Recitation, as required by CPLR §2219 [a], of the papers considered in the review:

Defendants Auja McDougale, M.D. ("Dr. McDougale"), Nicole Hampton, R.N. ("R.N. Hampton"), and St. Luke's-Roosevelt Hospital Center s/h/a Mount Sinai West ("Mount Sinai") move for an Order, pursuant to CPLR 3212, granting summary judgment in their favor and dismissing Plaintiffs' claims against them (Seq. No. 2).

Defendants Mahendranauth Sohan, M.D. ("Dr. Sohan") and Mahendranauth Sohan, M.D. P.C. cross move for an Order, pursuant to CPLR 3212, granting summary judgment in their favor and dismissing Plaintiffs' Complaint against them (Seq. No. 3).

Plaintiffs submitted opposition to the motions of Dr. Sohan, Mahendranauth Sohan, M.D. P.C., Dr. McDougale, and Mount Sinai.

Plaintiffs stated in their opposition that they "do not oppose the portion of this motion concerning Nicole Hampton, R.N. individually." Accordingly, the part of the motion seeking summary judgment on behalf of R.N. Hampton is granted without opposition. The claims against Mount Sinai for vicarious liability for the acts and omissions of Nicole Hampon, R.N. are also dismissed.

Additionally, Plaintiffs do not oppose the part of the motions seeking dismissal of the cause of action for lack of informed consent. They do not oppose the dismissal of any vicarious liability claims against Mount Sinai for the acts or omissions of Dr. Sohan, the private attending physician. Finally, they do not oppose dismissal of any claims related to all prenatal or post-delivery care and treatment. Defendants' motions are therefore granted to the extent of dismissing those claims without opposition.

Plaintiffs commenced this action on June 4, 2020, asserting claims of medical malpractice, lack of informed consent (dismissed herein), and loss of services, individually and on behalf of their infant son, J.A.B. The claims arise from the delivery of J.A.B. on [date redacted], 2019, which was complicated by shoulder dystocia and a brachial plexus injury.

The mother in this action received prenatal care from Dr. Sohan from January 16, 2019 through [date redacted], 2019. Due to advanced maternal age, full-term status, elevated diastolic blood pressure and urine protein, Dr. Sohan's assessment and plan on [date redacted] was to admit her to Mount Sinai hospital for labor induction.

The patient was admitted to Mount Sinai in the early morning of [date redacted], 2019, with Dr. Sohan as the attending ob/gyn. She was administered epidural anesthesia, and labor was induced with Pitocin and artificial rupture of membranes. She began pushing at approximately 7:45 p.m.

After delivery of the head, the infant's shoulder became trapped in the mother's pelvis, and Dr. Sohan called for assistance. According to the parties' testimony, multiple physicians and nurses entered the room. R.N. Hampton noted in the medical records that an "emergency protocol" was initiated in response to shoulder dystocia and McRoberts Maneuvers (repositioning the mother's legs to facilitate delivery) were performed. Dr. Sohan recorded in his operative report that "the first maneuver attempted was McRoberts, the second maneuver was suprapubic pressure, and the third maneuver was delivery of posterior arm."

Dr. McDougale, a Mount Sinai attending physician, was one of the physicians who entered the room, and was listed as an "assisting" delivery provider in Dr. Sohan's operative report. Dr. McDougale testified that she assisted in the McRoberts Maneuver by lifting the mother's leg to attempt to shift the baby. Dr. Sohan testified that Dr. McDougale tried to manually deliver the baby after his own attempt; [*2]when asked if any physicians had their hands on the baby's head, Dr. Sohan responded "I believe after I tried, Dr. McDougale tried. . . She attempted to deliver the baby." Dr. Sohan further testified that after Dr. McDougale tried to "disimpact the shoulder" and deliver the baby, another physician with smaller hands made a successful attempt. The mother testified that multiple providers were "trying to actually get the baby out and they were pulling and pulling."

Non-party Maria Teaiwa-Rutherford, M.D. ("Dr. Teaiwa-Rutherford") testified that she ultimately delivered the infant, stating:

"There were a lot of people in there. The present attending, the house attending, lots of nurses, residents, and it was a shoulder dystocia. So when I entered the room, I wasn't sure how many people had tried to deliver the baby at that point, but I remember saying, 'I have small hands. Do you want me to try?' And then I put on some sterile gloves and jumped in and delivered the posterior arm, and then the baby was out."

