauma with CS, C6, C7 involvement, global developmental delays, and expressive language impairment and that the plaintiff-mother suffered pubic symphysis diastasis, recto-vaginal fistula, severe and recurring pain, and suffering as a result of Spierer's negligence.

Spierer contends that he did not depart from accepted standards of obstetrical care with respect to the treatment rendered to the plaintiffs and any alleged injuries were not proximately caused by any alleged deviations from the standard of care.

Spierer's contentions are supported by the expert affirmation of Wendy Fried, M.D. who supports her opinions with specific references to the record including, deposition testimony and medical records.

In opposition, plaintiffs have supported their contentions with an expert affirmation of a physician (name redacted) duly licensed to practice medicine in in New York and who is board certified in obstetrics and gynecology and maternal-fetal medicine. The expert supports the opinion with specific references to the record including, deposition testimony and medical records.

Through his submissions, Spierer has satisfied his burden of establishing prima facie entitlement to summary judgment. As such, the burden thereafter shifted to the plaintiffs to produce evidentiary proof in admissible form sufficient to establish issues of fact, which would require a trial of the action.

Except as noted herein, the plaintiffs, by their submissions, have successfully refuted the defendant's showing of prima facie entitlement to summary judgment by demonstrating the existence of material issues of fact, which preclude summary judgment, relating to, inter alia, the significance of measuring fundal height; whether a c-section should have been offered and/or performed; whether the fetal weight was estimated appropriately via ultrasound and Leopold maneuvers; and whether excessive lateral traction was applied to the fetal head and neck during the delivery of the infant.

Spierer argues that he cannot be held liable for the claimed brachial plexus injury because he was not present at the hospital during the labor and delivery and was not involved in the actual delivery of the infant. However, the plaintiffs' claims against Spierer go beyond this argument and in opposition they have demonstrated that material issues of fact exist which [*10]preclude summary judgment. For example, issues of fact exist regarding whether, during the prenatal office visits with him, Spierer should have offered c-section delivery as an alternative and/or ordered that a c-section be performed.

Accordingly, Spierer's motion is denied except as noted otherwise herein.

