Preview
FILED: NEW YORK COUNTY CLERK 04/15/2022 12:30 PM INDEX NO. 805008/2017
NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 04/15/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------------------------------------------X Index No.: 805008/2017
WANDA COLLADO as Parent and Natural Guardian of
A.P. and Infant,
amt)sh
AFFIRMATION
IN OPPOSITION
THE NEW YORK & PRESBYTERIAN HOSPITAL,
Defendant(s).
Christopher Lennon, an attorney admitted to practice before the courts of the State of
New York, affinns the truth of the following:
1. I am associated with The Fitzgerald Law Firm, P.C., attorneys for the plaintiff.
and submit this affirmation in opposition to the motion by the defendant for judgment.
summary
2. As the medical records and deposition transcripts are attached to the motion itself,
Plaintiff will only attach specific pages referenced. The following exhibits are attached:
Exhibit 1 - Emergency Department Nurses Record
Exhibit 2 - Obstetrical Triage Note
Exhibit 3 - Perera EBT p. 36
Exhibit 4 - Perera EBT p. 37
Exhibit 5 - Perera EBT p. 44
Exhibit 6 - Perera EBT p. 57
Exhibit 7 - Perera EBT p. I66
Exhibit 8 - Perera EBT p. 163-165
Exhibit 9 - OB attending note
Exhibit 10 - Perera EBT p. 182
Exhibit 11 - L&D intraoperative note
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Exhibit 12 - OB delivery record
Exhibit 13 - OB delivery record
Exhibit 14 - Perera EBT p. 169
Exhibit 15 - L&D attestation
Exhibit 16 - Clinical summary
Exhibit I7 - Miscellaneous note
nursing
Exhibit 18 - Neonatal Note 5/23/14
Exhibit 19 - Neonatal Note 5/29/14
Exhibit 20 - Neonatal Note 5/30/14
Exhibit 2I - MRI 1/23/15
Exhibit 22 - EEG 9/11/14
As the Defendant has attached full copies of the medical records and deposition transcripts, in
the interest of economy plaintiff has attached only copies of certain specific pages cited.
3. Also submitted herewith is the affirmation of plaintiff's medical expert, Dr. Bruce
Halbride.
4. This is a case sounding in medical malpractice. The relevant facts are more fully
set forth in the medical records, pleadings and the attached medical affidavits; however, to
briefly summarize, infant was born at the defendant hospital on 5/23/14. The patient mother was
admitted with symptoms of preeclampsia and the fetal heart tracing demonstrated late
decelerations. A decision was recorded to proceed with cesarean delivery at 2;20 on 5/23/14;
however, delivery did not occur until two hours later. The infant was born with an Apgar score
of 4 at one minute and experienced seizures in the first hours of life. The infant's condition was
described by the hospital staff as highl y concerning for intracranial pathology. All of the
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aforesaid are medical facts which were recorded in the Defendan't own medical records the
by
hospital staff.
DEFENDANT HAS NOT MET THE APPLICABLE
BURDEN OF PROOF FOR SUMMARY JUDGMENT
5. Defendant has failed to meet the high standard imposed on a party seeking
summary judgment. It is well established that summary judgment is, by its very nature. a drastic
remedy which effectively deprives a party of its day in court, see Henderson v City ofNew York,
A.D.2d (13' (2"d
178 129 Dept 1991); Barclay v Denckla, 182 A.D.2d 658 Dept 1992). issue
fmding, as opposed to issue determination, is sufficient to defeat a motion for summary
(2"d
judgment, Hantz v Fishman, I55 A.D.2d 415 Dept 1989); McKinney v Setteducatti, 183
(2"d
A.D.2d 879 Dept. 1992).