The infant J.A.B. was delivered at 9:09 p.m. A note from R.N. Hampton stated that "Infant presented with decreased ROM [range of motion] of right arm. Full ROM other extremities." A 9:55 p.m. note from Dr. Sohan also documented "mild weakness" in the right arm. The infant was later diagnosed with Erb's palsy (brachial plexus injury), a nerve injury of his right shoulder and arm, with avulsion of the nerve root at C8 and T1.

Plaintiffs allege that the defendants departed from the standard of care in responding to the shoulder dystocia during labor and delivery. Specifically, Plaintiffs allege that one or more providers involved in the delivery applied "excessive downward traction on the baby's head while the shoulder was impacted," and they allege that this traction proximately caused the infant to suffer permanent nerve damage. Plaintiffs' claims against Mount Sinai arise from vicarious liability for Dr. McDougale, R.N. Hampton, and other employees or staff.

In evaluating a summary judgment motion in a medical malpractice action, the Court applies the burden shifting process summarized by the Second Department: "[A] defendant must make a prima facie showing either that there was no departure from good and accepted medical practice, or that the plaintiff was not injured by any such departure" (Rosenzweig v Hadpawat, 229 AD3d 650, 652 [2d Dept 2024]). "In order to sustain this prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's complaint and bill of particulars" (Martinez v Orange Regional Med. Ctr., 203 AD3d 910, 912 [2d Dept 2022]). "Once a defendant physician has made such a showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact, but only as to the elements on which the defendant met the prima facie burden. Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions." (Rosenzweig at 652 [2d Dept 2024] [internal quotation marks and citations omitted].) However, "expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact" (Barnaman v Bishop Hucles Episcopal Nursing Home, 213 AD3d 896, 898-899 [2d Dept 2023]). "In order not to be considered speculative or conclusory, expert opinions in opposition should address specific assertions made by the movant's experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record" (i.d. at 899).

In support of the motion on behalf of Mount Sinai (Seq. No. 2), the movants submit an expert affirmation from Gary Mucciolo, M.D. ("Dr. Mucciolo"), a licensed physician board certified in obstetrics and gynecology.

Dr. Mucciolo opines that the Mount Sinai physicians and staff complied with the standard of care in their response to a shoulder dystocia. He opines that in accordance with the standard of care, "the first step when shoulder dystocia is detected is for the attending obstetrician to call for help." He states that in this case, the mother's obstetrician Dr. Sohan (a private physician not employed by Mount Sinai) was primarily responsible for the delivery, monitoring any maneuvers performed, and supervising the assisting hospital staff. However, he opines that shoulder dystocia is an emergency and "any available [*3]obstetricians, nurses, anesthesia providers, and neonatal staff will come to the delivery room to assist the attending obstetrician." Therefore, he opines that the Mount Sinai providers appropriately responded by coming into the room to assist in timely delivering the rest of the infant's body.

Dr. Mucciolo opines that the next appropriate step is to perform the McRoberts Maneuver, i.e., "lifting the mother's legs up towards her abdomen to rotate the pelvis and widen the area for the shoulder to be released." Dr. Mucciolo opines that while this maneuver is performed, it is appropriate within the standard of care "for an assisting obstetrician to apply suprapubic pressure . . by placing her hands on the suprapubic region of the mother's abdomen and using the heel of the hand or a fist to apply moderate pressure downward and laterally to the fetal anterior shoulder." Dr. Mucciolo states that this is consistent with the testimony of the infant's mother and father that physicians pushed down on the stomach with their hands. As the records indicate that Mount Sinai physicians assisted Dr. Sohan in performing the McRoberts Maneuver and suprapubic pressure, Dr. Mucciolo opines that these efforts were proper.

If these maneuvers are not successful in releasing the shoulder, Dr. Mucciolo opines that an episiotomy incision could be made on the mother, although this is "not required by the standard of care." He also opines that alternate methods "such as the Rubin II maneuver or the Woods corkscrew maneuver" may be performed to manually rotate and bend the infant's posterior arm. Dr. Mucciolo opines that the ultimate delivery of the infant by "delivery of posterior arm," according to the medical records and testimony, was appropriate.