The plaintiffs claim that Guterman departed from accepted medical practice: in failing to ensure that plaintiff-mother received appropriate labor and delivery care during her stay at SIUH on June 1 and June 2, 2020; in abandoning plaintiff-mother at SIUH on June 1 and June 2, 2020, without making a proper or adequate arrangement for her to be treated or cared for by a qualified obstetrician; in failing to render any care or treatment to the plaintiff-mother at SIUH on June 1, 2020, or make proper arrangement to transfer her care to a qualified, competent or experienced obstetrician; in abandoning plaintiff-mother during the active and second stages of labor and leaving plaintiff-mother to be cared for by defendant Mowzoon and others, who were inexperienced and unsupervised first or second year residents or interns; in violating and failing to comply with SIUH Management of Labor Policy (Manual Code: PCH P 1.0) and 10 NYCRR § 405.4 (f)(3)(iii); in failing to have plaintiff-mother attended by a competent, experienced or qualified obstetrician; in failing to properly and adequately supervise, monitor and oversee her subordinates and/or office staff; in failing to properly read sonograms; in failing to perform sonograms on the plaintiff-mother; in grossly underestimating the fetal weight; in improperly reading the results of sonograms and improperly diagnosing the estimated size of the fetus prior to birth; in failing to properly perform clinical estimation of the fetal weight on the date plaintiff-mother was admitted to SIUH for the birth of the infant; in improperly directing and/or allowing defendant, Collins, to obtain the estimated weight of the fetus by Leopold maneuver; in failing to properly perform a sonogram on the plaintiff-mother during her admission to SIUH for the birth of plaintiff infant; in ignoring and failing to heed plaintiff-mother's repeated requests to be delivered by cesarean section; in failing to properly monitor the progress of labor; in failing to properly review and inspect fetal heart monitoring strips during active period of labor; in failing to recognize that the fetus was in distress; in failing to timely and properly recognize, diagnose and/or manage shoulder dystocia; in failing to diagnose fetal macrosomia; in failing to appreciate the risk of fetal macrosomia; in failing to inform plaintiff-mother of shoulder dystocia complication; in failing to implement shoulder dystocia precautions during delivery even though it was clear the fetus was macrosomic; in failing to implement shoulder dystocia precautions during the second stage of labor even though there were multiple signs of shoulder dystocia; in improperly allowing plaintiff-mother to be repeatedly coached and exhorted to push and keep pushing for over a period of one hour during which the infant's head came out of the vulva multiple times but retracted into the vaginal canal each time ("turtle" sign) which was a clear indication of shoulder dystocia; in failing to have a qualified or experienced obstetrician, pediatrician and/or neonatologist in the delivery room upon learning of the "turtle" sign; in failing to be present at the delivery room until after over a period of one hour during which the infant's head came out multiple times but retracted into the vaginal canal each time; in failing to make adequate, timely, and proper consultations with attending obstetricians and/or residents; in failing to make adequate, timely, and proper consultations with attending neonatologist; in causing plaintiff-mother to undergo severely painful, difficult and prolonged second stage labor; in failing to offer plaintiff-mother cesarean section as an alternative to vaginal delivery; in failing to deliver the infant-plaintiff by caesarean section in light of the difficult second stage [*11]labor the plaintiff-mother underwent; in failing to perform emergency caesarean-section upon recognition of shoulder dystocia; in failing to explain the risks and benefits of a cesarean section versus vaginal delivery; in being absent from the labor and delivery room during the second stage of labor and failing to enter into said room or render any care to the plaintiff-mother until approximately 10 minutes prior to the time she delivered the infant; in attempting to deliver the infant's shoulder and body by repeatedly tugging, pulling or jerking the infant's head thereby applying excessive traction to his left eye, neck and left shoulder; in applying excessive traction to the infant's neck during delivery; in failing to keep the infant's neck and thoracic aligned during delivery so as to not cause excessive traction; in applying excessive downward traction to the infant's neck and shoulder during delivery thereby causing the infant-plaintiff to sustain severe brachia! plexus injury; in causing fundal pressure to be applied to plaintiff-mother's stomach; in delivering the infant violently; in failing to timely and properly employ McRoberts maneuver and suprapubic pressure to deliver infant-plaintiff; in delaying for over a period one hour after the infant's head first came out and retracted into the birth canal before employing McRoberts maneuver and suprapubic pressure; in failing to properly utilize McRoberts maneuver and suprapubic pressure to deliver the infant's anterior shoulder and body; in failing to have a pediatrician, neonatologist or a person capable of rendering neonatal care in the delivery room prior to the delivery of the plaintiff infant; in waiting or delaying until after the infant's whole body was born to call for assistance of a pediatrician or neonatologist; in failing to properly assess the fetal condition; in failing to properly and accurately document pertinent facts and events during and after labor and delivery; in improperly documenting pertinent events during and after labor and delivery; in doctoring, altering or falsifying plaintiffs' medical records, audit trails and/or metadata; in improperly causing Collins to document in the plaintiff-mother's hospital record the estimated fetal weight was 3350 grams on June 1, 2020, when no sonogram, nor Leopold maneuver nor clinical estimation of fetal weight was performed on said date; in falsifying the time from delivery of head to delivery of shoulder; in improperly causing and/or allowing plaintiffs' medical records to be discarded, falsified and/or misplaced, including but not limited to, sonography or ultrasound films, pictures or reports, umbilical cord blood gas sample and/or analysis reports; in failing to obtain informed consent and/or make full and reasonable disclosure to plaintiff-mother of the nature and extent of her pregnancy, including, pelvic measurements, gestational age, late term, postdate pregnancy, macrosomia, shoulder dystocia complication and the risks associated therewith; in failing to make full or reasonable disclosure of all of the risks and benefits of the treatment rendered that a reasonable physician under similar circumstances would have disclosed; in failing to obtain informed consent of the plaintiff-mother prior to having her administered with Pitocin induction of labor; in causing plaintiff-mother to be administered with Pitocin for induction of labor for vaginal delivery of a macrosomic fetus without informed consent of the risks and benefits thereof and/or alternatives thereto thereby causing her to undergo a traumatic vaginal delivery of a macrosomic baby, to suffer excessive postpartum hemorrhage; postpartum pubic symphysis diastasis and the infant to undergo a severe traumatic birthing process, fetal distress and/or possible oxygen deprivation; in failing to properly treat and/or manage plaintiff-mother's injuries; and in improperly causing plaintiff-mother to undergo a violent and traumatic vaginal delivery of a macrosomic baby, thereby causing her to suffer excessive postpartum hemorrhage; postpartum pubic symphysis diastasis and other injuries.

