Lewis v. Capalbo
2001 WL 83417 (N.Y.A.D. 1 Dept.)
Satira C. Lewis, etc., et al., Plaintiffs-Appellants,
v.
Andrea Capalbo, M.D., Defendant-Respondent, Beth Israel Medical Center,
Defendant.
2103
Supreme Court, Appellate Division, First Department, New York
Decided on February 1, 2001
Rosenberger, J.P., Ellerin, Lerner, Friedman JJ.
APPEARANCES OF COUNSEL
Morton Alpert
Richard W. Nicholson
| PER CURIAM OPINION |
Order, Supreme Court, New York County (Karla Moskowitz, J.), entered on or about August 18, 1999,
which granted the motion for renewal by defendant Andrea Capalbo, M.D., and upon renewal, granted
summary judgment dismissing the complaint against her, unanimously modified, on the law, to the
extent of denying summary judgment and reinstating the complaint, and otherwise affirmed, without costs.
Plaintiff, Paulette S. Lewis, on behalf of her infant daughter Satira, and individually, brought this action
alleging medical malpractice committed by defendant hospital and defendant Andrea Capalbo, M.D.
during the birth of Satira. Dr. Capalbo was one of five obstetricians at the Manhattan Medical Group also
known as the Yorkville HIP Center (“HIP Center”), which Ms. Lewis visited for prenatal care numerous
times a few months near the end of her third trimester.
On the day of delivery, August 4, 1986, at 4:30 p.m., Dr. Capalbo, the HIP Center attending physician on
call, examined Ms. Lewis, but left the hospital afterwards and had no further contact with her. Although
Ms. Lewis was placed on a fetal monitor, according to her testimony she began the labor process on her
own until the baby’s head had partially traveled outside the birth canal and she was holding it on the
palm of one of her hands. At this point, her husband ran out and called in an unidentified doctor standing
in the hallway who, along with several nurses, completed the delivery.
Satira was delivered at 4:55 A.M. on August 5, 1986, weighing five pounds six ounces with an APGAR
score of eight at one minute and an APGAR score of nine at five minutes (scores range from one to 10
and a number above seven is normal). However, in the subcategory of respiratory effort, Satira received
an APGAR score of one at one minute and two (changed from one) at five minutes, and in the category
of skin color, an APGAR score of one both after one minute and after five minutes (scores for
subcategories range from zero to two, and a score of one signifies an irregularity, while a score of two is normal).
Despite the APGAR score of two after five minutes for respiratory effort, it is undisputed that a short time
after her birth Satira was admitted to the neonatal intensive care unit with serious respiratory difficulties
where she remained for 12 days until her discharge, the first four of which she was in a ventilator.
Satira’s newborn medical records are incomplete. She currently suffers from seizure disorders and
cognitive and developmental problems that will require lifelong medical care. Dr. Capalbo moved for
summary judgment dismissing the complaint against her, arguing that she had not delivered Satira and
that Ms. Lewis’s prenatal care was within acceptable standards of medical care. The IAS court initially
denied the motion because the medical expert’s name and signature were redacted. On renewal and
upon submission of an unredacted medical affidavit, the motion was granted on the grounds that Dr.
Capalbo did not owe a duty to monitor Ms. Lewis personally during Satira’s birth and that Satira’s injuries
were not the result of an independent act or omission by Dr. Capalbo. For the reasons stated below, we disagree.
As a preliminary matter, the IAS court exercised its discretion appropriately in permitting Dr. Capalbo to
renew her motion for summary judgment upon an unredacted medical expert affidavit in the interest of
justice (see generally, Petito v Verrazano Contracting Co., 246 AD2d 636).
It is well established that a doctor who undertakes to examine and treat a patient (thus creating a doctor-patient relationship) and then abandons the patient may be held liable for medical malpractice (O’Neill v
Montefiore Hospital, 11 AD2d 132; Heraud v Weissman,
– A2d -, 714 NYS2d 476). In this case, there are
triable issues of fact as to whether Dr. Capalbo was Ms. Lewis’s doctor and whether she departed from
good medical practice by allegedly abandoning Ms. Lewis after admitting her to the hospital during the
early stages of labor.
Dr. Capalbo argues that there was no doctor-patient relationship between her and Ms. Lewis because
she only saw Ms. Lewis once at the HIP Center and neither Ms. Lewis nor Ms. Lewis’s husband
attempted to contact her prior to Satira’s delivery. However, Ms. Lewis testified in her deposition that she
was told that Dr. Capalbo would be her attending physician and the one who would deliver her baby
(compare, Kleinert v Begum, 144 AD2d 645 [no prior relationship between doctor and patient other than
examination two hours prior to the baby’s delivery]). Dr. Capalbo, in fact, was the attending physician
who examined Ms. Lewis when she was admitted to Beth Israel in the early stages of labor. Although Dr.
Capalbo was not in the hospital at Satira’s delivery, she signed Ms. Lewis’s labor and delivery chart as
well as her discharge forms certifying that the matter of Ms. Lewis’s treatment was “cleared for billing.”
Thus, a jury could reasonably conclude that Dr. Capalbo was Ms. Lewis’s doctor.
Dr. Capalbo does not dispute that she left the hospital after examining Ms. Lewis and had no further
contact with her. Instead, she argues that she did not have a duty to continually monitor Ms. Lewis and
thus did not abandon her because the admission and medical authorization form Ms. Lewis signed
stated that the delivery and related care could be provided by “associates or assistants” of Beth Israel
Medical Center of Dr. Capalbo’s choice. The record, however, contains nothing to indicate that Dr.
Capalbo affirmatively transferred the care of Ms. Lewis to the two doctors whose names, in addition to
Dr. Capalbo’s, appear in the Labor and Delivery Summary form (even though neither of them
participated in Satira’s delivery according to the testimony of Ms. Lewis). Dr. Capalbo did not inform Ms.
Lewis that the two doctors would be monitoring her after the initial examination took place. In addition,
there is nothing in the record to indicate that the two doctors were associates or assistants of Dr. Capalbo.
As to proximate cause, the affidavit of plaintiffs’ pediatric neurologist expert, Dr. Daniel G. Adler, stated
that it was his impression that Satira suffered from, among other things, “newborn respiratory distress,”
“seizure disorder,” and “language-based learning disability,” which resulted from “a significantly
abnormal newborn interval.” Dr. Adler based his opinion, among other things, on a review of Satira’s
labor and delivery records, her billing records, and a personal examination. Dr. Adler’s affirmation was,
therefore, specific and based on the record (see
Romano v Stanley
90 NY2d 444).
Plaintiffs’ obstetrics expert reviewed Satira’s labor and delivery records as well as Dr. Adler’s report in
concluding that Satira’s condition was probably due to hypoxia (deficient oxygenation of the blood).
According to the expert, had Dr. Capalbo monitored Ms. Lewis’s progress, hypoxia could have been
avoided or significantly minimized.
The experts’ affidavits in conjunction with the lack of fetal monitoring from 3:00 A.M. to 5:00 A.M., along
with Ms. Lewis’s undisputed testimony that the baby was traveling down the birth canal, that the baby
stopped and that she was holding the baby’s head in her hand before any physician attended to the
delivery, raise triable issues of fact regarding Dr. Capalbo’s negligence in failing to attend the delivery of
Satira and whether her absence caused Satira’s injuries.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE
DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 1, 2001
N.Y.A.D. 1 Dept. 2001.
Lewis v Capalbo
END OF DOCUMENT