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Petty v. Pilgrim10/3/2005
evidence establishing that at all times she acted under the direction and supervision of Dr. Pilgrim and that she lacked the authority to independently order a caesarian section for a private patient. This evidence demonstrated that Dr. Pilgrim was present when the decelerations in the fetal heart rate were the most serious and prolonged, and that he elected not to perform a caesarian section, but instead employed several measures to address that condition and to monitor the progress of the mother's labor. The evidence further established that Dr. Clarke implemented those measures, continued to monitor the situation, and regularly reported her findings and impressions to Dr. Pilgrim over the next few hours until Dr. Pilgrim ordered - and then performed - a caesarian section due to the failure of the labor to progress.
The plaintiffs failed to raise a triable issue of fact in opposition to Dr. Clarke's prima facie showing. Rather, they merely theorized that Dr. Clarke acted independently and failed to advise Dr. Pilgrim of significant developments which warranted immediate intervention. However, this contention is refuted by Dr. Clarke's deposition testimony and affidavit, as well as by the contemporaneous progress notes indicating that Dr. Pilgrim was with the mother at 1:30 A.M. and gave orders regarding her care, that Dr. Clarke continued to monitor the mother and fetus with regard to the progress of labor, and that she notified Dr. Pilgrim at approximately 4:30 A.M. when the labor still had not progressed satisfactorily, after which Dr. Pilgrim performed the caesarian section. The mere circumstance that some entries in the progress notes did not indicate that Dr. Clarke consulted with Dr. Pilgrim is insufficient to contradict Dr. Clarke's sworn submissions that such consultations took place and that she acted solely at the direction of Dr. Pilgrim at all times. The speculative and unsubstantiated assertions of the plaintiffs' expert to the contrary were patently inadequate to raise a triable issue of fact in this regard (see Lynn G. v Hugo, 96 NY2d 306, 310; Alvarez v Prospect Hosp., 68 NY2d 320, 325). Accordingly, since the plaintiffs failed to present any evidence of a specific, independent act or omission by Dr. Clarke which proximately caused injury to Adrianna, the Supreme Court properly granted summary judgment in favor of Dr. Clarke (see Cook v Reisner, supra).
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