Dr. Mucciolo opines that "the use of gentle traction to guide the head out of the birth canal" in the setting of shoulder dystocia is not a departure from the standard of care. He opines that gentle traction is only contraindicated if there are "turtle signs," i.e., the infant's head presents and then retracts. The expert states there is no record of turtle signs and Dr. Sohan "could not recall" if they were present. He then opines based on Dr. Sohan's testimony that "he did not apply any traction after he identified the shoulder dystocia." The expert states that the maneuvers employed by the Mount Sinai staff — McRoberts Maneuver, suprapubic pressure, and delivery of the posterior arm — do not involve traction of the head.

Dr. Mucciolo specifically addresses the role of Dr. Teaiwa-Rutherford in the delivery. Although she is not named individually as a defendant, it is undisputed that she was a Mount Sinai employee for whom the hospital may bear vicarious liability, and the expert offers opinions on her alleged acts and omissions.

Dr. Teaiwa-Rutherford was not named in the medical records, but it was established by her testimony that she was the physician with "smaller hands" who ultimately delivered the infant. Based on her testimony of reaching into the mother to manually rotate the posterior arm, Dr. Mucciolo opines that "this is a proper technique for delivering the posterior arm" and it "resulted in the successful delivery of the infant-plaintiff" in a matter of seconds. Thus, he opines that she acted in accordance with the standard of care.

Finally, with respect to Dr. McDougale, individually and as an employee of Mount Sinai, the expert quotes her testimony that she assisted by lifting and holding the mother's leg to perform the McRoberts Maneuver. She testified that she did not have recollection of touching the baby's head or inside the mother. Based on this testimony, Dr. Mucciolo states that Dr. McDougale "never put her hands into the plaintiff-mother to attempt to deliver the infant-plaintiff," and "her role in the delivery was limited to holding the plaintiff-mother's right leg in the McRoberts position." He opines that this complied with the standard of care.

In sum, Dr. Mucciolo opines that all the Mount Sinai physicians and staff, including Dr. McDougale and non-party Dr. Teaiwa-Rutherford, "properly followed Dr. Sohan's instructions, which were not contraindicated, and did not commit any independent acts of negligence during the course of their treatment."

On the issue of proximate causation, Dr. Mucciolo opines that brachial plexus palsy is "the most common complication affecting the fetus" when shoulder dystocia occurs, and it may happen in the absence of medical malpractice. He opines that the nerves connecting the spinal cord to the shoulder, arm, [*4]and hand can become "stretched or torn as the maternal forces of labor push against the impacted shoulder." While he acknowledges that excessive traction may lead to brachial plexus injury, he opines that "any interventions to address shoulder dystocia, no matter how expertly performed, will increase strain on the brachial plexus." Thus, in the expert's opinion, brachial plexus palsy occurred in this case despite proper performance of the McRoberts Maneuver, suprapubic pressure, and delivery of the posterior arm.

Based on the expert affirmation, deposition testimony, and records submitted, the Court finds that the movants did not establish prima facie entitlement to summary judgment. Although the expert provides general opinions as to the standard of care for delivering an infant with shoulder dystocia, there remain questions of fact and credibility in this case as to the role of specific providers and whether they departed from the standard of care. Specifically, the opinions of the expert as to what degree of traction was applied, and thus whether said traction was excessive, are conclusory and controverted by the record. The expert briefly states that "gentle traction" of the head is not contraindicated in the absence of turtle signs, and that Dr. Sohan "could not recall if there was a turtle sign." The expert then states in a conclusory manner that no traction was applied by any of the defendants. This is supported only by the equivocal testimony of Dr. Sohan, Dr. McDougale, and Dr. Teaiwa-Rutherford on whether they personally applied any traction to the head.

