James v. Corwin

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered January 10, 2005, which denied defendants-appellants’ motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Plaintiffs’ expert’s affirmation in opposition is properly based on evidentiary facts in the record, including defendant midwife’s deposition testimony and defendant hospital’s records, and satisfied plaintiffs’ burden of showing the existence of issues of fact as to whether defendants departed from accepted standards of obstetrical care and, if so, thereby substantially contributed to the infant plaintiffs brain damage and other alleged injuries (see Alvarez v Prospect Hosp., 68 NY2d 320, 324-325 [1986]; Lambos v Weintraub, 246 AD2d 356, 357-358 [1998]). Such factual issues include, inter alia, whether a cesarean section should have been performed based on the prenatal nonstress test and biophysical profile performed some three weeks before the delivery, the fetal heart monitoring strips taken some two hours before the delivery, and the presence of meconium some 30 minutes before the delivery, and whether the development of seizures during the early neonatal period is indicative of hypoxic ischemic injury sustained during delivery. Concur—Andrias, J.P., Marlow, Sullivan, Ellerin and Nardelli, JJ.