Maria Pilar Bustos, et al., Appellants,v.Lenox Hill Hospital, Respondent, Pedro Segarra, M.D., et al., Defendants.BriefN.Y.April 30, 2014MAURO i LILLING i NAPARTYllp Appellate Advocacy & Litigation Strategy ORIGINAL February 27, 2014 FEDERAL EXPRESS Andrew W. Klein, Esq. Clerk of the Court State of New York Court of Appeals 20 Eagle Street Albany, NY 12207-1095 Re: Bustos v. Lenox Hill Hospital APL-2013-00234 Dear Mr. Klein: This office is Appellate Counsel to Decorato Cohen Sheehan & Federico LLP, attorneys for Defendant-Respondent, Lenox Hill Hospital, in the above matter. This matter was selected, pursuant to § 500.1 1 of the Court of Appeals Rules of Practice, for alternative review. As set forth below, the issue is whether the Appellate Division, First Department properly set aside the jury's verdict and dismissed the plaintiff's complaint. For the reasons that follow, this Court should affirm the Appellate Division's Decision and Order. The law is well settled that an expert's testimony must contain sufficient allegations to demonstrate that his or her conclusions are more than mere speculation. Here, the only expert testimony proffered in support of plaintiff's first medical malpractice theory was "yes," in response to whether the treatment provided by Lenox Hill Hospital was a departure from accepted practice and the proximate cause of the claimed injury. As such, the Appellate Division appropriately concluded that the expert "did not explain or in any other way support his opinion, which therefore was speculative and conclusory and without probative force" (Bustos v. Lenox Hill Hosp., 105 A.D.3d 541, [First Dept. 2013]). With respect to the second and only remaining medical 130 Crossways Park Drive, Suite 100 Woodbury, NewYork I1797 ''•'' 516.487.5800 [F] 516.487.581 I mlnappeals.com One Penn Plaza, 49th Floor NewYork NewYork 101 19 [t] 212.631.8617 [Toll Free] 888.487.5800 MAURO I LILLING i NAPARTYllp Andrew W. Klein, Esq. February 27, 2014 Page 2 malpractice theory, the plaintiff's expert actually concluded that the treatment was "standard" and "appropriate," thereby negating any claim for medical malpractice (id-)- Given the legal insufficiency of the evidence, the jury's verdict in favor of the plaintiff was properly set aside and the complaint dismissed. The Appellate Division's April 16, 2013, Decision and Order, setting aside the jury's verdict and dismissing the complaint was a unanimous decision by Justices Andrias, Degrasse, Abdus-Salaam and Feinman. Thereafter, plaintiff moved in the Appellate Division to reargue and/or for leave to appeal to this Court. In the meantime, Justice Abdus-Salaam's appointment to this Court was confirmed by the State Senate. Consequently, Justice Mazzarelli was added to the remaining original Bench to decide the motion, and by Order of the Appellate Division, First Department, dated August 13, 2013, the plaintiffs motion was granted to the extent that leave to appeal was granted. BRIEF STATEMENT OF FACTS The plaintiff commenced this medical malpractice action against her treating obstetrician, defendant Dr. Pedro Segarra, and the hospital where she delivered her infant son, defendant Lenox Hill Hospital, to recover for an injury to her pelvis she allegedly sustained during childbirth. Plaintiff suffered a pubic symphysis diastasis, the separation of the normally joined pubic bones. Most pregnant patients experience such a separation as a result ofhormones that are naturally released during pregnancy, which loosen the ligaments that join the pubic bones to allow for an easier vaginal birth. Plaintiff sustained a greater than average separation. The plaintiff asserted numerous theories of liability against the defendants, but by the end of trial, all of the claims against her obstetrician, Dr. Segarra, who managed both the pregnancy and labor and delivery, were dismissed for failure to proffer sufficient expert testimony. After substantial colloquy, the trial court ultimately submitted to the jury two claims against Lenox Hill Hospital, all the while recognizing that the plaintiffs claims were MAURO i LILLING i NAPARTYllp Andrew W. Klein, Esq. February 27, 2014 Page 3 "a stretch" and that defendants "could have a great issue for appeal" (A. 1299- 1300).' The first liability theory against Lenox Hill asserted a departure from accepted practice "in the maneuvers performed on plaintiff during plaintiffs delivery" (A. 1866). The only expert testimony elicited with respect to this liability