Plaintiffs claim the infant-plaintiff sustained severe permanent birth injuries, including [*12]permanent left brachial plexus birth injury with traumatic avulsion of C7 and C8 nerves, Erb's palsy due to birth trauma with CS, C6, C7 involvement, global developmental delays, and expressive language impairment and that the plaintiff-mother suffered pubic symphysis diastasis, recto-vaginal fistula, severe and recurring pain, and suffering as a result of Guterman's negligence.

Guterman contends that she did not depart from accepted standards of obstetrical care with respect to the treatment rendered to the plaintiffs and any alleged injuries were not proximately caused by any alleged deviations from the standard of care.

Guterman's contentions are supported by the expert affirmations of Gary Mucciolo, M.D., and Walter Molofsky, M.D., both of whom support their opinions with specific references to the record including, deposition testimony and medical records.

In opposition, plaintiffs have supported their contentions with an expert affirmation of a physician (name redacted) duly licensed to practice medicine in in New York and who is board certified in obstetrics and gynecology and maternal-fetal medicine. The expert supports the opinion with specific references to the record including, deposition testimony and medical records.

Through her submissions, Guterman has satisfied her burden of establishing prima facie entitlement to summary judgment. As such, the burden thereafter shifted to the plaintiffs to produce evidentiary proof in admissible form sufficient to establish issues of fact, which would require a trial of the action.

Except as noted below, the plaintiffs, by their submissions, have successfully refuted the defendants' showing of prima facie entitlement to summary judgment by demonstrating the existence of material issues of fact, which preclude summary judgment, relating to, inter alia, the significance of measuring fundal height; whether a c-section should have been offered and/or performed; whether the fetal weight was estimated appropriately via ultrasound and Leopold maneuvers; and whether excessive lateral traction was applied to the fetal head and neck during the delivery of the infant.

However, the plaintiffs have failed to refute that Guterman did not fraudulently tamper with the SIUH records to reflect that the infant-plaintiff was born within 1 minute of a noted shoulder obstruction, and that she did not destroy sonogram imaging from June 1, 2020. As such all claims regarding the falsifying and/or the destruction of records/evidence alleged against the defendants are denied.

Accordingly, Guterman's motion is denied except as noted otherwise herein.

The medical records and testimony establish that the plaintiff's attending physician, Guterman, controlled the labor and delivery, directed, and supervised all actions of the assisting residents, and oversaw the plaintiff's labor, delivery, and post-delivery care from June 1, 2020, until June 3, 2020. Absent any evidence that a hospital resident exercises independent medical judgment, the resident will not be liable for medical malpractice, as they are acting under the direct supervision and the direction of the attending, so long as the attending's directions did not so greatly deviate from normal practice that the resident should be held liable for failing to intervene. Crawford v Sorkin, 41 AD3d 278, (1st Dept 2007); See also, Mezzone v Goetz, 145 AD3d 573 (1st Dept 2016) (Holding that summary judgment should have been granted to a resident whose care of plaintiff was at all times under the supervision of attending physicians); Soto v Andaz, 8 AD3d 470 (2d Dept 2004); Nasima v Dolan, 149 AD3d 759, (2d Dept 2017); [*13]Leavy v Merriam 133 AD3d 636 (2d Dept 2015). This rule is applicable even where the resident actively participated in performing a procedure (see Sklarova v Coopersmith, 180 AD3d at 510).

Guterman testified that she monitored and supervised the labor and delivery admission of the plaintiff-mother, tracked the plaintiffs' status during this admission by communicating with residents Collins and Mowzoon, and was present to oversee the delivery of the infant-plaintiff. It is Dr. Mucciolo's opinion (NYSCEF Doc. No. 212) that there is no evidence to suggest that the directives of Guterman deviated from normal practice so greatly that these residents should be held liable for failing to intervene.

Dr. Mucciolo's opines that the care rendered by Collins and Mowzoon during the plaintiffs' labor and delivery admission was appropriate and within the standard of care. He opines that here is no evidence to suggest that either of these residents acted in contradiction to the directives of their attending physician, nor is there any indication that they acted independently or outside the scope of any of Guterman's directives. It is his opinion that residents Collins and Mowzoon acted properly and at the direction and control of attending physician, Guterman.

By their respective showings, Collins and Mowzoon have established that the care they rendered during the labor and delivery admission at SIUH was supervised by Guterman and that neither exercised independent medical judgment in their care and treatment of the plaintiffs during said admission. The plaintiffs have failed to refute their respective showings. Plaintiffs' opposing expert opinion is speculative and conclusory in this regard and, as such, Collins and Mowzoon are each entitled to summary judgment.

