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Torres v. Sullivan6/29/2005
Maria Torres, as parent and natural guardian of Luis Torres, appeals an order granting a partial summary judgment that dismissed her claim of medical malpractice against John E. Sullivan, Jr., M.D.; John E. Sullivan, Jr., M.D., P.A.; and SMH Physician Services, Inc., d/b/a First Physicians Group (collectively, Dr. Sullivan). In entering summary judgment in favor of Dr. Sullivan, the trial court rejected testimony from Mrs. Torres' expert witness regarding what the standard of care required of Dr. Sullivan. Because the issue of whether Dr. Sullivan=s actions met the appropriate standard of care involved a disputed issue of fact, we reverse.
Maria Torres sued Dr. Sullivan alleging he was negligent in failing to deliver Luis by Cesarean section. The complaint alleged that Dr. Sullivan=s failure to obtain a complete history from Mrs. Torres caused him to deliver Luis vaginally and that Luis was injured as a result.
Luis was considered a large baby, particularly in light of Mrs. Torres= small stature. This fact was known to Dr. Sullivan. Mrs. Torres had previously given birth vaginally to a large baby. This fact was also known to Dr. Sullivan. That delivery resulted in an injury to the baby that was similar to the injury Luis sustained, although eventually that child fully recovered. At the summary judgment hearing, Dr. Sullivan contended he was unaware of the injury to the prior baby when he made the decision to deliver Luis vaginally.
Mrs. Torres' medical expert, Dr. Schifrin, testified in his deposition regarding the standard of care:
t was my allegation that it is inappropriate to undertake vaginal delivery in this patient. That is predicated on his knowledge of--or what he either knew or should have known about the previous delivery. . . . But at a minimum he was obliged to know about it. He may have known about it. He should have known about it. He should have known about it.
There is some uncertainty about the information he had. Okay? I concede that. This is information he had to have, he should have had, he needed to have to be able to make a proper diagnosis.
Sullivan has one responsibility, and the responsibility is to say did you have a problem with your previous delivery? Was there a problem with the baby after your previous delivery?
To the mother. Right there in front of her. That would discharge--if the answer to that is no, if she says no, if she says no, he . . . .
hen he met the standard of care. He's got to have done all of that . . . .
In an affidavit submitted in opposition to the motion for summary judgment, Dr. Schifrin stated, AIt is my opinion that . . . it is the standard of care for an obstetrical physician in rendering obstetrical care and treatment to ask the mother, in this case Maria Torres, whether there was a problem with her [previous] baby . . . after her delivery.@ He also stated that Dr. Sullivan Ahad an independent duty to ask Maria Torres whether there was a problem with the baby . . . after her prior delivery.@
In his motion for summary judgment, Dr. Sullivan contended that the undisputed facts discovered after Dr. Schifrin=s deposition established that Athe conditions enumerated by [the expert] did exist at the time of delivery.@ Specifically, the motion was premised on the representation that Dr. Sullivan had testified that AMs. Torres had confirmed in the history she provided that there were no problems with her prior deliveries or children.@ Thus, Dr. Sullivan argued that it was undisputed that he met the standard of care espoused by Dr. Schifrin.
What the record actually reflects, however, is that Dr. Sullivan never questi
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