theory, however, provided absolutely no explanation or analysis as to how the birthing maneuvers, which the expert conceded were routinely used in labor and delivery rooms across the nation, were a deviation from the standard of care in this case. The only testimony offered by plaintiffs expert on his direct and characterized by plaintiffs counsel was as follows (A. 562): Q. And were the excessive birthing maneuvers that caused these injuries a deviation from the appropriate standard of care? A. Yes. Plaintiffs expert never explained how the birthing maneuvers were excessive or how they constituted a departure from accepted practice. His one word response, "Yes," failed to identify how these routine birthing maneuvers somehow constituted a departure from accepted practice in this case. The expert's failure to offer any medical or scientific explanation as to how Lenox Hill staff departed from accepted practice, or how a birthing maneuver utilized routinely could have caused a pubic symphysis diastasis, and his opinion consisting of a single word, "Yes," was properly deemed by the Appellate Division to be insufficient to sustain a medical malpractice finding. The second liability theory asserted a departure from accepted standards of medical care "in the dosage of an epidural block administered during plaintiffs delivery" (A. 1865). Absent from the Record, however, is any expert testimony even suggesting that a departure from accepted practice occurred with respect to the dosage of the epidural block. Plaintiffs expert testified multiple Numbers in parenthesis preceded by"A." refer to the Appellate Division Appendix. MAURO i LILLING i NAPARTYllp Andrew W. Klein, Esq. February 27, 2014 Page 4 times that the epidural was given "entirely appropriately" and was a "standard dose" (A. 525, 527). The jury found in favor of plaintiff on both theories, and the trial court denied Lenox Hill Hospital's motion to set aside the jury's verdict (A. 6a-21a). By Decision and Order of the Appellate Division, First Department, dated April 16, 2013, the trial court's order was reversed and the complaint dismissed. With respect to the birthing maneuvers theory, the Court concluded that the only expert testimony proffered in support of the claim was the conclusory statement "that the maneuvers 'were excessive and caused th[e] injuries' and deviated from the appropriate standard of care" (Bustos v. Lenox Hill Hosp.. supra. 105 A.D.3d 541 [1st Dept. 2013). The Court went on to conclude that the expert "did not explain or in any other way support his opinion, which therefore was speculative and conclusory and without probative force" (id-)- With respect to the theory that the hospital departed from accepted practice in the dosage of the epidural block, the Court concluded that the plaintiffs "own expert conceded that the dosage was standard and appropriate" (id.)- F°r the reasons that follow, this Court should affirm the Appellate Division's order. ARGUMENT Denial of Summary Judgment is Irrelevant Like she did on appeal in the Appellate Division, plaintiff belabors the fact that the Appellate Division affirmed the denial of summary judgment to the defendants (Plaintiff's Letter Brief at p. 8). Overlooked by plaintiff is that an Appellate Division affirmance of a denial of summary judgment in no way precludes a finding that plaintiff failed to set forth a prima facie case of medical malpractice at trial. The submissions in support of the summary judgment motion, and the denial of the summary judgment are irrelevant to the instant analysis (see. Puro v. Puro. 79 A.D.2d 925 [1st Dept. 1981]). MAURO i LILLING i NAPARTYllp Andrew W. Klein, Esq. February 27, 2014 Page 5 A fair review of the trial evidence confirmed that plaintiff failed to set forth a prima facie case of medical malpractice on either theory of liability submitted to the jury, and the Appellate Division appropriately dismissed the case regardless of the disposition of the summary judgment motion. Indeed, the claims against Dr. Segarra were dismissed at trial at the close of the evidence based upon insufficient expert testimony, despite the fact that he was likewise denied summary judgment and that denial was affirmed by the Appellate Division. Expert Testimony in Support of the Birthing Maneuver Theory Was Insufficient Plaintiff introduced the birthing maneuvers theory by asking plaintiffs sole liability expert, Dr. Plotnick to explain the term "birthing maneuvers." Dr. Plotnick described the patients