REVERSING THE FOURTH DEPARTMENT WITHOUT OPINION OR MEMORANDUM DECISION, THE COURT OF APPEALS HELD QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR IN THIS MEDICAL MALPRACTICE ACTION (CT APP).

The Court of Appeals, reversing the Fourth Department without an opinion or memorandum decision, determined questions of fact precluded summary judgment in defendants’ favor in this medical malpractice case. ​Amber R. v Pediatric & Adolescent Urgent Care of W. N.Y., PLLC, 2024 NY Slip Op 02085, CtApp 4-18-24

From the dissent in Amber R. v Pediatric & Adolescent Urgent Care of W. N.Y., PLLC, 2023 NY Slip Op 04063 [218 AD3d 1344], Fourth Dept 7-28-23:

The medical records proferred by defendants established that, after a failed first intubation attempt with a 3.5 mm ET by defendant Katelyn Johnson-Clark, D.O., a physician with little training in the intubation process, Johnson-Clark attempted intubation using a smaller 3.0 mm ET. It is undisputed that there was no verification of the proper placement of that ET by way of an end-tidal CO2 detector. The medical records further establish that one minute after the placement of the ET, the infant’s heart rate quickly dropped and one minute thereafter, the infant’s belly was distended. Another physician testified at her deposition that both of those signs indicate that there was a potential issue with the intubation. When the specialized transport team arrived, it was determined by way of a CO2 detector that the ET was not in the proper place. Thus, we conclude that defendants’ own submissions raise questions of fact whether Johnson-Clark acted negligently in the intubation of the infant and the motion was properly denied in part without regard to the sufficiency of plaintiff’s opposition papers … . We would therefore affirm that part of the order denying defendants’ motion insofar as it seeks summary judgment dismissing the claim of malpractice related to the intubation of the infant.