JAMES JOHN v. Beverly Woodard, et al., Defendants-Appellants.

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Supreme Court, Appellate Division, First Department, New York.

D'Andre JAMES, an infant by his mother and natural guardian, Naiesha JOHN, et al., Plaintiffs-Respondents, v. Andrew CORWIN, M.D., et al., Defendants, Beverly Woodard, et al., Defendants-Appellants.

Decided: June 30, 2005

ANDRIAS, J.P., MARLOW, SULLIVAN, ELLERIN, NARDELLI, JJ. Costello, Shea & Gaffney LLP, New York (Paul E. Blutman of counsel), for appellants. Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for respondents.

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered January 10, 2005, which denied defendants-appellants' motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Plaintiffs' expert's affirmation in opposition is properly based on evidentiary facts in the record, including defendant midwife's deposition testimony and defendant hospital's records, and satisfied plaintiffs' burden of showing the existence of issues of fact as to whether defendants departed from accepted standards of obstetrical care and, if so, thereby substantially contributed to the infant plaintiff's brain damage and other alleged injuries (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324-325, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986];  Lambos v. Weintraub, 246 A.D.2d 356, 357-358, 667 N.Y.S.2d 711 [1998] ).   Such factual issues include, inter alia, whether a caesarean section should have been performed based on the prenatal non-stress test and biophysical profile performed some three weeks before the delivery, the fetal heart monitoring strips taken some two hours before the delivery, and the presence of meconium some 30 minutes before the delivery, and whether the development of seizures during the early neonatal period is indicative of hypoxic ischemic injury sustained during delivery.