State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 2, 2015 519475 

________________________________

CARTER HOAD, an Infant, by His

Mother and Guardian,

CHARLENE HOAD,

Respondent,

v MEMORANDUM AND ORDER

LAWRENCE A. DOLKART et al.,

Appellants.

________________________________

Calendar Date: February 18, 2015

Before: Peters, P.J., Lahtinen, Garry and Lynch, JJ.

__________

Levene Gouldin & Thompson, LLP, Binghamton (John J. Pollock

of counsel), for Lawrence A. Dolkart, appellant.

Kaufman Borgeest & Ryan, LLP, New York City, and Sayes &

Evans, Elmira, for Arnot Ogden Medical Center, appellant.

Fitzgerald & Fitzgerald, PC, Yonkers (Mitchell Gitten of

counsel), for respondent.

__________

Lynch, J.

Appeal from an order of the Supreme Court (O'Shea, J.),

entered September 23, 2013 in Chemung County, which denied

defendants' motions for summary judgment dismissing the

complaint.

On September 11, 2004, Charlene Hoad, who was in her 29th

week of pregnancy, went to a local emergency room, but was

transferred to defendant Arnot Ogden Medical Center (hereinafter

AOMC) shortly after midnight once it was confirmed that she had a
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premature spontaneous rupture of membranes. Upon arrival at

AOMC, Hoad was examined by defendant Lawrence A. Dolkart, who

placed a fetal heart monitoring (hereinafter FHM) device on her

at approximately 1:00 a.m. Because plaintiff (hereinafter the

infant) was in breech position, Dolkart advised that the infant

would need to be delivered by cesarean section once labor

started. Based on an ultrasound performed at approximately 1:50

a.m., Dolkart determined that labor had not begun, and Hoad was

transferred to the maternity ward. FHM was continued until about

3:10 a.m. At approximately 8:30 a.m., Hoad complained of some

cramping and Dolkart examined her at about 9:23 a.m.; at his

direction, FHM was resumed at 9:40 a.m. At 10:30 a.m., Dolkart

examined Hoad, determined that labor had started and directed

that she be prepared for a cesarean section. An episode of

possible bradycardia was recorded at approximately 10:50 a.m.,

lasting until at least 10:55 a.m. Hoad was transferred to labor

and delivery at 11:00 a.m., and the infant was born at 12:05 p.m. 

Unfortunately, the infant was diagnosed with a brain injury known

as periventricular leukomalacia (hereinafter PVL), which resulted

in cerebral palsy. 

The infant, by Hoad, thereafter commenced this medical

malpractice action against AOMC and Dolkart. By disclosure

pursuant to CPLR 3101 (d) (1), three experts were identified who,

as relevant here, would opine that Dolkart failed to adequately

monitor the infant and Hoad prior to the infant's birth and that

the cesarean section should have been completed more

expeditiously. The complaint alleges that, as a result of these

failures, the infant suffered hypoxic ischemic encephalopathy

(hereinafter HIE) during labor and delivery, which deprived his

brain of blood flow and oxygen and caused the PVL. Defendants

moved for summary judgment dismissing the complaint. Finding

questions of fact, Supreme Court denied the motions, and

defendants now appeal. 

On his motion for summary judgment, Dolkart bore the

initial burden of "present[ing] factual proof . . . establishing

that [he] complied with the accepted standard of care or did not

cause any injury to the [infant]" (Cole v Champlain Val.

Physicians' Hosp. Med. Ctr., 116 AD3d 1283, 1285 [2014]). To

this end, Dolkart submitted his own affidavit wherein he detailed
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the treatment that he provided to Hoad upon her admission to AOMC

and opined that his treatment did not deviate from the applicable

standard of care (see id.). Dolkart also submitted an affidavit

by John T. Nosovitch Jr., a physician certified in obstetrics and

gynecology, who opined that once Hoad's membranes ruptured, the

infant's premature birth was inevitable and Dolkart acted within

the standard of care by attempting to prolong the pregnancy,

limiting vaginal examinations and watching for signs of infection

and labor. Further, according to Nosovitch, as the FHM was

initially unremarkable, it was within the standard of care to

discontinue the FHM and observe Hoad until she started to have

contractions. In sum, Nosovitch opined with detailed commentary

that Dolkart's treatment throughout the labor and delivery was

within the standard of care, and that the claim that the PVL was

caused by a hypoxic event is not supported by the medical

records. He explained that a baby born with HIE would have had

certain manifestations of injury that were not present when the

infant was born. To the contrary, the infant's pH levels were

within normal range, he did not suffer multiorgan system failure,

his Apgar scores were considered to be good and he did not suffer

any seizures. According to Nosovich, these factors indicate that

the infant did not suffer significant oxygen deprivation during

labor and delivery. 

