S.U., M.A., M.U., Plaintiff, v. JOHN DOES 10 ABC CORPORATIONS 10

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Supreme Court, New York County, New York.

S.U., M.A., M.U., Plaintiff, v. New York University Langone Medical Center, JOHN DOES 1-10, ABC CORPORATIONS 1-10, Defendant.

805306/2013

Decided: April 07, 2021

The following e-filed documents, listed by NYSCEF document number (Motion 007) 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 227, 228, 229, 230, 231

were read on this motion to/forMISCELLANEOUS.

Defendant New York University Langone Medical Center ("NYU" and/or "Defendant") moves this Court for an Order holding that the Infant-Plaintiff S.U. ("S.U." or "Infant-Plaintiff") is a "qualified plaintiff" who has suffered a "birth-related neurological injury" under Public Health Law § 2999-h and is therefore eligible for enrollment in the New York State Medical Indemnity Fund ("the Fund" or "the MIF"). The Court hereby grants the Motion.

This Action involves allegations of medical malpractice and negligence regarding the counseling, evaluation and treatment of feeding problems of S.U., who was born at NYU in 2011. S.U. was born a full term healthy male baby, weighing 6 lbs. 1 ounce with Apgar scores of 4, 9 and 9 at one, five and ten minutes, respectively. S.U.'s Mother, Plaintiff M.A. ("M.A.") testified that she wanted to breastfeed her son but needed the nurses to help get S.U. to latch on while breastfeeding. M.A. testified she requested formula supplementation during S.U.'s two-night stay in the newborn nursery. M.A. declined to attend a breastfeeding class and testified she was still having trouble getting S.U. to latch on when she was discharged from NYU. According to M.A., she was not taught how to express milk or about using a breast pump at the time of discharge.1 M.A. testified that while at NYU, S.U. was "very alert" but had dry lips. S.U.'s father, Plaintiff M.U. ("M.U."), testified that he noticed S.U.'s dry lips on the morning of March 1st before S.U. and M.A. were discharged from the hospital. The record also contains photographs of S.U. with dry and peeling lips prior to his discharge.

After M.A. and S.U. were discharged from NYU on March 1st at approximately 11 AM, M.A. breastfed S.U. "for a little" after he began crying and became uncontrollable. S.U. calmed down and fell asleep after M.U. gave him a pacifier. M.A. and M.U. then drove for an hour with S.U. to visit a friend's house for lunch. S.U. did not eat during this visit and slept for most of the time. After Plaintiffs arrived back home at 3 PM, M.A. breastfed S.U. for fifteen minutes before they fell asleep. When S.U. woke from his nap, M.A. observed "red powdery stuff" in his diaper and M.U. put some water on S.U.'s lips after he noticed that they were dry.

M.A. then called NYU and requested to speak to Krista LaMacchia, R.N. ("Nurse LaMacchia"), who discharged S.U. from NYU earlier that morning.2 M.A. testified that Nurse LaMacchia stated "oh that's concentrated urine, like making a sounds like it is no big deal" and that "if I was concerned I should call my pediatrician" before hanging up. M.A. did not contact the pediatrician and instead called her mother-in-law, who reassured her that it was concentrated urine and that such was common during the first days of nursing. M.A. testified that she kept trying to feed S.U. later that afternoon, but S.U. was crying and was not latching on. That evening, M.U. and M.A. traveled to M.U.'s mother's house in New Jersey, as previously planned, to stay there for three weeks for help with S.U. M.A.'s mother-in-law's house was two hours away and M.A. testified that she tried to feed S.U. on the way there prior to arriving at midnight. M.A. also testified that she kept trying to feed S.U. between 2 AM and 8 AM, but he was not latching on well. S.U. also felt cold, but continued to have wet diapers.

M.A. took S.U. to the pediatrician the next day, March 2, 2011, at approximately 12 PM. The pediatrician found S.U. to be severely dehydrated upon examination and called an ambulance to take him to New Jersey Shore Medical Center, where S.U. remained for seven days. According to Dr. Richard Sultan, S.U.'s treating physician at New Jersey Shore Medical Center, S.U. suffered "diffuse cytotoxic edema" due to severe acute dehydration.