7. As regards issue finding. 1 would note that notwithstanding Defendant's efforts to
convince the Court that the mother could not have had preeclampsia, these opinions are not
supported by the medical facts as recorded in the records. it attempts to persuade the Court that
the late decelerations experienced were of no medical significance when the delivering
obstetrician acknowledges that they should have been recorded as a reason to proceed to
cesarean delivery. Defendant attempts to convince the Court that there was no delay in delivery
when a two hour delay is explicitly documented in the record. Defendant attempts to convince
the Court that the infant suffered no injury when the onset of seizures occurs on the date of birth
and the Defendant's own medical staff describes the infant's condition as highly for
concerning
intracranial pathology. Defendant attempts to convince the Court that there is no interpretation
of the facts under which the infant's injuries can be attributed to hypoxic ischemic injury during
delivery when its own MRI documents changes in the white matter of the brain which may relate
to prior ischemia
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8. In effect, Defendant urges the Court to lend credence onl y to the exculpatory
opinions of the medical experts it has retained to defend it from liability and to ignore the
medical facts documented in its own medical records. Defendant attempts to explain away the
inconvenient medical facts in a meritless attempt to convince this Court that no issues of fact
exists. Incredibly, Defendant uses the opinions of its experts to attempt to discredit and explain
away the medical facts as recorded by its own staff where said facts obstruct the goal of
summary judgment
9. Notwithstanding Defendants effort to avoid certain facts, including the fact that its
own medical staff observed symptoms of preeelampsia, of non-reassuring fetal heart tracing, of
seizures, and of condition highly concerning for intracranial pathology, the applicable legal
party"
standard is that said evidence must be viewed in "the light most favorable to the opposing
in order to determine if a triable issue of fact exists, Robinson v Strong Memorial Hospital, 98
(4*
A.D.2d 976 Dept. 1983). In resolving the instant motion, the evidence offered herein in
opposition must be accepted as true, Cohn v Lionel Corp., 2 I N.Y.2d 559 (1968),
experts'
notwithstanding Defendant opinions that the facts recorded in the record are not facts.
The motion must be decided based on the version of the facts most favorable to the party
opposing same, Soychalski v Meku, 54 A.D.2d 1068 (1976).
10. Given that under the applicable case law, the Court must accept the version of the
facts most favorable to the opponent of summary judgment. The Court must accept that the
mother was preeclamptic, that the fetal heart tracing was non-reassuring, that the delivery was
emergent but was delayed for at least two hours, that the infant was depressed at birth and
suffered seizures and that its physical condition was indicative of intracranial pathology, and the
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opinion of Plaintiff's expen based upon these established medical facts that the infant was
injured as a result of departures from good and accepted standards of care..
1 1. The applicable standard requires that evidence must be viewed in the light most
favorable to the nonmoving party. Caggiano v. Cooling, 92 A.D.3d 634 (2d Dep't 2012). The
non-movant's evidence, furthermore, must be accepted as true, and the non-movant is entitled to
every reasonable inference that can be drawn from the evidence. Denshick v. Community Hous.
Mgmt. Corp., 34 A.D.3d 518, 521 (2d Dep't 2006); Hoovis v. Winthrop Univ. Hosp., 268 A.D.2d
409 (2d Dep't. 2000). Applying this standard, Plaintiff's expert and the cited medical facts
fully refute Defendant's assertions so as to preclude the granting of summary judgment.
RESOLUTION OF THE CREDIBILITY OF THE COMPETING
EXPERT OPINIONS IS PROPERLY THE SUBJECT OF A TRIAL
experts"
12. Resolution of a "battle of the is not properly the domain of a motion for
summary judgment. As the Appellate Division, First Department wrote, "The weight to be
accorded the conflicting testimony of experts is "a matter 'peculiarly within the province of the
jury' "
Torricelli v. Pisacano, 9 A.D.3d 291, 293 (1st Dep't. 2004), leave denied, 3 N.Y.3d 612.
13. The credibility of both lay and expert witnesses. and the accuracy of their
testimony, are not appropriately resolved by summary judgment or other pretrial determination.
Rather, they are matters for the jury. Altman v. Alpha Obstetrics and Gvnecology, P.C., 255
A.D.2d 276 (2d Dep't.), leave denied, 93 N.Y.2d 801 (1999). Where. as here, conflicting expert
opinions are presented, it is the jury's right to accept one expert's opinion and reject that of the
other if it should so choose. Lelekakis v. Kamamis, 41 A.D.3d 662 (2d Dep't. 2007). In this
instance, the conflicting opinions of the expert opinions offered by the two sides on the issues
must be resolved by affording credence to the Plaintiff's interpretation of the evidence.
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Resolving the conflicting expert opinions is not properly the subject of a summary judgment
motion and the motion must therefore be denied.