Dolkart also submitted an affidavit by Joseph Maytal, a

pediatric neurologist. Like Nosovitch, Maytal explained that,

with Apgar scores of six and eight at one and five minutes after

birth, respectively, normal pH levels and normal kidney and liver

function, the infant was not born with any evidence of a hypoxic

injury during labor and delivery. Further, Maytal explained

that, from the time the infant was born until he was discharged

from the hospital on October 29, 2004, he showed no signs of

neurological deficits and, based on ultrasound images of his

brain, there was no sign of PVL until October 25, 2004. Maytal

opined that it was "inconceivable" that the infant's condition

was caused by an event that occurred during labor and delivery. 

Instead, he opined that the PVL resulted from his prematurity and

lung immaturity. 

There is no dispute that Supreme Court properly determined

that Dolkart's submissions were sufficient to demonstrate
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entitlement to summary judgment, and that the burden shifted to

the infant to present expert medical evidence establishing both

that Dolkart deviated from the standard of care and that such

deviation was a proximate cause of the infant's injuries (see id.

at 1286; Longtemps v Oliva, 110 AD3d 1316, 1318 [2013]). To this

end, the infant submitted an affidavit from an obstetrician,

Bruce Halbridge, and affirmations by Daniel Adler, a pediatric

neurologist, and J. Robert Kirkwood, a neuroradiologist. 

According to Kirkwood, PVL can be caused by prematurity or

impaired blood flow in a preterm fetus that leads to ischemia

within the brain. Kirkwood opined that the evidence of brain

edema shown in the September 13, 2004 ultrasound images of the

infant's brain was the initial appearance of the severe PVL

discovered on October 27, 2004. According to Kirkwood, with this 

evidence of edema that did not change appreciably on the

ultrasound images obtained on September 16, 2004 and September

23, 2004, and the absence of hemorrhage, the ischemic event

occurred while the infant was in utero and the PVL was not the

result of postbirth respiratory distress due to his prematurity. 

For his part, Adler specifically refuted Dolkart's claim that any

hypoxic or ischemic injury during labor and delivery was belied

by the infant's condition at birth, explaining that premature

babies without mature cerebrovascular systems – like the infant –

have "low and slow blood flow" in the brain, such that any degree

of cerebral hypoxia could injure the central nervous system

before it would affect pH levels and Apgar scores or cause organ

failure. 

With reference to the medical records, Halbridge opined

that Dolkart deviated from the standard of care by failing to

provide continuous FHM, by failing to recognize that the FHM

indicated an "ischemic insult" to the infant's brain and by

failing to order an immediate cesarean section. In Halbridge's

view, Hoad would not necessarily have felt contractions and,

without FHM, it was not possible to tell when labor actually

began. He explained that, when Dolkart ordered the cesarean

section at 10:30 a.m., because Hoad's cervix was already dilated

three to four centimeters, it was probable that she had been in

labor for more than two hours. Halbridge reasoned that Dolkart's

failure to order continuous FHM was inconsistent with his plan to

deliver the infant promptly once labor began. 
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As to causation, Halbridge explained that an episode of

bradycardia was recorded at 10:50 a.m., lasting until at least

10:55 a.m.1 With reference to both Kirkwood's assessment of the

infant's brain ultrasounds and his response to resuscitation

after he was born, Halbridge specifically refuted Dolkart's claim

that the PVL was caused by prematurity. Rather, he opined that

it was the bradycardia event and the consequent loss of blood

flow to the infant's brain that caused an ischemic injury that

led to the development of the infant's PVL. Halbridge's basic

premise was that, had Dolkart determined through continuous FHM

that Hoad was in labor two hours earlier and performed the

cesarean section on an emergent basis, the infant would have been

born well in advance of the bradycardia event, which he

attributed to compression of the umbilical cord.

