Rosa v. Kulkarni , 452 N.Y.S.2d 441 ( 1982 )

Order, Supreme Court, New York County (Gammerman, J.), entered March 15, 1982, which denied defendants’ motion to submit the matter to a medical malpractice panel for a hearing, reversed, on the facts and in the exercise of discretion, without costs, and the motion to refer the case to a medical malpractice panel granted. The instant action involves a claim of medical malpractice which allegedly occurred on June 19,1977 when the plaintiff-respondent Marcelle Rosa was admitted to defendant-appellant New York University Hospital and gave birth to a male infant. The complaint, served in September of 1977, alleged that Rosa suffered unnecessary pain and injury, as well as psychotrauma, due to the negligence of the hospital and the anesthesiologist, also a defendant herein. After discovery had been completed, and a note of issue and certificate of readiness had been filed, the action was placed on the Trial Calendar. On October 24, 1980, a pretrial conference was held at the conclusion of which the matter was referred to a medical malpractice panel. Before the hearing by a medical malpractice panel took place, the case was conferenced again, this time before another Judge, and a disagreement arose over the anesthesiologist’s purported delay in reaching the delivery room. The court, in declining to submit the action to a medical malpractice panel, held that the only question was one of fact as to the anesthesiologist’s response time. The defendants then moved to compel a panel hearing pursuant to section 148-a of the Judiciary Law and rule 636.1 of the Rules of the Appellate Division, First Department (22 NYCRR 636.1). The court denied the motion, declaring that it was within its discretion to withhold from the panel’s consideration a case where the only dispute does not concern a question of medical malpractice, but involves merely a factual issue as to whether the anesthesiologist delayed 45 minutes or only 30 seconds in arriving at the delivery room. The court was not warranted in concluding that there are no issues of medical malpractice alleged in the instant action. In their complaint, the plaintiffs are charging a number of deviations from accepted standards of medical practice, including the failure to make appropriate arrangements for the administration of anesthesia during the delivery, for not promptly providing her with anesthesia, and for not properly managing and supervising the delivery of intravenous medication. Moreover, there is a question regarding the medical consequences of the defendants’ alleged negligence, and this would certainly be within the province of a malpractice panel. Thus, the contention regarding the extent of the anesthesiologist’s delay is clearly not the only unresolved issue in the case. Concur — Sullivan, Asch and Milonas, JJ.