14. In order to grant this Defendant summary judgment, the Court would have to
accept Defendant premise that the mother did not have preeclampsia, did not have a non-
reassuring fetal heat tracing with late decelerations, that the cesarean section was not delayed for
over two hours, that the infant was not depressed at birth, did not suffer seizures on the first day
of life, did not exhibit a condition consistent with intracranial pathology and white matter
damage consistent with prior ischemic insult, and it would have to accept this premise even
though each and every one of these assertions is explicitly contrary to the medical facts as
recorded in the medical record created by Defendant. Given the facts in this matter and given
the applicable standard of interpreting said facts in the light most favorable to the opponent of
summary judgment; it is submitted that the Court ought not exercise its power to grant summary
judgment and thereby deny the Infant Plaintiff a trial on the merits.
CONCLUSION
15. For the above reasons, the motion for summary judgment by Defendant must be
denied as the Defendant has not established an absence of questions of material fact exist with
regard to whether departures from good and accepted standards of care caused the infant to suffer
injury.
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WHEREFORE, Plaintiffs respectfully request that the motion of the defendant for
summary judgment and that Plaintiffs be granted any such other or further relief that this Court
may deem just and proper.
Dated: Yonkers, New York
April 15, 2021
CHRISTOPHER LENNON, ESQ.
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CERTIFICATE OF COMPLIANCE
I, John M. Daly, an attorney admitted to practice in the State of New York, hereby certify
pursuant to AO/270/2020 that the foregoing Affirmation of Christopher J. Lennon was prepared
on a computer.
Typeface: Times New Roman
Point size: 12
Line spacing: Double
Word count: 1,624, inclusive of headings and footnotes, caption and signature block.
Dated: Yonkers, New York
April 15, 2022
John M. Daly
8 of 8
Preview
FILED: NEW YORK COUNTY CLERK 04/15/2022 12:30 PM INDEX NO. 805008/2017 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 04/15/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------X Index No.: 805008/2017 WANDA COLLADO as Parent and Natural Guardian of A.P. and Infant, amt)sh AFFIRMATION IN OPPOSITION THE NEW YORK & PRESBYTERIAN HOSPITAL, Defendant(s). Christopher Lennon, an attorney admitted to practice before the courts of the State of New York, affinns the truth of the following: 1. I am associated with The Fitzgerald Law Firm, P.C., attorneys for the plaintiff. and submit this affirmation in opposition to the motion by the defendant for judgment. summary 2. As the medical records and deposition transcripts are attached to the motion itself, Plaintiff will only attach specific pages referenced. The following exhibits are attached: Exhibit 1 - Emergency Department Nurses Record Exhibit 2 - Obstetrical Triage Note Exhibit 3 - Perera EBT p. 36 Exhibit 4 - Perera EBT p. 37 Exhibit 5 - Perera EBT p. 44 Exhibit 6 - Perera EBT p. 57 Exhibit 7 - Perera EBT p. I66 Exhibit 8 - Perera EBT p. 163-165 Exhibit 9 - OB attending note Exhibit 10 - Perera EBT p. 182 Exhibit 11 - L&D intraoperative note 1 of 8 FILED: NEW YORK COUNTY CLERK 04/15/2022 12:30 PM INDEX NO. 805008/2017 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 04/15/2022 Exhibit 12 - OB delivery record Exhibit 13 - OB delivery record Exhibit 14 - Perera EBT p. 169 Exhibit 15 - L&D attestation Exhibit 16 - Clinical summary Exhibit I7 - Miscellaneous note nursing Exhibit 18 - Neonatal Note 5/23/14 Exhibit 19 - Neonatal Note 5/29/14 Exhibit 20 - Neonatal Note 5/30/14 Exhibit 2I - MRI 1/23/15 Exhibit 22 - EEG 9/11/14 As the Defendant has attached full copies of the medical records and deposition transcripts, in the interest of economy plaintiff has attached only copies of certain specific pages cited. 3. Also submitted herewith is the affirmation of plaintiff's medical expert, Dr. Bruce Halbride. 