RUIZ v. Bronx Lebanon Hospital Center, Defendant–Appellant. (2020)

Order, Supreme Court, Bronx County (Joseph E. Capella, J.), entered on or about July 16, 2019, which, insofar as appealed from, denied that part of the motion of defendant Bronx Lebanon Hospital Center (Bronx Lebanon) for summary judgment dismissing plaintiff's claim that she received negligent treatment at Bronx Lebanon on February 4, 2015, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed.  The Clerk is directed to enter judgment accordingly.

Plaintiff's expert relied on a new theory of liability in opposition to Bronx Lebanon's motion for summary judgment, which was not encompassed in the pleadings (see e.g. Hinson v. Anderson, 159 A.D.3d 494, 73 N.Y.S.3d 148 [1st Dept. 2018]).  Thus, such theory of liability should not have been considered (id.).

In any event, plaintiff's expert failed to raise a triable issue of fact in opposition to Bronx Lebanon's prima facie showing.  The expert failed to address the opinions and conclusions of Bronx Lebanon's expert regarding plaintiff's clinical presentation upon arrival at the hospital on February 4, 2015, at which time fetal monitoring, a sonogram, and a pelvic examination all indicated no fetal distress and that plaintiff was not in labor (see Rotante v New York Presbyt. Hosp.-N.Y. Weill Cornell Med. Ctr., 175 A.D.3d 1142, 1143, 107 N.Y.S.3d 289 [1st Dept. 2019]).  Furthermore, the opinion of plaintiff's expert that, had plaintiff been admitted, monitored, and administered certain medications to accelerate fetal brain and lung growth, the fetus would not have died in utero was conclusory.  Specifically, the expert failed to provide the “requisite nexus between the malpractice allegedly committed and the harm suffered,” which was necessary in view of the medical evidence that a bacteria infection was the cause of the intrauterine fetal death (Foster–Sturrup v. Long, 95 A.D.3d 726, 727–28, 945 N.Y.S.2d 246 [1st Dept. 2012] [internal quotation marks omitted] ).