The expert does not address the disputed facts in the record regarding Dr. McDougale's role in the delivery. The expert states that her role was limited to lifting the mother's leg for the McRoberts Maneuver, and that she "never put her hands" inside the mother or anywhere near the baby's head. Based on this assumption, he opines she complied with the standard of care and did not apply downward traction. However, the evidence is not clear that this was the only extent of Dr. McDougale's involvement. Dr. Sohan testified that Dr. McDougale attempted to manually "rotate the baby" from inside the mother and deliver the posterior arm, and this occurred between his own attempt and Dr. Teaiwa-Rutherford's successful delivery. He stated, "I believe after I tried, Dr. McDougale tried," and "Once I couldn't disimpact the shoulder, Dr. McDougale then tried to see if she could, and she couldn't, and subsequently the other doctor, who has much smaller hands . . . she was able to disimpact the shoulder and get the baby out." When questioned about this in her own deposition, Dr. McDougale only gave the non-definitive answer that she did not "recall touching the baby."

The expert fails to address this discrepancy in whether Dr. McDougale was one of the physicians who made contact with the baby's head. Thus, the expert's opinion that Dr. McDougale's role was "limited" to holding the mother's leg and she could not have applied any downward traction or force is premised on disputed facts. On that basis as well, the expert has not established prima facie that Dr. McDougale acted in accordance with the standard of care.

Similarly, although the record indicates that Dr. Teaiwa-Rutherford disimpacted the baby by delivering the posterior arm, the evidence is unclear as to whether she applied traction to the baby's head during that part of the delivery. The expert's opinion on behalf of Mount Sinai that Dr. Teaiwa-Rutherford complied with the standard of care is therefore speculative and without evidentiary support.

Notably, while the expert opines that this injury may occur in the absence of a departure from the standard of care, Dr. McDougale and Dr. Teaiwa-Rutherford each opined in their own depositions that it appeared J.A.B.'s injury was caused by excessive downward traction. Dr. Teaiwa-Rutherford testified that the specific injuries sustained by the infant — avulsion of the C8 and T1 nerves, and rupture of the C5, C6, and C7 — point to excessive downward traction of the head. She stated:

"Q: Am I correct that an injury like that was generally only caused by, in your training, by excessive downward traction?

"A: In the context of a delivery with shoulder dystocia, I would assume so."

[ . . . ]

"Q: Am I correct that for injuries like that, the only thing you've been taught and the only thing you teach is that these injuries only come about from excessive downward traction?

"A: Correct."

When Dr. McDougale was asked in her deposition if avulsion of multiple nerve roots showed excessive pressure or force, she also responded "Based on the information I have today, it does seem that there was force used."

This testimony on its face contradicts the expert's opinion that no downward traction was used in any of the maneuvers performed by the Mount Sinai staff. Two of the providers involved testified that excessive traction or force was seemingly applied, although they dispute which physician was responsible. There are clear issues of fact as to whether Dr. Sohan or the Mount Sinai physicians, Dr. McDougale and Dr. Teaiwa-Rutherford, were in a position to apply such force to the head during their attempts to deliver the baby. The expert's sweeping opinion that all the physicians acted within the standard of care is therefore conclusory, not supported by the record, and does not eliminate issues of fact.

In sum, the Court finds that the movants' submissions are insufficient to establish prima facie that all treatment provided by the Mount Sinai physicians, including co-defendant Dr. McDougale, complied with good and accepted medical practice.

Regarding causation, the opinions offered by Mount Sinai's expert Dr. Mucciolo are also conclusory and not supported by the evidence. Dr. Mucciolo opined that the infant's brachial plexus injury does not indicate that excessive downward force was applied. He stated that this type of injury can be caused by maternal pushing and by unavoidable strain on the brachial plexus even when the appropriate maneuvers to deliver the infant are performed. However, as discussed above in relation to liability, the testimony of Mount Sinai physicians Dr. McDougale and Dr. Teaiwa-Rutherford do not support his assessment. To reiterate, Dr. Teaiwa-Rutherford opined during her examination before trial that it was "correct" that excessive downward traction is the only way the infant's injuries from C5-T1 could occur. When asked if the infant's avulsion of multiple nerve roots indicated excessive force, Dr. McDougale also opined "it does seem that there was force used." As the expert's proffered theory on causation fails to account for the conflicting testimony of the physicians involved in the patient's care, and their assessment of his specific nerve root injuries, his affirmation is speculative, conclusory, and unsupported by the record as to proximate causation. There remain issues of fact and credibility as to proximate cause which must be resolved by a jury.