Plaintiffs subsequently commenced this Action against NYU, alleging S.U. suffered brain injuries, blindness and developmental delays due to NYU's deviation from the accepted standards of nursing and lactation consultation care. Plaintiffs argue that NYU negligently failed to appropriately calculate, treat, counsel and refer M.A. and S.U. for appropriate care and treatment for feeding problems, inadequate oral intake, and signs and symptoms of dehydration prior to and after S.U.'s discharge from the hospital. According to Plaintiffs, NYU's staff failed to follow M.A. and M.U.'s specific instructions that S.U. be given adequate formula supplementation while in the nursey and actively discouraged them from using formula supplementation upon discharging S.U. Plaintiffs further sought to recover damages for NYU's failure to provide M.U. and M.A. with adequate information about the risks of exclusive breastfeeding, including dehydration, and benefits of formula supplementation. Plaintiffs allege that due to NYU's departures, S.U. suffers from brain injuries, blindness and development delays.

The Honorable Joan A. Madden previously denied NYU's motion for summary judgment in a decision and order dated January 6, 2020. ("Summary Judgment Decision").3 In support of its summary judgment motion, Defendant NYU submitted the expert affidavits of Nurse Loraine O'Neil ("Nurse O'Neill"), a postpartum nurse, and neonatologist Dr. Lance Parton ("Dr. Parton"), who both found that NYU did not depart from the standard of care or cause S.U.'s injuries. Dr. Parton and Nurse O'Neill opined that S.U. received an adequate amount of oral intake via breastfeeding and formula supplementation and that he did not suffer from dehydration during the birth admission. They further found that S.U. did not exhibit signs of dehydration during his admission at NYU, such as dry diapers, lack of tears or sunken fontanelles.4 NYU argued that S.U.'s injuries were caused by his parent's failure to adequately feed him after being discharged from the hospital, and not by the actions of its employees.

In opposition to NYU's summary judgment motion, Plaintiff submitted the affidavits of Dr. Jessica Madden, M.D. ("Dr. Madden") and registered nurse Liesel Sloan ("Nurse Sloan").5 Dr. Madden represented that NYU failed to confirm that M.A. had adequate milk production and refer her to a pediatrician or lactation consultant. According to Dr. Madden, NYU violated accepted feeding practices by grossly underfeeding S.U. during his admission and Nurse LaMacchia should have addressed S.U.'s reduced voids and stool. Dr. Madden opined that NYU's nursing staff failed to appreciate or react to S.U.'s dry lips, which indicated that he had a fluid problem, and stated that the presence of the "baby's obviously peeling and dry lips [was] shown in the parents' discharge photo." According to Dr. Madden, "the presence of dry lips only is abnormal and an indicator that there is a fluid issue with the patient, as compared to a patient who presents with dry skin everywhere." Dr. Madden found that the nursing staff deviated from accepted standards of nursing care by failing to respond to the signals of inadequate voids and peeling lips.6 Dr. Madden opined that these departures were a proximate and substantial contributing cause of the infant plaintiff's severe dehydration induced hypoglycemia and cytotoxic brain injuries, developmental delays and blindness.

Nurse Sloan also opined that the NYU staff violated accepted standards of formula feeding and supplementation during S.U.'s admission and ignored "red flags" about his inadequate intake, including S.U.'s decrease of minimal voids between Day 1 and Day 2.7 According to Nurse Sloan, NYU's nursing staff overlooked significant signs of S.U.'s dehydration upon discharge, including his dry, peeling lips. Nurse Sloan opined that S.U. received inadequate oral intake and that dehydration began to occur during the 47 hours he was admitted to NYU Hospital from February 27, 2011 through March 1, 2011.

