Summary
In Amin v Soliman, 67 AD3d 835, 889 NYS2d 629 (2d Dept 2009), the plaintiffs raised a triable issue of fact as to whether the fetus was stillborn as the infant had no respiratory response, the Apgar score was zero at one, five and ten minutes after birth and the infant died within ten minutes after being removed from a ventilator.
Summary of this case from Waring v. MatalonOpinion
No. 2008-10822.
November 17, 2009.
In an action, inter alia, to recover damages for medical malpractice, etc., the defendants Stella Slade and Jamaica Hospital Medical Center appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (O'Donoghue, J.), dated October 27, 2008, as denied those branches of their motion which were for summary judgment dismissing the first, second, third, and fourth causes of action insofar as asserted against them.
Martin Clearwater Bell LLP, New York, N.Y. (Ellen B. Fishman and Thomas A. Mobilia of counsel), for appellants.
The Jacob D. Fuchsberg Law Firm, LLP, New York, N.Y. (Alan L. Fuchsberg and Carly M. Jannetty of counsel; Alexander Sirkman on the brief), for respondents.
Before: Skelos, J.P., Florio, Balkin and Leventhal, JJ., concur.
Ordered that the order is affirmed insofar as appealed from, with costs.
The appellants established their prima facie entitlement to judgment as a matter of law dismissing the first, second, third, and fourth causes of action insofar as asserted against them ( see Alvarez v Prospect Hosp., 68 NY2d 320, 324), by tendering evidence that the fetus delivered by the plaintiff Ramina Akhter by a cesarean section was born alive, as a heartbeat was generated 15 minutes after the fetus was removed from the womb, and the heartbeat was maintained at more than 100 beats per minute within 22 minutes after the fetus was removed from the womb. In opposition, the plaintiffs raised a triable issue of fact as to whether the fetus was stillborn, as there was no respiratory response and the fetus's Apgar score was zero at 1 minute, 5 minutes, and 10 minutes after the fetus was removed from the womb, the fetus was dependent on a ventilator for the following three weeks, and the fetus was declared deceased within 10 minutes of being removed from the ventilator. Thus, the Supreme Court correctly denied those branches of the motion which were for summary judgment dismissing the first, second, third, and fourth causes of action insofar as asserted against the appellants to recover damages for, inter alia, emotional distress arising from alleged medical malpractice resulting in a stillborn fetus ( see Sheppard-Mobley v King, 4 NY3d 627, 636-637; Broadnax v Gonzalez, 2 NY3d 148, 155; Alvarez v Prospect Hosp., 68 NY2d at 324).
The appellants' remaining contentions are not properly before this Court or are without merit.