as recumbent in bed, and they "pull their knees toward themselves," to mimic the traditional "squatting position in beds" (A. 529). He went on to explain that "the McRoberts maneuver," was a particular birthing maneuver "often performed]" that provided additional space for the infant to descend (A. 530). He described this McRoberts maneuver as "an exaggerated hyperflexion abduction maneuver," which involved (A. 530): the patient pulling their legs back towards themselves and out to try and rotate the pelvis. We call this frog- legging, McRoberts, knees up to the chest and out. And that rotates the pelvis and hopefully allows the baby to come under. It gives you another centimeter or so of room. Based upon Dr. Plotnick's testimony, an exaggerated hyperflexion abduction maneuver, also known as the McRoberts maneuver, was perfectly appropriate and utilized often (A. 530). Plaintiffs counsel then read from the plaintiffs testimony, during which she described the nurse and resident utilizing the McRoberts maneuvers, and referred to portions of the hospital chart, which noted the plaintiffs complaints MAURO i LILLING i NAPARTYllp Andrew W. Klein, Esq. February 27, 2014 Page 6 of pain after the delivery, and the diagnosis of a pubic symphysis diastasis two days after the delivery. Based only upon the plaintiffs own description of the McRoberts maneuver and two notations in the hospital chart, which noted only the existence of an injury, Dr. Plotnick was asked the following question (A. 562): Q. Doctor, taking the testimony as I have read it and its other entries from the hospital chart in evidence, what is your opinion, to a reasonable degree of medical certainty, with respect to the birthing maneuvers used at the time of the birth? % ^ :(: ^; A. With a reasonable degree of medical certainty that the birthing maneuvers were excessive and caused these injuries. Q. And were the excessive birthing maneuvers that caused these injuries a deviation from the appropriate standard of care? A. Yes. As can be seen, the expert testimony elicited by plaintiffs counsel to support the notion that Lenox Hill Hospital departed from accepted practice amounts to a single word: "Yes" (A. 562). Nowhere did Dr. Plotnick explain how the birthing maneuvers, which he described as "routine," were excessive or how they constituted a departure from accepted practice, but instead offered only a conclusory assessment that the same maneuvers utilized in the delivery of most infants, in this case, somehow constituted a departure from accepted practice. Without an explanation as to how or why the birthing maneuvers were excessive or constituted a departure from accepted practice, no basis existed for the jury's determination that Lenox Hill departed from accepted practice "in the maneuvers performed on plaintiff during plaintiffs delivery" (A. 1866). MAURO i LILLING i NAPARTYllp Andrew W. Klein, Esq. February 27, 2014 Page 7 Most significantly, the trial court initially dismissed the birthing maneuver theory of liability based upon the absence of expert testimony to establish a deviation from accepted practice and causation (A. 1275). In discussing the liability theory, the trial court repeatedly emphasized the lack of proof: "[h]ow and where does [Dr. Plotnick] establish that the maneuver was either exaggerated or excessive?" (A. 1266); "[h]ow does the expert explain how, in fact, the maneuver was either excessive or —" (A. 1267); "Do you think it was a deviation, yes, and in what way it was a deviation. That's the answer that we're looking for" (A. 1268); "unless you have a linkage of yes, it's a deviation and then an explanation as to how it's a deviation, I'm not able to allow it to stand" (A. 1268). Plaintiff failed to identify any testimony in the Record that would satisfy her burden of proof, and the trial court emphasized that the necessary proof was "not what you wanted him to assume and consider as part of the record, but in his own words, how was it a deviation" (A. 1270). The trial court acknowledged the expert's province to assert "I believe the birthing maneuver was a deviation but, yes, he has an obligation to say how. So in what way, what made it a deviation, he has to say that" (A. 1270-1271). "I don't have anything except the statement from him that yes, it's a deviation. He doesn't explain how" (A. 1272). Inexplicably and without citing any evidence that explained how the birthing maneuvers constituted a deviation from accepted practice or caused the