In the Summary Judgment Decision, Judge Madden found that while NYU made its prima facie showing of entitlement to summary judgment, Plaintiffs sufficiently rebutted such showing based upon the affidavits of Dr. Madden and Nurse Sloan. Specifically, Judge Madden found that Plaintiffs showed an issue of fact existed as to whether NYU departed from the standards of nursing and lactation consulting care,

including in failing to evaluate, care and counsel S.U. for feeding problems, in failing toprovide adequate formula supplementation, in failing to recognize and treat S.U. forsigns of dehydration prior to discharge from the hospital, including inadequate voidsand dry lips, and upon discharge, discouraging formula supplementation and failing toprovide S.U.'s parents with adequate information about the risks of exclusively breastfeeding, and the benefits of supplementation by formula and/or by expressing or pumping breastmilk, and after discharge, upon receiving a telephone call from S.U.'smother, NYU's employee Nurse LaMacchia failed to understand the significance of crystalized urine in S.U.'s diaper as a cumulative sign of dehydration and departed from standard of nursing care in failing to seek emergent help for S.U.

Judge Madden further found that Dr. Madden's opinion that such departures were a proximate and substantial contributing cause of S.U.'s injuries was sufficient to raise an issue of fact as to causation. Judge Madden noted in the Summary Judgment Decision that the opinions of Plaintiffs' experts were adequately supported by the record, including evidence that S.U. had a single wet diaper during the 22 hours before discharge and that he had dry and peeling lips on the date of discharge. Based upon such findings, Judge Madden denied NYU's motion for summary judgment, except as to lack of informed consent and negligent hiring.

Defendant NYU's Motion to Deem S.U. a "Qualified Plaintiff"

In the instant Motion, NYU currently seeks to have S.U. deemed a "qualified plaintiff" under the Fund. According to NYU, S.U.'s alleged injuries took place during the delivery admission and therefore falls squarely within the definition of "birth-related neurological injury" under Public Health Law § 2999-h(1), which provides the following definition:

an injury to the brain or spinal cord of a live infant caused by the deprivation of oxygen or mechanical injury occurring in the course of labor, delivery or resuscitation, or by other medical services provided or not provided during delivery admission, that rendered the infant with a permanent and substantial motor impairment or with a developmental disability." (Public Health Law § 2999-h [1] [eff Feb. 14, 2017]).

NYU argues that based upon the plain language of the statute and the positions of Plaintiffs' own experts, S.U. should be deemed a "qualified plaintiff" under the statute. NYU states that Dr. Madden and Nurse Sloan opined that S.U. suffered injury during his delivery admission after NYU failed to properly feed, hydrate and evaluate him and that his dehydration progressed to severe hypoglycemia and cytotoxic brain damage less than 24 hours later. NYU highlights Dr. Madden's statements regarding the discharge photos that show S.U. obviously had dry and peeling lips and that such is an abnormal condition that indicates the presence of a fluid issue. Therefore, since Plaintiffs allege that S.U. was dehydrated and suffering from intake insufficiency prior to his discharge, NYU maintains that S.U. allegedly suffered a "birth-related neurological injury" and should be enrolled in the Fund if Plaintiffs succeed at trial.

According to NYU, the plain language of the statute, as well as the principles of statutory construction, necessitate that the statute includes injuries beyond "obstetrical injuries" caused by deprivation of oxygen or mechanical injury and extends to injuries caused by any number of services "provided or not provided" during the delivery admission. NYU also argues that any distinguishment between "delivery admission" and "post-partum admission" are artificial and contrived, since this was a single continuous admission from the time M.A. was admitted in labor to when she and S.U. were discharged on March 1, 2011. Finally, NYU notes that S.U. will be advantaged by being enrolled in the Fund and states that the Fund pays at a higher rate than Medicare/Medicaid.