It should be noted that the Court rejects Plaintiffs' reliance on the Fourth Department case Muhammad v Fitzpatrick (91 AD3d 1353 [4th Dept 2012]), which involved the court's decision to preclude the defendant's expert testimony pursuant to a Frye hearing. While the issues underlying that case are seemingly similar to the case herein, insofar as they involve whether a birth injury was caused by "the birthing process" or the actions of the defendants, the fact-specific nature of that decision cannot be applied to the one before this Court. The underlying claims and injuries are not at all clear from the Muhammad holding, and the Court cannot presume they are identical to the facts and opinions offered by the movants' expert.

In sum, based on the opinions of the movants' expert and their submissions including testimony of the parties herein, the Court finds there remain issues of fact precluding summary judgment. The Mount Sinai defendants have therefore not met their prima facie burden, regardless of the sufficiency of the opposition papers.

In opposition, Plaintiffs submit an expert affirmation from a licensed physician, (name of expert redacted), board certified in obstetrics and gynecology.

Plaintiffs' expert opines that the Mount Sinai physicians and staff, including Dr. McDougale and non-party Dr. Teaiwa-Rutherford, departed from the standard of care in the delivery of an infant with shoulder dystocia. Central to the Plaintiffs' theory of the case is that the infant's injuries — specifically, "avulsion" or the nerves being "completely ripped from their roots" at C8 and T1, as well as ruptures from C5-C7 — indicate that excessive downward force was applied while attempting to dislodge the [*5]shoulder from the mother's pelvic bone.

As discussed above, there is a dispute over which provider (or providers) actually placed their hands on the baby's head, and the hospital records did not include all the physicians involved. (For example, there was no mention in the records of Dr. Teaiwa-Rutherford, who successfully delivered the baby after others failed, according to the testimony of multiple parties and non-parties.) Plaintiffs' expert cites to testimony supporting that Dr. Sohan, Dr. McDougale, and Dr. Teaiwa-Rutherford each attempted to reach inside the mother at some point after the shoulder dystocia was recognized and may have been responsible for the excessive traction. The expert opines that it only requires "one second of such force to cause a severe and permanent brachial plexus injury."

Plaintiffs' expert concurs with Dr. Mucciolo that the standard of care in the face of shoulder dystocia is to call for assistance, perform the McRoberts Maneuver, apply suprapubic pressure, and try to internally move the posterior arm if these techniques fail. However, Plaintiffs' expert disagrees that these techniques were properly performed. The expert opines that "medical providers should never use excessive downward traction on the baby's head," as this is well known to cause brachial plexus injury/Erb's palsy. The expert opines that the C8-T1 avulsion sustained by the infant indicates that at least one provider used such force, constituting a departure from the standard of care. Such avulsion led to permanent nerve injury in the shoulder and arm.

Additionally, Plaintiffs' expert notes that according to the mother and father's testimony, multiple Mount Sinai providers were incorrectly instructing her to push in the presence of shoulder dystocia. The mother testified that Dr. Sohan and R.N. Hampton both advised her not to push, but after various people "came flooding in," she was receiving conflicting instructions to "push, don't push, push, don't push." Plaintiffs' expert opines this was a departure from the standard of care by Mount Sinai physicians and staff, as pushing "will cause the baby's shoulders to become even more impacted against the pelvic bone," making delivery more difficult and increasing the risk of injury.

On the issue of proximate causation, Plaintiffs' expert opines, contrary to the movants' expert Dr. Mucciolo, that excessive downward traction of the head is the "only known possible cause of the severe and permanent brachial plexus injuries" sustained by the infant, including total avulsion of the nerve root at C8 and T1. The expert notes that this is consistent with the admissions made by Dr. McDougale and Dr. Teaiwa-Rutherford in their examinations before trial. In contrast to the movants' expert, Plaintiffs' expert opines that severity of these avulsions could not be caused by properly performed maneuvers or the "propulsive forces from the mother's contractions" alone, and they could not have occurred without excessive downward traction.

