                          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.
                              -6-                519475

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
                              -7-                  519475

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
