Smith v. Vosburgh , 176 A.D.2d 259 ( 1991 )

— In a medical malpractice action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Nassau County (Levitt, J.), entered January 11, 1989, which, upon rulings dismissing the complaint against the defendants Herzog and Chudow at the close of the plaintiffs’ case and dismissing the complaint against the defendants Karafiol and North Shore University Hospital at the conclusion of the evidence, is in favor of the respondents and against them.

Ordered that the judgment is affirmed, without costs or disbursements.

In determining a motion for a judgment as a matter of law, the trial court’s function "is not to weigh the evidence, but rather, 'in taking the case from the jury, to determine that by no rational process could the trier of facts base a finding in favor of the [plaintiff] upon the evidence * * * presented’ ” (Colozzo v Lo Vece, 144 AD2d 617, 618, quoting from Dooley v Skodnek, 138 AD2d 102, 104). Viewing the evidence in the light most favorable to the plaintiffs and resolving all questions of credibility in their favor (see, Alberti v St John’s Episcopal Hospital-Smithtown, 116 AD2d 612; Lipsius v White, 91 AD2d 271, 276-277), we find that the plaintiffs failed to produce sufficient evidence from which a reasonable person might conclude that any of the hospital staff’s acts or omissions which may have constituted departures from the standards of medical care in the community were a proximate cause of the infant plaintiff’s cerebral palsy.

The plaintiff mother, Nancy Smith, was admitted to the defendant hospital at about 11:15 a.m. on June 14, 1979, due to the onset of labor, and, at about 3:05 p.m. that day, the infant plaintiff was delivered by caesarian section. During that period, she was attended to by her own physician as well as by the residents and nurses on the staff of the hospital. The plaintiffs’ expert testified that if the baby had been delivered about an hour earlier (i.e., around 2:00 p.m.), then the baby probably would have been normal. During the crucial period between 2:00 p.m. and 2:40 p.m., the mother’s physician, Dr. Vosburgh, continued checking her labor every 5 or 10 minutes, and, despite the fact that the fetal monitoring tapes recorded intervals of slowing of the fetal heart rate, he did not attribute them to any fetal distress. At about 2:40 p.m., when he was notified by one of the nurses of a prolonged drop in the fetal heart rate, Dr. Vosburgh decided to try a different monitor rather than an immediate caesarian section. It was only after the second monitor had reflected signs of fetal distress, that Dr. Vosburgh ordered that the caesarian section be performed.

The record is clear, therefore, that the infant plaintiff’s injuries were not proximately caused by any acts or omissions by the hospital staff but, rather, resulted, if at all, from the medical decisions and judgments of the plaintiffs’ private physician. Lawrence, Balletta and Rosenblatt, JJ., concur.