The following papers numbered 1 to 6 were read on this motion: Paper Number Notice of Motion, Affirmations, and Exhibits A-D 1 Exhibits E-K 2 Exhibits L-N 3 Exhibits O-X 4 Affidavit and Exhibits in Opposition 5 Reply Affirmation 6 DECISION AND ORDER Plaintiffs bring their motion seeking summary judgment on liability in their favor in this medical malpractice action. The facts are as follows: plaintiff Ariela Perez was in labor for approximately 20 hours with her first child when defendant Dr. Pierce suggested that she assist labor by using a vacuum device. Although plaintiff had some questions about the safety of the device, she agreed to its use. Dr. Pierce used the device, and the baby was born safely. The problem is that in the delivery, plaintiff suffered a serious tear. Dr. Pierce purported to suture the tear. However, plaintiff alleges that she has serious physical repercussions from Dr. Pierce’s inadequate repair, despite having had surgery to repair the repair. Plaintiff contends that (1) Dr. Pierce should not have suggested the use of the vacuum device in this instance, since there was no evidence of “maternal exhaustion” such that using a device for assistance was necessary; (2) Dr. Pierce did not disclose to plaintiff all of the risks of the use of the device, including the tear; (3) plaintiff suffered a serious injury as a result of the use of the device, which Dr. Pierce failed to assess and repair properly. In support of their motion, plaintiffs submit the affirmation of a Board-Certified Obstetrician and Gynecologist, Dr. Martin Gubernick. Dr. Gubernick, in a lengthy affirmation, states that “there was absolutely nothing about ARIELA PEREZ’s history, objective findings and her presentation during labor and delivery, other than what is documented by DR. PIERCE as a ‘complaint of exhaustion’ that factored into DR. PIERCE’s decision to offer and use vacuum extraction to deliver ARIELA’s baby.” He goes on to state that “there is no evidence in the documented chart that ARIELA PEREZ was exhibiting maternal exhaustion or had any inability to push effectively at any time before 9:11 p.m.” Dr. Gubernick also states that there is no evidence that Dr. Pierce discussed the risks to plaintiff of using the vacuum, but ‘only discussed the risks to the baby. Finally, Dr. Gubernick opines that Dr. Pierce failed to assess and repair the tear properly, because “it is contrary to the obstetrical surgical standard of care to place only 2 sutures for a ‘through and through’ 3rd degree laceration of the internal and external anal sphincters.” Rather, he states that the “obstetrical surgical standard of care calls for a minimum of 4 interrupted sutures….” “In order to establish a prima facie case of liability in a medical malpractice action, a plaintiff must prove (1) the standard of care in the locality where the treatment occurred, (2) that the defendant breached that standard of care, and (3) that the breach of the standard was the proximate cause of the injury. The plaintiff is required to show that the alleged deviation was a substantial factor in producing the injury.” Zak v. Brookhaven Mem’l Hosp. Med. Ctr., 54 A.D.3d 852, 852-53, 863 N.Y.S.2d 821, 822 (2d Dept. 2008). Here, plaintiffs have made such a prima facie showing. It then falls on defendants to rebut plaintiffs’ prima facie case. In opposition, defendants submit to the Court the affirmation of Dr. John J. Mastrantonio, a Board-Certified Obstetrician and Gynecologist. Dr. Mastrantonio contends that based on “the entire clinical picture,” including “where there is concern for the safety of the baby, it is appropriate to consider methods that may expedite the delivery, including vacuum assistance.” Dr. Mastrantonio states that “Being in labor for 20 hours, it is reasonable for a physician to conclude the patient would have some degree of maternal exhaustion. Dr. Pierce was in the best position to evaluate the effectiveness of maternal pushing.” He concludes that offering plaintiff the option of vacuum assisted delivery was appropriate under the circumstances. This suffices to rebut plaintiffs’ prima facie showing on the issue of maternal exhaustion/whether offering the vacuum device was appropriate. “Summary judgment is not appropriate, in a medical malpractice action where the parties adduce conflicting medical expert opinions.” Sandmann v. Shapiro, 53 A.D.3d 537, 538, 861 N.Y.S.2d 760, 761 (2d Dept. 2008). The jury shall also decide the issue of the adequacy of the disclosure of the risks. It is unclear from these papers exactly what Dr. Pierce did or did not disclose to plaintiff about the risks of the use of the vacuum. With respect to the issue of the repair of the tear, however, the Court finds that Dr. Mastrantonio failed to rebut plaintiffs’ prima facie showing. Dr. Gubernick specifically stated that the standard of care required four stitches in this situation, but Dr. Pierce only used two. Dr. Mastrantonio ignores this finding, stating only that “the precise method of laceration repair is a matter of medical judgment dependent on the location, anatomy and degree of the laceration,” and that Dr. Pierce had the experience to determine the type and manner of suturing. Dr. Mastrantonio does not state that having reviewed the medical records, it is his opinion that two sutures were adequate, and that four were unnecessary. He thus fails to rebut plaintiffs’ prima facie showing that two sutures were inadequate. With respect to all of plaintiffs’ other claims, the Court denies summary judgment. All other issues shall be decided by the jury. The parties are directed to appear for a Settlement Conference in the Settlement Conference Part on March 24, 2020 at 9:15 a.m. in Courtroom 1600. The foregoing constitutes the decision and order of the Court. Dated: February 18, 2020
