A.C., an Infant by her Mother and Natural Guardian, Eileen Mendez, Plaintiffv.The New York Presbyterian Hospital, DefendantFor all the following reasons, NEW YORK PRESBYTERIAN HOSPITAL’s motion pursuant to CPLR Section 3212 is hereby denied as a question of fact exists as to the care and treatment of A.C., an infant.The instant matter was commenced by the filing of a Summons and Complaint on September 25, 2014, and issue was joined on October 27, 2014. Discovery proceeded and on November 7, 2017, a Note of Issue was filed.Preliminarily, all claims concerning the care and treatment of the mother, EILEEN MENDEZ, are hereby dismissed as Plaintiff has not opposed that branch of Defendant, NEW YORK PRESBYTERIAN HOSPITAL’s motion.The infant Plaintiff, A.C., was born on August 27, 2010, at twenty-five (25) weeks gestation weighing eight hundred nineteen (819) grams. Her Apgar score was six (6) at one (1) minute and nine (9) at five (5) minutes and A.C. was transferred to the NICU and her continued respiratory distress was treated by the staff at NEW YORK PRESBYTERIAN HOSPITAL.Although Plaintiff’s expert in her Affidavit states that NEW YORK PRESBYTERIAN HOSPITAL departed from standard medical practice in treating A.C.’s severe respiratory problems, it is the care and treatment concerning the PDA (Patient Ductus Arteriosus) that gives rise to the issues of fact.PDA is a blood vessel that allows blood to flow around a baby’s lungs and usually closes soon after birth in a full-term delivery. If the duct remains open, the transmission of blood between the aorta and pulmonary artery becomes irregular. PDA may be presumed in a premature baby at nine (9) days of life. Plaintiff’s Expert Affidavit, Dr. Carolyn Crawford, Page 6, Paragraph 23. Dr. Carolyn Crawford also stated:“A PDA may be presumed in a 25 week gestation premature infant at 9 days of life; the main concern is whether the unclosed duct is or may soon be shunting blood from the systemic circulation to the pulmonary circulation. This occurs when pulmonary vascular pressures are lower than systemic pressures in the premature neonate, causing blood to flow from the aorta through the open (patent) ductus to the pulmonary circulation, and overfilling the lungs while reducing perfusion of the viscera and kidneys. The echocardiogram ordered on September 5, 2010, was needed not just to evaluate the nature and effect(s) of the baby’s heart murmur, but to determine the extent of reverse flow, if any through her (most likely present) PDA.” Plaintiff’s Expert Affidavit, Dr. Carolyn Crawford, Paragraph 2.Although an echocardiogram was ordered on September 5, 2010, and that test would have evaluated the infant for PDA the test was canceled by a resident and not performed.On September 6, 2010, Dr. Diacovo, a staff doctor at NEW YORK PRESBYTERIAN HOSPITAL, wrote, “in an interval progress summary note entered at 3:20 p.m. that an ” [e]chocardiogram is to be performed to rule out PDA.” Dr. Diacovo’s plan included the following: “If an echocardiogram shows evidence of hemodynamically significant PDA, we will begin indomethacin therapy at 0.2ml/kg for the first dose and potentially 0.1 mg/kg for the second and third dose. We will consider low dose dopamine if starting indomethacin and keep fluid restricted at around 120ml/kg/day.” Plaintiff’s Expert Affidavit, Dr. Carolyn Crawford, Paragraph 27.Clearly, he was unaware that the echocardiogram had been cancelled.On September 9, 2010, an echocardiogram was again ordered and showed a large PDA. The blood flow was not in the correct direction.A.C. continued to have severe respiratory issues and metabolic acidosis and a host of other severe signs and symptoms indicating renal failure.On September 15, 2010, a large PDA and blood flow reversal was described and a repeat echocardiogram on the 15th of September confirmed the prior finding. The Defendant, NEW YORK PRESBYTERIAN HOSPITAL’s staff now sought a Cardiothoracic Surgery consultation.At this time, indomethacin or ibuprofen was not an option as the Plaintiff was approximately twenty-one (21) days old and age is a factor in the effectiveness of the medications.Dr. Kashyap of the NEW YORK PRESBYTERIAN HOSPITAL testified as follows:Q. Anything else in addition to kidney function that was contraindicating the Indocin or the —MR. DRACH: Off the record.(Whereupon, an off-the-record discussion was held)Q. — the Indocin or the ibuprofen?A. No kidney function would be the main thing. The other is the after of the child, you could always still try. It may not work, because the kid is — the infant is 21 days old.Q. So, does Indocin usually work better if it’s given earlier?A. Yeah, within the first seven to tenth (sic) days.Surgery was now the only option.On September 16, 2010, the infant Plaintiff underwent closure of the PDA by a Cardiothoracic Surgeon.On September 28, 2010, a head ultrasound indicated the development of Periventricular Leukomalacia (PVL). PVL is a condition that causes small areas of brain tissue to die.An MRI performed on December 2, 2010, confirmed PVL.Plaintiff’s expert states the following:“It is my opinion that the infant’s untreated PDA caused low systemic blood pressures and impaired circulation to and perfusion of the kidneys, which resulted in metabolic acidosis and worsening