BY CINDY v. Regina Fitzgerald, M.D., et al., Defendants. (2024)

Order, Supreme Court, Bronx County (Alicia Gerez, J.), entered July 7, 2023, which, to the extent appealed from as limited by the briefs, granted the motion of defendants Denis T. Sconzo, M.D. and Westchester–Bronx OB/GYN Group, P.C., for summary judgment dismissing the complaint as against Dr. Sconzo, unanimously affirmed, without costs.

In opposition to defendants’ prima facie showing that Dr. Sconzo did not commit medical malpractice in his treatment of plaintiff mother, plaintiffs failed to raise a triable issue of fact.  Plaintiffs’ expert opined that Dr. Sconzo departed from accepted practice in his treatment of the mother by sending her to the hospital for further evaluation and possible delivery, rather than communicating the urgency of the situation and directing that the mother undergo an emergency cesarean section.  However, plaintiffs’ expert's opinion is at odds with the medical records (see A.P. v. Stolar, 178 A.D.3d 483, 483, 111 N.Y.S.3d 543 [1st Dept. 2019]), which reflect that Dr. Sconzo called and texted defendant, Regina Fitzgerald, M.D., at the hospital to apprise her of the mother's status, and then called the labor and delivery unit to alert staff of the mother's arrival when Dr. Fitzgerald did not respond.  According to the records, the mother was placed on a fetal monitor, put on an IV, and underwent bloodwork upon her arrival at the hospital.  Contrary to plaintiff's expert's opinion, nothing in the record suggests that Dr. Sconzo had the authority to order an emergency cesarean section upon the mother's arrival at the hospital.  Thus, the expert's opinion as to Dr. Sconzo's alleged deviations from the standard of care are unsupported, and at times contradicted by the records.  Such an opinion is insufficient to withstand summary judgment as to Dr. Sconzo (see Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 544, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002]).

Plaintiffs’ argument that Dr. Sconzo owed the mother a duty of care after her arrival at defendant New York Presbyterian/Lawrence Hospital (NYPH) to ensure the cesarean section was timely performed is also unavailing.  In determining the extent of a physician's duty, a court considers whether “the physician owes a duty under the circumstances of a particular scenario” (Burtman v. Brown, 97 A.D.3d 156, 162, 945 N.Y.S.2d 673 [1st Dept. 2012]).  Here, Dr. Sconzo neither participated nor was responsible for plaintiff mother's care at NYPH. He did not have any apparent ability to control, direct, or supervise the mother's treatment at NYPH, nor did he ever indicate or cause the mother to believe that he would be meeting or treating her at NYPH (see Huffman v. Linkow Inst. for Advanced Implantology, Reconstructive & Aesthetic Maxillo–Facial Surgery, 35 A.D.3d 214, 216–217, 826 N.Y.S.2d 229 [1st Dept. 2006]).  To the contrary, he transferred care to defendant Dr. Fitzgerald.  Accordingly, Dr. Sconzo owed no duty to plaintiff regarding the care she received at NYPH.