4. This is a case sounding in medical malpractice. The relevant facts are more fully set forth in the medical records, pleadings and the attached medical affidavits; however, to briefly summarize, infant was born at the defendant hospital on 5/23/14. The patient mother was admitted with symptoms of preeclampsia and the fetal heart tracing demonstrated late decelerations. A decision was recorded to proceed with cesarean delivery at 2;20 on 5/23/14; however, delivery did not occur until two hours later. The infant was born with an Apgar score of 4 at one minute and experienced seizures in the first hours of life. The infant's condition was described by the hospital staff as highl y concerning for intracranial pathology. All of the 2 of 8 FILED: NEW YORK COUNTY CLERK 04/15/2022 12:30 PM INDEX NO. 805008/2017 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 04/15/2022 aforesaid are medical facts which were recorded in the Defendan't own medical records the by hospital staff. DEFENDANT HAS NOT MET THE APPLICABLE BURDEN OF PROOF FOR SUMMARY JUDGMENT 5. Defendant has failed to meet the high standard imposed on a party seeking summary judgment. It is well established that summary judgment is, by its very nature. a drastic remedy which effectively deprives a party of its day in court, see Henderson v City ofNew York, A.D.2d (13' (2"d 178 129 Dept 1991); Barclay v Denckla, 182 A.D.2d 658 Dept 1992). issue fmding, as opposed to issue determination, is sufficient to defeat a motion for summary (2"d judgment, Hantz v Fishman, I55 A.D.2d 415 Dept 1989); McKinney v Setteducatti, 183 (2"d A.D.2d 879 Dept. 1992). 7. As regards issue finding. 1 would note that notwithstanding Defendant's efforts to convince the Court that the mother could not have had preeclampsia, these opinions are not supported by the medical facts as recorded in the records. it attempts to persuade the Court that the late decelerations experienced were of no medical significance when the delivering obstetrician acknowledges that they should have been recorded as a reason to proceed to cesarean delivery. Defendant attempts to convince the Court that there was no delay in delivery when a two hour delay is explicitly documented in the record. Defendant attempts to convince the Court that the infant suffered no injury when the onset of seizures occurs on the date of birth and the Defendant's own medical staff describes the infant's condition as highly for concerning intracranial pathology. Defendant attempts to convince the Court that there is no interpretation of the facts under which the infant's injuries can be attributed to hypoxic ischemic injury during delivery when its own MRI documents changes in the white matter of the brain which may relate to prior ischemia 3 of 8 FILED: NEW YORK COUNTY CLERK 04/15/2022 12:30 PM INDEX NO. 805008/2017 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 04/15/2022 8. In effect, Defendant urges the Court to lend credence onl y to the exculpatory opinions of the medical experts it has retained to defend it from liability and to ignore the medical facts documented in its own medical records. Defendant attempts to explain away the inconvenient medical facts in a meritless attempt to convince this Court that no issues of fact exists. Incredibly, Defendant uses the opinions of its experts to attempt to discredit and explain away the medical facts as recorded by its own staff where said facts obstruct the goal of summary judgment 9. Notwithstanding Defendants effort to avoid certain facts, including the fact that its own medical staff observed symptoms of preeelampsia, of non-reassuring fetal heart tracing, of seizures, and of condition highly concerning for intracranial pathology, the applicable legal party" standard is that said evidence must be viewed in "the light most favorable to the opposing in order to determine if a triable issue of fact exists, Robinson v Strong Memorial Hospital, 98 (4* A.D.2d 976 Dept. 1983). In resolving the instant motion, the evidence offered herein in opposition must be accepted as true, Cohn v Lionel Corp., 2 I N.Y.2d 559 (1968), experts' notwithstanding Defendant opinions that the facts recorded in the record are not facts. The motion must be decided based on the version of the facts most favorable to the party opposing same, Soychalski v Meku, 54 A.D.2d 1068 (1976). 