Inasmuch as the plaintiff's remaining claims against these defendants are based on vicarious liability for the negligent acts of its employees, their motions must be denied. Based on the record submitted for review, it remains unclear as to which named entity employed Spierer and Guterman. As such, issues of fact exist as to whether Spierer and Guterman were employees of SIUH or Northwell.

The plaintiffs claim that as a result of the defendants' negligent treatment, rendered during the labor and delivery, the infant suffered a hypoxic injury resulting in failure to thrive or reach developmental milestones; global delays in development necessitating referral to Early Intervention Program; significant delays in conversational speech and language skills; delayed verbal skills; cognitive deficits and difficulties; communicative deficits and difficulties; developmental deficits and disabilities; adaptive delays; expressive language delay; speech impairment and/or delay. The defendants contend that the infant did not suffer a hypoxic injury and none of the claimed injuries are causally related to the treatment they provided.

The defendants support their contention with the opinion of Walter Molofsky, M.D., a physician duly licensed to practice medicine in New York and who is board certified in pediatrics and child neurology. Dr. Molofsky affirms that by virtue of his extensive education, training and experience in the field of pediatric neurology, he is fully familiar with the standards of care for those clinicians caring for infants and that by virtue of his education, training and experience, he is familiar with the diagnosis and treatment of brain injuries in children, as well as the practice of reviewing and interpreting radiological imaging in connection with same (NYSCEF Doc. No. 213 paragraphs 1-3).

Dr. Molofsky further states that he reviewed the brain MRI films of the infant from [*14]NYU, dated November 25, 2022, and opines that they reveal entirely normal findings, as reported by interpreting radiologist, Dr. Young. He states that the films reveal normal brain parenchyma without evidence of acute ischemia, hemorrhage or mass lesion; that the ventricles were of normal size, with no abnormal extra-axial collection or abnormal susceptibility; that the flow voids at the infant's skull base were normal; that the cerebellar tonsils were in normal position; that there was no abnormal susceptibility artifact and no noted white matter injury or volume loss; that the myelination pattern was normal for the infant's age, and the infant's midline structures were well formed. He further opines that the MRI films reveal a normal brain MRI with no evidence of a structural abnormality or evidence of an ischemic event, nor any evidence of a white matter injury (previously or currently) and, accordingly, there is no evidence that the infant-plaintiff sustained any brain injury or acquired developmental or neurological injury at any point prior to November 25, 2022, as confirmed by the infant's birth records. Dr. Molofsky opines that "there is therefore no medical evidence to support a finding that the infant sustained a brain injury or acquired developmental or neurological injury while under the care of the moving defendants at any time such that may result in the claimed injuries of delays in speech, communication, or development, or cognitive deficiencies and adaptive delays." (NYSCEF Doc. No. 213 paragraph 52-53). He further opined that any developmental, speech or adaptive delays suffered by the infant-plaintiff stem from congenital delays and genetic factors and not from any event associated with the medical care rendered during the prenatal period, post-natal period, or birth event for the infant (NYSCEF Doc. No. 213 paragraphs 9 and 55). The defendants' expert has sufficiently established that, based on the MRI findings, the child did not suffer a hypoxic injury during the labor and delivery events and the alleged associated injuries are not causally related to the treatment provided by the defendants. The burden thereafter shifted to the plaintiff to demonstrate the existence of material issues of fact which would preclude summary judgment on this causation issue.

The plaintiffs have failed to refute the defendants' prima facie showing of entitlement to summary judgment regarding these causation claims. Plaintiffs' expert is not qualified to offer opinions regarding the interpretation of brain MRIs. The plaintiff's expert failed to lay the requisite foundation that he/she is qualified to offer opinions regarding the interpretation and findings of a brain MRI, that he/she is fully familiar with the standards of care for those clinicians caring for infants and that he/she is familiar with the diagnosis and treatment of brain injuries in children, as well as the practice of reviewing and interpreting radiological imaging in connection with same (NYSCEF Doc. No. 266 paragraphs 3, 4, and 8 and Doc. No. 206 paragraphs 2-7). Consequently, the submitted affirmation is of no probative value.

Even if plaintiffs' OBGYN-MFM expert is deemed qualified to offer opinions on the interpretations and findings of brain MRIs, the expressed opinions regarding the conceded normal MRI (NYSCEF Doc. No. 266 paragraph 63) are conclusory and speculative.

