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In February 2012, the plaintiff in a New York birth injury medical malpractice case went into preterm labor at 32 weeks gestation and gave birth to an infant who suffered a brain bleed and developed cerebral palsy. During the course of the pregnancy, the plaintiff received prenatal care from defendant Birth N. Beyond, LLP (“BNB”), a midwifery practice. Defendant Tammy Brant, a certified nurse midwife, was a minority partner of BNB and defendant Lawrence Dolkart – a collaborating maternal fetal medicine physician – was the majority partner, with an interest of around 80%. In January 2012, Dolkart performed a level two ultrasound to assess the infant’s kidneys, ultimately finding that they were normal. Dolkart also assisted with the infant’s delivery the next month.

The New York Appellate Court stated in its opinion dated April 7, 2022: “To establish her claim of medical malpractice against Dolkart and BNB, plaintiff bears the burden of demonstrating that they owed her a duty of care, deviated from the accepted standard of care and such deviation was a proximate cause of the infant’s injuries … [A] physician-patient relationship is created when professional services are rendered and accepted for purposes of medical or surgical treatment … Where no direct patient-physician relationship exists, “‘an implied physician-relationship can arise when a physician gives advice to a patient, even if the advice is communicated through another health care professional'” … Whether a medical professional owed a duty of care to the plaintiff “is [generally] a legal question for courts to determine” … However, “‘[w]hether a physician’s proffer of advice furnishes a sufficient basis upon which to conclude that an implied physician-patient relationship has arisen is ordinarily a question of fact for a jury'” … Moreover, a physician may be held vicariously liable for the negligent acts of “those they ‘exercise some general authority or control over.'”

The New York Appellate Court stated in the case it was deciding, “whether Dolkart owed a duty of care to plaintiff as it pertained to progesterone treatment cannot be determined as a matter of law on this record. Dolkart is correct that the referral of a patient for the sole purpose of having a level 2 ultrasound does not necessarily give rise to a general duty of care beyond the limited medical functions for which the patient was referred … Here, however, Dolkart’s care of plaintiff went beyond a single isolated ultrasound. As a collaborating physician, BNB referred high risk patients to Dolkart for collaborative care. However, the record contains conflicting proof as to whether plaintiff would have been considered a high risk patient at the time that she sought care with BNB for the subject pregnancy. To that end, the record includes an affidavit from Barbara W. Graves – a certified nurse midwife – who averred that, at the time of the subject pregnancy, a woman with plaintiff’s history of preterm delivery, all involving births after 35 weeks gestation, would not necessarily have been considered at higher risk for preterm labor in a subsequent pregnancy. Brant, in contrast, indicated that, based upon plaintiff’s history of preterm deliveries, Dolkart would have been consulted regarding plaintiff’s case shortly after her first appointment, and it is clear that Dolkart considered plaintiff to be at higher risk for preterm delivery based upon her medical history. There was also testimony that Dolkart set BNB’s policies and practices as it related to progesterone treatment in 2011 and 2012. Given such conflicting proof, questions of fact exist as to whether plaintiff was a high risk patient, whether Dolkart owed a duty of care to her on that basis in accordance with his status as BNB’s collaborative physician and, if so, whether the scope of that duty encompassed care tailored to prevent preterm delivery.”

“Even independent of any physician-patient relationship that may have arisen between Dolkart and plaintiff, questions of fact exist as to whether Dolkart may be held vicariously liable for any negligence on the part of BNB in the course of plaintiff’s care. Under Education Law § 6951 (1), midwives are authorized to manage “normal” pregnancies while maintaining collaborative relationships with licensed physicians. Dolkart, as the majority partner of BNB, acted as the collaborating physician for the midwifery practice in accordance with this statutory requirement, and the testimony indicates that he set BNB’s policies with respect to the use of progesterone. Although Brant testified that the midwives of BNB were “independent practitioners,” plaintiff’s expert averred that, as the “collaborating and supervising physician of the midwife practice and its employees, [Dolkart] was responsible for setting the policies and practice guidelines for patient care at [BNB], as well as for supervising his employees to make sure that those policies were followed and that his employees practiced within the applicable standards of care.” As such, there are questions of fact as to whether Dolkart may be held vicariously liable for any negligence on the part of BNB in failing to refer plaintiff to him for care as a high risk patient, regardless of any physician-patient relationship that may have existed between them.”

“BNB and Dolkart are integrally intertwined, and BNB may be liable for any injuries incurred by the infant as a result of “any wrongful act or omission” on Dolkart’s part deriving from “the ordinary course of the business of the partnership” (Partnership Law § 24). Given Dolkart’s status as the majority partner of BNB and the evidence that he was responsible for setting its policies and practices, including with respect to progesterone, we agree with Supreme Court that questions of fact exist as to BNB’s liability, precluding judgment as a matter of law in its favor.”

Liquori v. Dolkart, No. 2022-02314.

If you or your baby suffered a birth injury (or worse) during labor and/or delivery in New York or in another U.S. state, you should promptly find a New York birth injury lawyer, or a birth injury lawyer in your state, who may investigate your birth injury claim for you and represent you and your child in a birth injury medical malpractice case, if appropriate.

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