respiratory status and hemodynamic instability in a vicious cycle. Low blood pressures and metabolic acidosis in turn were a proximate cause of the infant’s PVL, which results from fluctuating cerebral perfusion in the preterm infant.Autoregulation of cerebral perfusion — the mechanism by which a steady state of cerebral blood flow is maintained over a varying range of systemic blood pressures — is underdeveloped in the extremely preterm infant. Thus, when systemic blood pressure drops, cerebral perfusion pressure (which is to begin with only minimally adequate to perfuse the cells closest to the ventricles because they are in the “watershed” zone at the ends of the penetrating vascular network) does not increase to maintain an adequate circulation to the entire brain. This is because the arterioles cannot adapt their tone in response to decreases in cerebral perfusion pressure; thus vulnerable areas, which are under normal conditions already relatively hypoperfused (primarily the periventricular white matter) become ischemic.Additionally, the premature brain is particularly vulnerable to stress-related injury. Fluctuations in systemic pressure result in intermittent ischemia to the periventricular which matter. Acidemia compounds the metabolic insult to the intermittently ischemic cells. So, too, does hypoglycemia, which exacerbates injury to brain cells during hypoxia, because the compensatory anaerobic respiration in the hypoxic state is impaired by inadequate glucose.Accordingly, in summary, it is my opinion that the NEW YORK PRESBYTERIAN neonatology staff departed from accepted practice by failing to immediately put the newborn on high frequency oscillatory ventilation when she was intubated and unnecessarily delayed administration of surfactant. This contributed to the worsening respiratory status and PIE.Even more significantly, the NICU staff failed to evaluate the infant’s PDA in a timely manner, and needlessly delayed the echocardiogram which was the precursor to its treatment. The staff departed by delaying evaluation of the PDA until after its harmful effects on the systemic circulation — hypoperfusion of the kidneys, increased hemodynamic instability and metabolic acidosis — were allowed to develop. The delay in treatment of the PDA also was a substantial contributing factor in the infant’s progressively worsening respiratory failure and PIE. The low blood pressure, wide pulse pressures, hypoglycemia and acidosis that were attributable to the untreated PDA in turn were a proximate cause of the infant plaintiff’s PVL.”This Court finds issues of fact remain to be determined by a Jury, in particular, the timeliness of diagnosing, evaluating and treating the PDA which could have been a cause of the infant’s condition today.A Defendant in a medical malpractice action establishes prima facie entitlement to Summary Judgment when he or she establishes that in treating the Plaintiff he or she did not depart from good and accepted medical practice or that any such departure was not the proximate cause of Plaintiff’s alleged injuries, Scalisi v. Oberlander, 96 AD3d 106.In the present case, Defendant did establish its prima facie entitlement and its expert, Dr. Steven A. Ringer, in sum and substance, stated the following:“The seriousness of the infant-Plaintiff’s condition in the first weeks of life, and the significance of her extreme prematurity, her low birth weight and her severe, bilateral lung disease on her outcome cannot be overstated. Plaintiff claims that the Defendant’s treatment caused the infant-Plaintiff to develop cerebral palsy (CP), PVL, global developmental delays, brain damage, mental retardation, central nervous system injury, neurological/cognitive deficits, motor delays, seizure disorder, and related conditions. It is my opinion to a reasonable degree of medical certainty that none of these alleged injuries or conditions can be attributed to departures from the standard of care by NYPH during their treatment of the infant-Plaintiff between August 27, 2010 and December 3, 2010. The Defendant’s neonatal treatment was within the standard of care in all respects, and the infant-Plaintiff’s conditions are the result of her extreme prematurity, her low birth weight and severe, bilateral lung disease.”As stated above, Plaintiff’s expert, Dr. Carolyn Crawford, gave her opinion as to the departure during the Defendant, NEW YORK PRESBYTERIAN HOSPITAL’s treatment and care of the infant Plaintiff and how it is a proximate cause of Plaintiff’s injuries.Plaintiff’s Expert’s Affidavit raises triable issues of fact as to the care and treatment, in particular the PDA of the infant Plaintiff. See, Matthews v. Stuyvesant Square Chemical Dependency Services et al., 158 AD3d 392.Furthermore, the causation issue is one that must be decided by a Jury. See, Minelli v. Good Samaritan Hospital, 213 AD2d 705 (1995); Ongleyo Mount Sinai Health System, et al., 2017 WL55 15856.For all the foregoing reasons, Defendant, NEW YORK PRESYBTERIAN HOSPITAL’s motion is denied as to the infant Plaintiff, A.C.Furthermore, all claims as to the mother, EILEEN MENDEZ, are hereby dismissed and Summary Judgment granted to that portion of Defendant, NEW YORK PRESYBTERIAN HOSPITAL’s motion only.This is the ORDER of the Court.Dated: August 1, 2018