Plaintiffs oppose NYU's motion, arguing that S.U. is not a "qualified plaintiff" under the Fund based on the statute's express language, legislative history and implementing regulations. Plaintiffs maintain that S.U.'s injury did not occur due to an obstetrical mishap or during "labor, delivery, resuscitation, or...delivery admission" as defined in the implementing regulations. Specifically, Plaintiffs note that "delivery admission" is defined as the "admission for the specific purpose of giving birth." 10 CRR-NY-69.10. Plaintiffs argue that such definition "precludes the post-birth, non-obstetric 'newborn' admission which is where and when the negligence is alleged to have occurred but entirely precedes the injury which occurred after discharge." Plaintiffs further argue that their experts confirm that neither the alleged malpractice nor the injuries were claimed to have occurred during the "delivery admission." Plaintiffs also assert that NYU's experts conceded that the injury at issue did not occur during the delivery admission or newborn admission, but after S.U. was discharged. In their opposition papers, Plaintiffs claim that while there are no advantages to the Fund, there are serious potential financial and administrative difficulties with the Fund that could be detrimental to S.U.'s wellbeing. According to Plaintiffs, NYU has failed to provide a reason why it is in the best interest of S.U. to qualify for the Fund, rather than to continue receiving Medicaid benefits that he has received for approximately nine years.

DISCUSSION

Pursuant to NY Public Health Law § 2999-g, the Fund was first created in 2011 "to provide a funding source for future health care costs associated with birth-related neurological injuries, in order to reduce premium costs for medical malpractice insurance coverage." As noted by the Court in Mendez v. New York & Presbyt. Hosp., Prior to the enactment of the statute, insurers or self-insured medical providers customarily settled obstetrical malpractice actions, including claims for future medical expenses, with up-front lump-sum cash. This required prepaying for future medical expenses with the obvious shortcoming that, if a child died sooner than expected, or required a level of future care less than projected at the time of the settlement, unspent or surplus funds went to the child's estate or for nonmedical uses rather than being returned to the insurer or medical provider. The Fund eliminates this scenario by paying only for those services actually utilized, a method that should significantly reduce the cost of providing future medical care to qualified plaintiffs. Mendez ex rel. Mendez v New York and Presbyt. Hosp., 34 Misc 3d 735, 737 [Sup Ct 2011].

To be eligible for enrollment in the fund, a plaintiff must be deemed "qualified", which is defined as every plaintiff or claimant who (i) has been found by a jury or court to have sustained a birth-related neurological injury as the result of medical malpractice, or (ii) has sustained a birth-related neurological injury as the result of alleged medical malpractice, and has settled his or her lawsuit or claim thereof; and (iii) has been ordered to be enrolled in the fund by a court in New York State. (See Public Health Law § 2999-h(4); Matter of K.I. ex rel. Azam v. Vullo, 57 Misc 3d 244, 247 [Sup Ct 2017]). Under the previous version of Public Health Law § 2999-h(1), which was enacted in 2011, "birth-related neurological injury" was defined as

"an injury to the brain or spinal cord of a live infant caused by the deprivation of oxygen or mechanical injury occurring in the course of labor, delivery or resuscitation or by othermedical services provided or not provided during delivery admission that rendered theinfant with a permanent and substantial motor impairment or with a developmentaldisability." (Public Health Law § 2999-h [former (1)] [prior version eff Apr. 1, 2011 to Feb. 13, 2017].)

In 2017, the New York legislature amended the statute and the Assembly noted in its Legislative Memorandum that

"[t]he Medical Indemnity Fund (MIF) was designed to ensure that children with birth-related neurological injuries are able to have their medical needs met, and access services that they need to improve their quality of life. In furtherance of that goal, the bill that created chapter 517 of the laws of 2016 as well this bill make changes to the MIF to allow children to better access such services." (Assembly Mem in Support, L 2017, ch 4,2017 McKinney's Session Law News of NY, No. 1 at A-20). Matter of K.I. ex rel. Azam v. Vullo, 57 Misc 3d 244, 248 [Sup Ct 2017]

Furthermore, the New York State Senate noted in a Legislative Memorandum that

"[t]he Fund has been in operation for more than four years, and the experiences of the parents of children who are required to rely on the Fund in lieu of direct compensation for their medical and health care expenses have exposed issues with the administration of the Fund . . . The children and the families of children who have sustained birth-related neurological injuries due to malpractice deserve to have their future health care costs and services they need paid for by the Fund they are required to participate in." (Senate Mem in Support, L 2016, ch 517, 2016 McKinney's Session Law News of NY, No. 8 at A-632 [Feb. 2017].) Matter of K.I. ex rel. Azam v. Vullo, 57 Misc 3d 244, 248 [Sup Ct 2017].

