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Aime Sy v. Brescia

Superior Court of New Jersey, Appellate Division

August 15, 2013

CALVIN ALEXANDRE AIME SY, an infant by His Mother and Natural Guardian, LILIANE VERDEROSA-SY, and LILIANE VERDEROSA-SY, individually, Plaintiffs-Appellants,
v.
MARK J. BRESCIA, M.D., NATASHA CHINN, M.D., PALISADES MEDICAL CENTER, jointly, severally and in the alternative, [1] Defendants, and THOMAS A. MIGLIACCIO, M.D., Defendant-Respondent

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 27, 2013

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5639-10.

E. Drew Britcher argued the cause for appellants (Britcher, Leone & Roth, L.L.C., attorneys; Mr. Britcher, of counsel; Jessica E. Choper, on the brief).

Charles E. Murray, III argued the cause for respondent (Farkas & Donohue, L.L.C., attorneys; Evelyn C. Farkas, of counsel; Jennifer S. Gianetti, on the brief).

Before Judges Sapp-Peterson and Nugent.

PER CURIAM

Plaintiffs, Calvin Alexandre Aime Sy ("Sy"), an infant, by his mother and natural guardian, Liliane Verderosa-Sy ("Verderosa-Sy"), and Verderosa-Sy, in her individual capacity, appeal from the trial court order granting summary judgment to Dr. Thomas A. Migliaccio, the only remaining defendant in this medical malpractice case. We affirm.

These are the facts, viewed most favorably towards plaintiffs. Defendant is an obstetrician and a member of a group of practitioners to whom Verderosa-Sy presented for pre-natal care and the ultimate delivery of her son Sy. Defendant was one of the doctors who attended to her during the latter stages of her pregnancy. On the evening of May 4, 2010, she was admitted to Palisades Medical Center (Palisades). Around 4:30 p.m. on May 5, Dr. Migliaccio ruptured her membranes in order to induce labor. Dr. Migliaccio's next involvement occurred around 12:30 a.m. on May 6. He examined her and determined that she had dilated seven centimeters at that time. He saw her again that morning at 7:30 a.m. and determined that her labor was progressing normally. In addition to other physicians from Dr. Migliaccio's practice group, the nursing staff at the hospital also monitored Verderosa-Sy. At 8:30 a.m., Verderosa-Sy began complaining of back pain and asked for Dr. Migliaccio. She was told that he would see her in a few minutes. She was seen, however, by Dr. Brescia at 9:10 a.m. Following his examination, Dr. Brescia instructed the nursing staff that the pushing process should be continued. The nursing staff called Dr. Migliaccio at 10:27 a.m. and he went directly to Labor and Delivery. When he arrived, Verderosa-Sy was crowning.[2] He delivered Sy at 10:35 a.m., at which time he immediately turned Sy over to the attending pediatrician.

In October 2010, Verderosa-Sy filed a complaint against Dr. Migliaccio, Dr. Mark. J. Brescia, Dr. Natasha Chinn, [3] and Palisades. The complaint alleged that defendants deviated from acceptable standards of care in their treatment and care of Verderosa-Sy, resulting in injuries to her and to Sy.

On January 28, 2011, plaintiffs served an Affidavit of Merit prepared by Dr. Joshua Holden, a board certified obstetrician and gynecologist. In the affidavit, Dr. Holden opined that defendants "deviated from acceptable obstetrical standards of care in their management of the labor course of Liliane Verderosa-Sy and the indirect treatment rendered to the infant, Calvin Alexandre Aime Sy." The doctor stated further that the deviations occurred, among other times, "during the course of labor and particularly in the monitoring of the fetal heart tracings." Dr. Holden additionally expressed the opinion that

within a reasonable degree of medical certainty, the fetal heart rate pattern shows signs of distress beginning on May 6, 2010 at 9:23 a.m. with decelerations down to 60 for 3 minutes, at 9:31 a.m. for 10 minutes, 9:44 a.m. for 13 minutes, 9:57 a.m. for 6 minutes with a decrease in variability afterwards. There is no documentation in the records of whether Pitocin was still being used; there is no documentation of intervention, i.e. shutting the Pitocin, fetal scalp electrode placement, operative delivery and/or cesarean section. In my opinion the continued distress evidenced on the fetal monitoring strips warranted immediate cessation of Pitocin drip and placement of fetal scalp electrode. Certainly by 10:20 a scalp electrode should have been placed, Pitocin stopped, patient rotated to left side with careful attention paid to the infant[']s ability to recover. This should have been followed by an immediate abdominal delivery or at the very least a timely instrument assisted delivery.
I further opine within a reasonable degree of medical probability, that the labor curve was also prolonged and there is no supporting documentation or explanation as to why this patient was allowed to labor so long. Liliane Verderosa-Sy was examined on May 5, 2010 at 11:25 p.m. and was found to be 7cm. On May 6 at 4:15 a.m., she was 8 to 9cm and then when rechecked at 5:45, proper standards would have been to deliver this baby by 6:00 or 6:30. This labor stage is abnormally long as there is no documentation of intrauterine pressure catheter placement or other intervention, including Pitocin titration or cesarean section.
I opine, within a reasonable degree of medical probability that . . . Dr. Thomas Migliaccio . . . deviated from good and accepted obstetrical standards of care in failing to perform a scalp electrode placement; in failing to stop the Pitocin; in failing to place Liliane Verderosa-Sy on her left side in causing and permitting prolonged stages of labor; in failing to perform an instrument assisted delivery; and in failing to perform an abdominal delivery. These deviations were all substantial factors in causing prolonged fetal distress, meconium aspiration, hypoxia and the resultant severe injuries and residual effects sustained by the infant. Accordingly, ...

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