It is well settled that "while it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable." Tsimbler v Fell, 123 AD2d 1009 (2d Dept 2014). The Court in Tsimbler further held that "where a physician opines outside of his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered" (See also Shectman v Wilson, 68 AD3d 848 [2d Dept 2009]; Geffner v North Shore Univ. Hosp., 57 AD3d 839 [2008]; Bjorke v Rubenstein, 53 AD3d [*15]519 [2009]; Simpson v Edghill, 169 AD3d 737 [2d Dept 2019]; Feuer v Ng, 136 AD3d 704 [2d Dept 2016]).

The defendants' have sufficiently established that, based on the MRI findings, the child did not suffer a hypoxic injury during the labor and delivery events and the alleged associated injuries are not causally related to the treatment provided by the defendants. As such, claims of negligence related to cord blood gas analysis, "turtle sign", head to body delivery time, et cetera, are moot. Accordingly, the plaintiffs have failed to refute the defendants' showing and have failed to raise a triable issue of fact, as required to avoid summary judgment on this issue of causation.

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]). 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.

Public Health Law § 2805-d (2) states that "the right of action to recover for medical, dental or podiatric malpractice based upon a lack of informed consent . . . is limited to those cases involving either (a) non-emergency treatment, procedure or surgery, or (b) a diagnostic procedure, which involved invasion or disruption of the integrity of the body."

Except as noted below, the defendants have failed to make a prima facie showing of entitlement to summary judgment regarding the plaintiffs' lack of informed consent claim. Issues of fact exist as to whether the defendants obtained an appropriate informed consent from the plaintiff for induction with Pitocin with vaginal delivery and/or whether they failed to offer c-section as an alternative. The opinions of the defendants' experts rest on the contention that a c-section was not "indicated" (as opposed to being contraindicated) and are otherwise stated in conclusory fashion rendering them nonprobative. (NYSCEF Doc. No. 182 paragraphs 30-33; NYSCEF Doc. No. 212 paragraphs 27 and 33). Accordingly, the plaintiffs need not refute these arguments. It is well established that when a party moving for summary judgment has not met its initial burden of setting forth evidentiary facts sufficient to establish entitlement to judgment as a matter of law, the motion should be denied without considering the sufficiency of the opposing papers. See Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 (1985); Fotiou v Goodman, 74 AD3d 1140 (2d Dept 2010).

Regarding Collins and Mowzoon, the court finds that, as a matter of law, the lack of informed consent claims must be dismissed as alleged against them. With respect to a cause of action predicated on lack of informed consent, "where a private physician attends his or her patient at the facilities of a hospital, it is the duty of the physician, not the hospital, to obtain the [*16]patient's informed consent" (see Cynamon v Mount Sinai Hosp., 163 AD3d 923 [2nd Dept 2018]; Salandy v Bryk, 55 AD3d 147, [2nd Dept 2008]). These residents acted under the supervision and control of the private attending physician.

The plaintiffs claim that Spierer and Guterman abandoned her at the hospital on June 1 and June 2, 2020, by not meeting her there upon admission and/or not timely attending to her during the admission and by leaving her in the unsupervised care of inexperienced residents.

Spierer and Guterman both contend that they did not abandon the plaintiff and that she was in the care of appropriate and competent physicians upon and during her admission to SIUH. The defendants support their contentions with the opinions of Dr. Fried and Dr. Mucciolo who appropriately reference evidence in the record to support their respective opinions that these defendants did not depart by abandoning the plaintiff.

Both Guterman and Spierer testified that Guterman was on call that day, June 1, 2020, to attend to their patients at the hospital. Spierer did not go to the hospital to deliver the baby, and the labor and delivery was overseen by Guterman. (See, NYSCEF Doc. No. 187 pages 116-117; , NYSCEF Doc. No. 190 page 154). Guterman testified that she recalled going to the hospital in the evening of June 1st, to say hello to the plaintiff-mother, and did not thereafter leave the hospital. (See, NYSCEF Doc. No. 187 pages 112-113). Spierer and Guterman both testified that the custom of the practice of the office is for whomever is "on call" to present to the hospital to deliver a patient. (See, NYSCEF Doc. No. 187 pages 26-27; NYSCEF Doc. No. 190 page 153). Spierer also testified that he would never tell a patient that he would meet her at the hospital when it was not his day/night on call. He also testified that, "[I]f I was on call, I would have met the patient at the hospital. The fact that Dr. Guterman was managing the labor, meant she was on call." (See, NYSCEF Doc. No. 190 pages 153-154). Additionally, all patients are told that either Guterman or Spierer might deliver them, depending on who was on call (NYSCEF Doc. No. 190 page 153).