Based on these submissions, the Court finds that even if the movants had met their prima facie burden, Plaintiffs have raised clear issues of fact as to the movants' compliance with the standard of care. Due to the discrepancies in the medical record and multiple physicians involved after shoulder dystocia was identified, including Mount Sinai employees Dr. McDougale and Dr. Teaiwa-Rutherford, there are issues of fact and credibility at the heart of this case which cannot be resolved as a matter of law, including whether the providers applied downward traction to the baby's head and gave the mother conflicting instructions to push. Plaintiffs' expert has further raised an issue of fact as to causation, offering a counter-opinion to the movants' expert that the infant's brachial plexus injury could not have occurred from natural forces and proper maneuvers.

"When experts offer conflicting opinions, a credibility question is presented requiring a jury's resolution" (Stewart v. North Shore University Hospital at Syosset, 204 AD3d 858, 860 [2d Dept. 2022], citing Russell v. Garafalo, 189 AD3d 1100, 1102 [2d Dept. 2020]). In this case, conflicting opinions as to the use of excessive traction were proferred not only by the parties' experts but also the testifying physicians. The motion for summary judgment must therefore be denied, except as to the unopposed claims of vicarious liability for Dr. Sohan, lack of informed consent, and prenatal and post-delivery care.

Turning to the cross motion (Seq. No. 3), Dr. Sohan does not submit an individual expert affirmation, but instead cites and adopts the opinions of the co-defendants' expert, Dr. Mucciolo. The [*6]Court notes that Dr. Mucciolo's affirmation was primarily focused on the role of the Mount Sinai physicians and nurses, emphasizing that Dr. Sohan was a private attending physician. Although their expert did opine overall that Dr. Sohan's actions were "not contraindicated" and "appropriate pursuant to the standard of care," he did not address all the claims against him in the bill of particulars. The Court finds these submissions are insufficient to meet Dr. Sohan's prima facie burden and eliminate triable issues of fact in this case.

Notwithstanding, Plaintiffs submit an expert affirmation from their redacted obstetrics and gynecology expert, setting forth opinions that Dr. Sohan departed from the standard of care in his management of shoulder dystocia complication, and that the infant's injuries are consistent with Dr. Sohan and/or the assisting physicians applying downward force to the head. Therefore, even if Dr. Sohan had met his prima facie burden, Plaintiffs have raised issues of fact and credibility which preclude summary judgment.

Dr. Sohan also adopts the opinions of Dr. Mucciolo as to proximate causation. As already discussed, Plaintiffs' expert addressed and rebutted Dr. Mucciolo's opinions on this issue. Thus, even if Dr. Sohan's submissions met the prima facie burden, Plaintiffs have raised a triable issue of fact as to whether the infant's nerve injury was caused by improper use of downward traction.

As there remain issues of fact as to the underlying medical malpractice claims on behalf of the infant J.A.B., the defendants' motions are also denied with respect to the mother and father's derivative claims for loss of services (see Weiss v Vacca, 219 AD3d 1375, 1378 [2d Dept 2023]; Powell v Prego, 59 AD3d 417, 418 [2d Dept 2009]).

It is hereby:

ORDERED that the part of the motion (Seq. No. 2) seeking summary judgment on behalf of Nicole Hampton, R.N. is granted without opposition, and Plaintiffs' Complaint against Nicole Hampton, R.N. is dismissed; and it is further

ORDERED that any vicarious liability claims against Mount Sinai for the acts and omissions of Nicole Hampton, R.N. are dismissed; and it is further

ORDERED that the part of the motion (Seq. No. 2) seeking summary judgment on behalf of Mount Sinai is granted to the extent of dismissing the lack of informed consent claim, dismissing any claims for prenatal or post-delivery care, and dismissing any vicarious liability claims for the acts and omissions of Dr. Sohan, and the motion is otherwise denied; and it is further

ORDERED that the part of the motion (Seq. No. 2) seeking summary judgment on behalf of Dr. McDougale is denied; and it is further

ORDERED that the cross motion (Seq. No. 3) seeking summary judgment in favor of Dr. Sohan and Mahendranauth Sohan, M.D. P.C. is granted to the extent of dismissing the claim for lack of informed consent and dismissing any claims related to prenatal or post-delivery care, and the motion is otherwise denied; and it is further

ORDERED that the caption is amended to read:

Plaintiffs,

Defendants.

The Clerk shall enter judgment in favor of NICOLE HAMPTON.

This constitutes the decision and order of this Court.