The amendment made to Public Health Law § 2999-h, which became effective on February 14, 2017, made a technical change of adding commas to the definition of "birth-related neurological injury". The amended definition of "birth-related neurological injury" reads an injury to the brain or spinal cord of a live infant caused by the deprivation of oxygenor mechanical injury occurring in the course of labor, delivery or resuscitation, or by other medical services provided or not provided during delivery admission, that renderedthe infant with a permanent and substantial motor impairment or with a developmentaldisability." (Public Health Law § 2999-h [1] [eff Feb. 14, 2017] [emphasis added].)

("2017 Amendment").

Under 10 NYCRR 69-10.1, "delivery admission" is defined as the "admission for the specific purpose of giving birth." 10 NYCRR 69-10.1. In Matter of K.I. ex rel. Azam v. Vullo, the Court explained that the addition of a comma after "resuscitation" expanded the definition of "birth-related neurological injury" and that "the criteria are that the injury take place during labor, or during delivery, or during resuscitation, or, the injury may include those occurring during the delivery admission as set forth in the section." Matter of K.I. ex rel. Azam v. Vullo, 57 Misc 3d 244, 249 [Sup Ct 2017].8 The Court further found that based upon the statute's legislative history and plain meaning, the statute does not require the alleged malpractice take place precisely at the time of birth. (See id). Rather, the relevant question is when the injury occurs. (See id).

In the Matter of B.L. v. Lawsky, The Appellate Division, First Department upheld the Supreme Court's order directing the Department of Finance to accept the plaintiff as a "qualified" plaintiff after Fund deemed plaintiff to be ineligible for the Fund. The Court found that 'As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof' " (id. at 435 [citation omitted]). . ..the Fund statutes do not limit enrollment eligibility to instances where plaintiff's birth-related injury was caused by medical malpractice during labor, delivery, resuscitation or a delivery admission.

Rather, the plain language of the pertinent provisions of the Public Health Law requires that the injury take place in the course of labor, delivery or resuscitation. B.L. v. Lawsky, 171 AD3d 401, 402 [1st Dept 2019].

The Court determined that the Department of Financial Services should not have disqualified the plaintiff on the ground that the alleged malpractice occurred in the course of his mother's prenatal treatment. The Court noted that the injuries he allegedly suffered occurred at the time of birth and there were no allegations or findings that he was deprived of oxygen or otherwise injured at any time before he was in the process of being born. (See B.L. v. Lawsky, 171 AD3d 401, 402 [1st Dept 2019]).

Here, the Court notes that this case is one of first impression, as the Court is unaware of a case in which the plaintiff seeks to have the infant-plaintiff excluded from the Fund. However, as the Plaintiffs' preference is not determinative here, the relevant question is whether S.U.'s alleged injury to the brain was caused "by other medical services provided or not provided during delivery admission" pursuant to the statute. The Court finds that based upon the current status of this Action, the answer to that question is yes.

As noted by Judge Madden in the Summary Judgment Decision, Plaintiffs sufficiently raised several triable issues of fact, including NYU's alleged failure to properly care for S.U. for feeding problems, provide adequate formula supplementation and to recognize and treat S.U. for signs of dehydration prior discharge from the hospital, including inadequate voids and dry lips. Plaintiffs' own experts opined that NYU inadequately fed S.U. during his admission and failed to recognize "obvious" signs of feeding problems and dehydration that were present prior to his discharge, namely S.U.'s decreasing voids and "obvious" dry and peeling lips. Dr. Madden stated in her affirmation that she agreed with the section of Dr. Parton's affirmation, which stated that "this case involves allegations of negligence surrounding the evaluation, counseling and treatment of feeding problems and dehydration during the infant-plaintiff's birth admission from February 27, 2011 to March 1, 2011 at NYU Hospital."