10. Given that under the applicable case law, the Court must accept the version of the facts most favorable to the opponent of summary judgment. The Court must accept that the mother was preeclamptic, that the fetal heart tracing was non-reassuring, that the delivery was emergent but was delayed for at least two hours, that the infant was depressed at birth and suffered seizures and that its physical condition was indicative of intracranial pathology, and the 4 of 8 FILED: NEW YORK COUNTY CLERK 04/15/2022 12:30 PM INDEX NO. 805008/2017 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 04/15/2022 opinion of Plaintiff's expen based upon these established medical facts that the infant was injured as a result of departures from good and accepted standards of care.. 1 1. The applicable standard requires that evidence must be viewed in the light most favorable to the nonmoving party. Caggiano v. Cooling, 92 A.D.3d 634 (2d Dep't 2012). The non-movant's evidence, furthermore, must be accepted as true, and the non-movant is entitled to every reasonable inference that can be drawn from the evidence. Denshick v. Community Hous. Mgmt. Corp., 34 A.D.3d 518, 521 (2d Dep't 2006); Hoovis v. Winthrop Univ. Hosp., 268 A.D.2d 409 (2d Dep't. 2000). Applying this standard, Plaintiff's expert and the cited medical facts fully refute Defendant's assertions so as to preclude the granting of summary judgment. RESOLUTION OF THE CREDIBILITY OF THE COMPETING EXPERT OPINIONS IS PROPERLY THE SUBJECT OF A TRIAL experts" 12. Resolution of a "battle of the is not properly the domain of a motion for summary judgment. As the Appellate Division, First Department wrote, "The weight to be accorded the conflicting testimony of experts is "a matter 'peculiarly within the province of the jury' " Torricelli v. Pisacano, 9 A.D.3d 291, 293 (1st Dep't. 2004), leave denied, 3 N.Y.3d 612. 13. The credibility of both lay and expert witnesses. and the accuracy of their testimony, are not appropriately resolved by summary judgment or other pretrial determination. Rather, they are matters for the jury. Altman v. Alpha Obstetrics and Gvnecology, P.C., 255 A.D.2d 276 (2d Dep't.), leave denied, 93 N.Y.2d 801 (1999). Where. as here, conflicting expert opinions are presented, it is the jury's right to accept one expert's opinion and reject that of the other if it should so choose. Lelekakis v. Kamamis, 41 A.D.3d 662 (2d Dep't. 2007). In this instance, the conflicting opinions of the expert opinions offered by the two sides on the issues must be resolved by affording credence to the Plaintiff's interpretation of the evidence. 5 of 8 FILED: NEW YORK COUNTY CLERK 04/15/2022 12:30 PM INDEX NO. 805008/2017 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 04/15/2022 Resolving the conflicting expert opinions is not properly the subject of a summary judgment motion and the motion must therefore be denied. 14. In order to grant this Defendant summary judgment, the Court would have to accept Defendant premise that the mother did not have preeclampsia, did not have a non- reassuring fetal heat tracing with late decelerations, that the cesarean section was not delayed for over two hours, that the infant was not depressed at birth, did not suffer seizures on the first day of life, did not exhibit a condition consistent with intracranial pathology and white matter damage consistent with prior ischemic insult, and it would have to accept this premise even though each and every one of these assertions is explicitly contrary to the medical facts as recorded in the medical record created by Defendant. Given the facts in this matter and given the applicable standard of interpreting said facts in the light most favorable to the opponent of summary judgment; it is submitted that the Court ought not exercise its power to grant summary judgment and thereby deny the Infant Plaintiff a trial on the merits. CONCLUSION 15. For the above reasons, the motion for summary judgment by Defendant must be denied as the Defendant has not established an absence of questions of material fact exist with regard to whether departures from good and accepted standards of care caused the infant to suffer injury. 6 of 8 FILED: NEW YORK COUNTY CLERK 04/15/2022 12:30 PM INDEX NO. 805008/2017 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 04/15/2022 WHEREFORE, Plaintiffs respectfully request that the motion of the defendant for summary judgment and that Plaintiffs be granted any such other or further relief that this Court may deem just and proper. Dated: Yonkers, New York April 15, 2021 CHRISTOPHER LENNON, ESQ. 7 of 8 FILED: NEW YORK COUNTY CLERK 04/15/2022 12:30 PM INDEX NO. 805008/2017 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 04/15/2022 CERTIFICATE OF COMPLIANCE I, John M. Daly, an attorney admitted to practice in the State of New York, hereby certify pursuant to AO/270/2020 that the foregoing Affirmation of Christopher J. Lennon was prepared on a computer. Typeface: Times New Roman Point size: 12 Line spacing: Double Word count: 1,624, inclusive of headings and footnotes, caption and signature block. Dated: Yonkers, New York April 15, 2022 John M. Daly 8 of 8