claimed injury, the trial court later changed its mind, and permitted the liability theory to be submitted to the jury (A. 1300): You know what I'm doing, I'm allowing it. You could have a great issue for appeal. I'm allowing you to have that one. I can't — the rest I can't deal with. I can't even -- * * * * MAURO i LILLING i NAPARTYllp Andrew W. Klein, Esq. February 27, 2014 Page 8 And let me just say, I acknowledge, Mr. Cohen [Defense counsel], that it's a stretch. While the trial court ultimately denied Lenox Hill Hospital's post trial motion to set aside the jury's verdict, a fair review of the trial transcript confirms that the trial court doubted the sufficiency of the expert testimony, but deferred to the Appellate Division to assess its sufficiency. Plaintiffemphasizes the purported multiple physical demonstrations ofthe birthing maneuver at issue she claims occurred during trial, and cites to numerous pages in the trial transcript in support of this notion (Plaintiffs Letter Brief at p. 10). Problematic, however, is that, contrary to the plaintiffs assertion, most of the pages cited by plaintiff do not involve a witness physically demonstrating the birthing maneuver. A review of the cited pages reveals that only plaintiff and defense expert, Dr. Prince, demonstrated the maneuver (A. 92, 795). Plaintiff described only how her legs were bent and stretched to the side, which is the McRoberf s maneuver [a routinely used birthing maneuver], and Dr. Prince likewise demonstrated how the patient's legs are held back in the McRoberts maneuver. Moreover, regardless of how many physical demonstrations occurred the fact remains that plaintiff's expert never identified how the birthing maneuver constituted a departure from accepted practice. Dr. Plotnick never saw the plaintiff's demonstration, and admittedly based his opinion on her deposition testimony and counsel's reading of her trial testimony, which described only the utilization of the McRoberts maneuver, which Dr. Plotnick admitted was used routinely in delivery rooms across the nation (A. 532, 557-561). While Dr. Plotnick relied upon the plaintiffs testimony, he never identified anything about the manner the birthing maneuver was performed that constituted a departure from accepted practice. The trial court's assertion that the "jury also had the opportunity to observe the witnesses demonstrate the manner in which the birthing maneuvers were performed and led to the injuries claimed" (A. 20a), is also unavailing. As noted, while the plaintiff demonstrated her position during labor, her MAURO i LILLING i NAPARTYllp Andrew W. Klein, Esq. February 27, 2014 Page 9 demonstration established neither a departure from accepted practice nor proximate cause. Moreover, the jury, as lay people, was not in a position to assess whether the plaintiff's demonstration of the birthing maneuver was consistent with a departure from accepted practice or a proximate cause of the injury, especially given the absence of testimony on this issue from Dr. Plotnick. In other words, there was no expert testimony elicited that could have guided the jury in reaching a conclusion on the propriety of the maneuver utilized. Indeed, the only testimony was that it was a maneuver used routinely in labor and delivery rooms nationwide. Thus, even viewing the evidence in the light most favorable to plaintiff, the Record is barren of any explanation as to how the McRobert's maneuver somehow in this case constituted a departure from accepted practice. The expert's testimony was likewise insufficient to establish proximate cause. Contrary to the plaintiffs contention, the medical chart did not establish causation (Plaintiff's Letter Brief at p. 2). The chart noted the use of a "hyper flexion abduction maneuver" during delivery, which is the McRobert's maneuver. Plaintiff's expert admitted that this maneuver was used routinely across the nation and never indicated that the use of the maneuver was a departure from accepted practice (A. 530). Plaintiff also accuses Lenox Hill Hospital of being unable to "come forward with any non-negligent explanation for the injuries (Plaintiff's Letter Brief at p. 203). In the first instance, the defendants did not have a burden of proof in this case. Secondly, plaintiff's own experts attributed the injury to the size of the infant and the "inordinately small stature of the patient" (A. 514- 515). The plaintiff was under five feet, and had a history of delivering large infants (A. 