The Supreme Court of the State of New York Appellate Division, Fourth Judicial Department (“New York Appellate Court”) held in its Memorandum and Order entered on June 7, 2019: “We reject plaintiffs’ contention that the affidavit of their expert raised triable issues of fact sufficient to defeat defendants’ motion. “It is well settled that ‘[g]eneral allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat [a] defendant physician’s summary judgment motion’ ” … Here, plaintiffs offered, as the sole evidence to defeat defendants’ motion for summary judgment, the affidavit of an anesthesiologist who opined that defendant deviated from the standard of care by, inter alia, delaying the administration of anesthesia. Inasmuch as the expert’s affidavit contains allegations that are conclusory and “unsupported by the medical evidence in the record before us” … and his ultimate assertions are “ ‘unsupported by any evidentiary foundation’ ” … we conclude that his opinion “ ‘should be given no probative force and is insufficient to withstand summary judgment’ ”.”
The infant plaintiff and her mother commenced their New York medical malpractice lawsuit seeking damages based on allegations that they sustained injuries after the defendant anesthesiologist and the defendant anesthesia practice negligently failed to be present and available to timely render anesthesia care for the performance of an obstetrical delivery, and that the defendants failed to obtain the plaintiff’s informed consent.
The New York Appellate Court held that the defendants established as a matter of law that they did not depart from the accepted standard of care by submitting the affidavit of the defendant, which addressed each of the specific factual claims of negligence raised in the plaintiffs’ bill of particulars and was detailed, specific, and factual in nature: the defendant stated that he did not delay the delivery of the infant plaintiff by being unavailable; did not fail to prepare for a timely cesarean section; did not provide ineffective or untimely anesthesia; did not delay the plaintiff’s cesarean section; did not fail to properly respond to an obstetrical emergency; and did not fail to properly monitor, provide and/or timely administer adequate oxygen. The defendant further averred that, because he was not involved in supervising ancillary and junior staff, he could not have been negligent in failing to do so.
The New York Appellate Court held: “Thus, defendant’s affidavit, combined with his deposition testimony and the accompanying medical records submitted in support of the motion, provides a thorough summary of defendant’s conduct, and provides his opinion, within a reasonable degree of medical certainty, that defendants did not “deviate and/or depart[ ] during [their] care and treatment of plaintiff[ ] . . . during her labor and delivery of [the infant plaintiff].” We therefore conclude that defendants established their entitlement to judgment as a matter of law.”
Informed Consent Issue
The New York Appellate Court stated that the plaintiffs contend that the defendant’s deposition testimony established that he obtained consent from the plaintiff after the administration of the spinal anesthesia, and that the defendant failed to establish that the delay in obtaining the plaintiff’s consent comported with the standard of care applicable to anesthesiologists. The New York Appellate Court concluded, however, that the uncontroverted deposition testimony and the plaintiff’s certified medical records established as a matter of law that the defendant obtained the plaintiff’s verbal consent for the spinal anesthesia at 2:20 p.m., when he met with her in the labor room before she was moved into the operating room and before the defendant administered the anesthesia. The defendant testified that, when he obtained the plaintiff’s verbal consent, he did not have the written consent form with him. As a result, the plaintiff did not sign the form until 3:10 p.m., after the administration of the spinal anesthesia in the operating room.
The New York Appellate Court stated that although a signed consent form is not necessarily required where, as here, the physician providing the treatment in a medical malpractice action submits testimonial evidence that the physician obtained the patient’s verbal consent to perform the procedure (compare Public Health Law § 2805-d, with § 2442), “we note that defendant obtained both verbal and written consent from plaintiff. We further conclude that plaintiffs failed to raise a triable issue of fact with respect to the alleged delay in obtaining plaintiff’s informed consent.”
Source Hope A.L. v. Unity Hospital of Rochester, 1466 CA 18-01177.
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