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DEFENDANT PHYSICIAN MAY BE LIABLE FOR FAILURE TO ADVISE DECEDENT AND THE NURSE MIDWIFE AGAINST HOME BIRTH; SUCH FAILURE COULD CONSTITUTE A PROXIMATE CAUSE OF DEATH; JUDGE SHOULD NOT HAVE GRANTED SUMMARY JUDGMENT BASED IN PART ON A GROUND NOT RAISED BY THE PARTIES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this medical malpractice action should not have been granted. Defendant, Lascale, is a board-certified obstetrician and gynecologist specializing in maternal-fetal medicine. Plaintiff’s decedent died in childbirth when she was assisted at home by a certified nurse midwife (Moss Jones). Plaintiffs alleged Lascale negligently failed to advise decedent and Moss Jones of the dangers of a home birth given the baby’s size and the fact decedent had previously given birth by caesarian section. Lascale argued his limited role, analyzing periodic sonograms, did not include advice on delivery. The Second Department noted that the motion court, sua sponte, should not have granted defendant’s motion based in part on an issue not raised by the parties:

Although Lescale, a board-certified obstetrician and gynecologist, purported to limit the scope of his duty to the field of maternal-fetal medicine, and the performance and interpretation of ultrasounds, it was within such limited scope of duty to consult with the decedent and Moss Jones … , concerning his diagnosis of suspected fetal macrosomia [the baby was very large], and how such diagnosis would increase the risks of a VBAC [vaginal birth after caesarian section] home birth, given all of the other risk factors that were present. Given such risks, it was also within the scope of Lescale’s duty to advise the decedent and Moss Jones against proceeding with the planned VBAC home birth. * * *

“When a question of proximate cause involves an intervening act, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence” . “It is only where the intervening act is extraordinary under the circumstances, not foreseeable in the norm… al course of events, or independent of or far removed from the defendant’s conduct, that it may possibly break the causal nexus” … .

* * * Whether the decedent would have heeded appropriate warnings and advice by Lescale in light of, inter alia, the purported warnings she was given by Moss Jones, or her own views, is for the jury to decide … . Romanelli v Jones, 2020 NY Slip Op 00316, Second Dept 1-15-20

 

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