In our view, Supreme Court properly denied Dolkart's motion

for summary judgment. Here, the infant's expert proof is not

limited to "[g]eneral allegations of medical malpractice, merely

conclusory and unsupported by competent evidence tending to

establish the essential elements of medical malpractice" (Carter

v Tana, 68 AD3d 1577, 1580 [2009] [internal quotation marks and

citation omitted]). Rather, his experts base their opinions on

the medical records and treatment that was provided to the infant

and Hoad. Viewing the evidence in the light most favorable to

the infant, we agree with Supreme Court's determination that

there were triable issues of fact with regard to whether Dolkart

deviated from the standard of care and whether any such deviation

was a proximate cause of the infant's PVL and consequent cerebral

palsy (see Cole v Champlain Val. Physicians' Hosp. Med. Ctr., 116

AD3d at 1287-1288; Doucett v Strominger, 112 AD3d 1030, 1033

[2013]; Longtemps v Oliva, 110 AD3d at 1318; Carter v Tana, 68

AD3d at 1579-1580). 

Turning to the motion by AOMC, generally, a hospital is not

liable for the negligence of independent physicians except on a

theory of ostensible or apparent agency (see Hill v St. Clare's

1 Halbridge explained that the tracing was discontinued

until 11:02 a.m., such that the full extent of the bradycardia

was between 5 and 12 minutes.
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Hosp., 67 NY2d 72, 79 [1986]; Friedland v Vassar Bros. Med. Ctr.,

119 AD3d 1183, 1184-1185 [2014]). Put differently, a hospital

may be liable "where the hospital's words or conduct communicated

to a third-party patient give rise to the appearance and belief

that the agent-independent physician possesses authority to act

on behalf of the hospital" (St. Andrews v Scalia, 51 AD3d 1260,

1261-1262 [2008]). As the proponent of summary judgment, AOMC

"bore the initial burden of establishing that [Hoad] sought care

from a specific physician rather than from [AOMC] generally"

(Friedland v Vassar Bros. Med. Ctr., 119 AD3d at 1186). Here,

AOMC's Vice President of Medical Affairs submitted an affidavit

wherein he explained that Dolkart was not an employee, but a

tenant with admitting privileges at AOMC. The record confirms

that when Hoad was transferred from the emergency room, she

consented to a transfer into Dolkart's care at AOMC, not to AOMC

generally. In response, no facts or admissible evidence were

presented to establish that Hoad reasonably believed that Dolkart

was AOMC's employee. We therefore discern no basis for imposing

liability based upon a theory of ostensible agency (see King v

Mitchell, 31 AD3d 958, 959-961 [2006]). 

We further find no basis for the infant's claims against

AOMC based on the actions of its professional staff. Generally,

a hospital is insulated from liability "when its professional

staff follows the orders of private physicians selected by the

patient" (Nagengast v Samaritan Hosp., 211 AD2d 878, 880 [1995]

[internal quotation marks and citation omitted; see Toth v

Community Hosp. at Glen Cove, 22 NY2d 255, 265 [1968]). An

exception to this general rule exists "where the hospital staff

knows that the doctor's orders are so clearly contraindicated by

normal practice that ordinary prudence requires inquiry into the

correctness of the orders" (Toth v Community Hosp. at Glen Cove,

22 NY2d at 265 n 3; see Trifiletti v Hee-Young Cheon-Lee, ___

AD3d ___, ___, 2015 NY Slip Op 01856, *1 [2015]). Here, AOMC met

its burden through the submission of an affirmation by Sara

Jordan, an obstetrician. Jordan opined that there was no

indication that continuous FHM was necessary from 3:10 a.m. to 

9:23 a.m., and that the nursing staff properly followed Dolkart's

orders, none of which was clearly contraindicated. While

Halbridge stated that Dolkart should have continued FHM, the

infant offered no expert proof that any of Dolkart's orders were
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so clearly contraindicated as to require AOMC's professional

staff to question his orders – and the infant's counsel conceded

as much at oral argument. Accordingly, we find that Supreme

Court should have granted AOMC's motion for summary judgment

dismissing the complaint against AOMC (see Nagengast v Samaritan

Hosp., 211 AD2d at 880-881). 

Peters, P.J., Lahtinen and Garry, JJ., concur.

ORDERED that the order is modified, on the law, without

costs, by reversing so much thereof as denied the motion of

defendant Arnot Ogden Medical Center for summary judgment; said

motion granted, summary judgment awarded to said defendant and

complaint dismissed against it; and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court