The Court finds that for the purposes of this Motion and based upon the arguments of all sides, the Court will accept that S.U. was in some state of degree of dehydration at the time of his discharge. The Court also notes that Plaintiffs conceded during oral argument that S.U. was somewhat dehydrated prior to his discharge from NYU on March 1, 2011. Based upon this finding, the Court finds that S.U. is a qualified plaintiff under the statute since he allegedly suffered a brain injury "by other medical services provided or not provided during delivery admission." Plaintiffs' argument that S.U. is not qualified since he suffered his brain injury after discharge is unavailing, since the brain injury as alleged by Plaintiffs was caused by and cannot be separated from the dehydration S.U. allegedly suffered while admitted to NYU. Since S.U. was somewhat dehydrated while he was admitted to NYU for the purposes of delivery, the Court finds that he suffered a "birth-related neurological injury" and is therefore a "qualified plaintiff" under Public Health Law § 2999-h.

The Court also finds that deeming S.U. to be a "qualified plaintiff" upholds the legislative intent behind the statute and 2017 Amendment, which was enacted to expand the definition of a "birth-related neurological injury" and resolve issues that deserving plaintiffs were facing in obtaining funding from the Fund. As discussed, the legislature placed commas around the phrase "by other medical services provided or not provided during delivery admission" to achieve this goal. This Court believes that such was added to expand the definition of birth-related neurological injuries beyond oxygen deprivation or mechanical injury occurring during the course of labor, delivery or resuscitation to include those caused "by other medical services provided or not provided during delivery admission." Such a finding is also supported by the principle of statutory construction that holds that "the use of a comma before the disjunctive "or", in construing a sentence in a statute, ordinarily indicates an intention to discriminate the first half of sentence from the second half." McKinney's Cons. Law. of NY., Book 1, Statutes Sec. 253. (See also Matter of Van Patten v. LaPorta, 148 AD2d 858, 860 [3d Dept 1989] ("in addition, the placement of a comma before the disjunctive "or" indicates an intent to discriminate between the various parts of the sentence"); 97 NY Jur. 2d Statutes § 120. ("the placement of a comma before the disjunctive "or" in a statute that lists several alternatives indicates an intent to discriminate between the various parts of the sentence")).

The Court notes that it has considered Plaintiffs' arguments in opposition and has found them to be unavailing. Plaintiffs argue that S.U. did not suffer an injury during a delivery admission since he was admitted for post-partum care at the relevant time and that such admission is a separate admission than obstetrics and delivery (with its own billing code). However, the fact remains that M.A. was admitted for purposes of delivery and S.U. was admitted to NYU following his birth for the sole purpose of being monitored and cared for following his birth. Furthermore, S.U. and M.A. were discharged at the same time. To hold that S.U. was not admitted during the relevant time for a delivery admission would violate the statute's plain language and strong legislative intent of guaranteeing access to the Fund for plaintiffs who have suffered a qualifying birth-related neurological injury.

The Court is also unpersuaded by Plaintiffs' argument that S.U. will be disadvantaged if he is deemed a "qualified plaintiff" and therefore eligible to participate in the Fund. As noted by the Court in Mendez, the Fund pays for a wide range of services, specifically future medical, hospital, surgical, nursing, dental, rehabilitation, custodial, durable medical equipment, home modifications, assistive technology, vehicle modifications, prescription and non-prescription medications, and other health care costs actually incurred for services rendered to and supplies utilized by qualified plaintiffs, which are necessary to meet their health care needs as determined by their treating physicians, physician assistants, or nurse practitioners...." (Public Health Law § 2999—h[3] ).