Guterman testified that the residents called her when the plaintiff arrived at the hospital, (NYSCEF Doc. No. 187 pages 116-117), and she was at the hospital on the evening of June 1, 2020, and said hello to the plaintiff-mother. (NYSCEF Doc. No. 187 pages 112-113). She also received calls from the interns and was consulting with them until her arrival (NYSCEF Doc. No. 187 pages 148-158).

An attending has the right to assume that the hospital complied with its obligation to provide experienced personnel (Zophy v. State, 27 AD2d 414, 279 N.Y.S.2d 918 (4th Dep't 1967), judgment aff'd, 22 NY2d 921, 295 N.Y.S.2d 50, 242 N.E.2d 86 (1968) to carry out his orders or to competently treat the patient. Stern v. Yasuna, 15 NY2d 741, 257 N.Y.S.2d 172, 205 N.E.2d 309 (1965); White v. Prospect Heights Hospital, 278 A.D. 789, 103 N.Y.S.2d 859 (2d Dep't 1951); Howe v. Medical Arts Center Hospital, 261 A.D. 1088, 26 N.Y.S.2d 957 (2d Dep't 1941), judgment aff'd, 287 NY 698, 39 N.E.2d 303 (1942). See also Baidach v. Togut, 8 AD2d 838, 190 N.Y.S.2d 120 (2d Dep't 1959) (the physician had the right to rely upon the competency of the hospital staff particularly that of the resident physician to insert the needle properly).

Even if Spierer did tell the plaintiff he would meet her at the hospital and manage the labor and delivery and subsequently did not, a physician who is unable to care for the patient does not depart from the standard of care so long as he or she arranges to transfer the care of the patient to another well-qualified physician (Kleinert v Begum, 144 AD2d 645 [1988]; see also Lener v Baron, 20 AD2d 814 [1964]). On this record, Spierer has established that he complied [*17]with the requisite standard of care. Brown v Bowman 42 AD3d 390 (1st Dept 2007).

Through their respective submissions, Spierer and Guterman have satisfied their burden of establishing prima facie entitlement to summary judgment on the issue of abandonment. As such, the burden thereafter shifted to the plaintiffs to produce evidentiary proof in admissible form sufficient to establish issues of fact, which would require a trial of the action.

The plaintiffs' expert's opinion on the issue of abandonment is speculative and conclusory. Consequently, the plaintiffs have failed to refute the defendants' showing and have failed to raise a triable issue of fact, as required to avoid summary judgment on this issue of causation. Accordingly, claims of abandonment are dismissed.

The plaintiff-mother claims that as a result of the defendants' negligent treatment rendered during her labor and delivery, she sustained injuries including hip pain, excessive bleeding, pubic symphysis diastasis and a recto-vaginal fistula. These claims are unsupported by the record before this court. The plaintiff has failed to refute the defendants' prima facie showing of entitlement to summary judgment regarding her individual claims The opinions expressed by the plaintiffs' expert are speculative, conclusory, and unsupported by the record (NYSCEF Doc. No. 266 paragraphs 56-57). As such, all claims related to the same are dismissed.

The plaintiff has failed to refute Spierer's prima facie showing of entitlement to summary judgment regarding the claim that he negligently performed the circumcision of the infant-plaintiff. As such, all claims related to the same are dismissed.

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 (004) is denied except that the defendants' affirmative defenses alleging plaintiff's contributory and/or comparative culpable conduct were withdrawn by defense counsel, on the record, during oral argument. As such, those defenses are dismissed; and it is further,

ORDERED, that the motion (003) of the defendant, Spierer, is denied except as to those claims which are specifically noted above; and it is further,

ORDERED, that the motion (005) of the defendant, Guterman, is denied except as to those claims which are specifically noted above; and it is further,

ORDERED, that the motions (005) of the defendants SIUH and Northwell are denied except as to those claims which are specifically noted above; and it is further,

ORDERED, that the motions (005) of the defendants Collins and Mowzoon are granted in their entirety; and it is further,

ORDERED, that any additional requests for relief are hereby denied; and it is further,

ORDERED, that the Clerk enter Judgment accordingly.