Once a child is enrolled, "the Fund pays for all covered future medical expenses, even if medical circumstances change requiring more extensive care than was estimated at the time of settlement", with no "monetary ceiling on the amount of care to which the child is entitled over his or her lifetime." Mendez ex rel. Mendez v. New York and Presbyt. Hosp., 34 Misc 3d 735, 739 [Sup Ct 2011]. On oral argument, Plaintiffs' counsel was unable to provide a definitive disadvantage, including any services that S.U. currently receives through Medicaid that he would not receive through the Fund. Rather, Plaintiffs' counsel represented that S.U.'s parents would prefer to continue with Medicaid since S.U. has been on it for several years and they are familiar with this system. The Court finds that it is the statute, not the parents' preference, that controls here and therefore S.U. must be enrolled in the Fund since he is a "qualified plaintiff" who suffered a "birth-related neurological injury."

However, the Court further holds if a jury finds that S.U. was not dehydrated or suffering from fluid problems during his admission to NYU, but still finds NYU liable on some other grounds, further motion practice will be required to determine if S.U. is still a "qualified plaintiff" under Public Health Law § 2999-h.

Accordingly, it is hereby

ORDERED that Defendant's Motion to deem S.U. a "qualified plaintiff" who suffered a "birth-related neurological injury" under Public Health Law § 2999-h is hereby granted; it is further

ORDERED that further motion practice before this Court will be required if a jury finds that S.U. was not dehydrated or suffering from fluid problems during his admission to NYU, but still finds NYU liable on some other grounds; and it is

ORDERED that any and all other requests for relief are hereby denied.

4/7/2021

JUDITH REEVES MCMAHON, J.S.C.

FOOTNOTES

1.   On the Morning of March 1st, a lactation consultant visited her while she was nursing, who asked if she had any questions, and observed that the baby looked like he was doing great. M.U. testified that he was denied formula samples as the time of discharge since S.U. was being breastfed. M.A. was told to look out for wet diapers and that he should be nursing every three hours.

2.   Nurse LaMacchia stated in her deposition that she did not recall receiving this phone call but testified that she was the discharge nurse at NYU on March 1, 2011 until 8 PM that night.

3.   While Judge Madden detailed the expert affidavits submitted by both parties in the Summary Judgment Decision, the Court will give a brief overview of such opinions.

4.   According to both experts, the advice given by Nurse LaMacchia to M.A. over the phone regarding the red powdery substance in S.U.'s diaper was in accordance with accepted practice, as it is common for newborn babies to excrete such a substance for the first 48 hours of life.

5.   Dr. Madden is board certified in Pediatric Medicine and Neonatal-Perinatal Medicine, and Nurse Sloan is a registered nurse and International Board Certified Lactation Consultant.

6.   Dr. Madden lists several other departures, including Nurse LaMacchia's failure to refer M.A. to immediately seek emergent care during the telephone conversation and NYU's staff discouraging plaintiffs from formula supplementation upon discharge and failure to properly counsel M.A. about breastfeeding (including the risk of dehydration due to exclusive breastfeeding in light of multiple risk factors).

7.   Nurse Sloan further stated that NYU departed from the standard of care by not having M.A. evaluated by a lactation consultant and failing to educate her about pumping or hand expressing her milk during the long periods her son was away from her overnight and the lack of an evaluation by a lactation consultant

8.   The Court also pointed to the Memorandum of support of the 2017 Amendment, which explained that the amendments made regarding eligibility for the Fund to address issues raised in the case of Matter of K.O. v. Lawsky, 50 Misc 3d 742, in which the Court found the Fund arbitrarily deemed a plaintiff not qualified despite the Judge's finding that the infant was based on the fact that the infant was not admitted to a hospital at the time of the injury. (See Matter of K.I. ex rel. Azam v. Vullo, 57 Misc 3d 244, 249-50 [Sup Ct 2017] (quoting Senate Mem in Support, L 2016, ch 217, 2016 McKinney's Session Law News of NY, No. 8 at A-632 [Feb. 2017] [2016 NY Senate Bill S7873B, Sponsor: Hannon])).

Judith Reeves McMahon, J.

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