516-517). Dr. Plotnick noted that "[subsequent pregnancies tend to get bigger," especially with a patient, like plaintiff, with gestational diabetes (A. 517). Dr. Plotnick, opined that the infant, who weighed 10 pounds at birth, was too large for this petite plaintiff to deliver vaginally, and Dr. Segarra should have opted to perform a cesarean section rather than attempt a vaginal delivery (A. 524). MAURO i LILLING i NAPARTYllp Andrew W. Klein, Esq. February 27, 2014 Page 10 Likewise, plaintiff's treating physical medicine rehabilitation physician, Dr. Eric Roth, testified that "the trauma of the large size of the baby passing through the birth canal caused the ligaments which bind the two halves of the pubic bones together were disrupted by the delivery as the baby passed through the birth canal" (A. 1037). For procedural reasons, the claims against Dr. Segarra, including the failure to properly monitor her gestational diabetes and the failure to perform a cesarean section, were barred. Notwithstanding and contrary to plaintiff's assertion, it is clear that her own experts attributed the claimed injury to Dr. Segarra's alleged malpractice. In an obvious effort to divert this Court's attention from Dr. Segarra's culpability, the plaintiff asserts that she was "solely within the exclusive control of the delivery nurse and first year resident" (Plaintiffs Letter Brief at p. 2), which is contrary to the evidence elicited at trial. Dr. Segarra testified that although he had no independent recollection of this delivery, he probably assisted the nurse and resident "with the positioning of [the plaintiff] prior to the birth of her child," indicating"! usually do" (A. 415). Moreover, plaintiff's husband testified that the plaintiff's "legs were still up, and Dr. Segarra helped her with the birth, and there was a noise" (A. 837-838). Thus, it was undisputed that Dr. Segarra was present and observed the birthing maneuver being performed by the Lenox Hill Hospital staff. Thus, not only was there an absence of proof that the birthing maneuver performed constituted a departure from accepted practice, but the Record is barren of any indication that the resident or nurse did anything other than follow Dr. Segarra's orders, further demonstrating the impropriety of attributing independent liability to Lenox Hill Hospital fCerny v. Williams. 32 A.D.3d 881 [2nd Dept. 2006]; see also, Hill v. St. Clare's Hosp.. 67 N.Y.2d 72, 79 [1986]; Toth v. Community Hosp. at Glen Cove. 22 N.Y.2d 255, 265 [1968] [a hospital may not be held liable for injuries suffered by a patient who is under the care of a private attending physician chosen by the patient where the resident physicians and nurses employed by the hospital merely carry out the orders of the private attending physician, unless the hospital staff commits independent acts of negligence or the attending physician's orders are contradicted by normal practice]). MAURO i LILLING i NAPARTYllp Andrew W. Klein, Esq. February 27, 2014 Page 1 1 Finally, plaintiff places great emphasis on a purported alleged "audible crack" plaintiff allegedly heard during the delivery. Notably, however, there was no notation in the plaintiffs chart of any cracking sound (A. 419, 1165, 1180). Moreover, even assuming the injury occurred at the time a cracking noise was heard, this established only the timing of the injury, not that the birthing maneuver was a departure from accepted practice or a substantial factor in causing a pubic symphysis diastasis. As noted, plaintiffs own experts attributed the injury to the size of the infant, which, together with the plaintiffs small stature, should have prompted Dr. Segarra to perform a cesarean section. Thus, if an audible crack occurred, according to plaintiff's own experts, it arose from the vaginal delivery of this large infant, as opposed to the use of a routine birthing maneuver.lo Expert Testimony in Support of the Epidural Block Theory Was Insufficient On the second and remaining theory of liability against Lenox Hill Hospital, the jury was asked whether a departure from accepted medical malpractice occurred in connection with the dosage of the epidural block administered during plaintiffs delivery (A. 1865). In support of this theory, plaintiff elicited the following expert testimony (A. 524-525 [emphasis added]): Q. Now, first, did you find from your review of the records that there was a deviation from the appropriate standard of care with respect to the epidural block given to Mrs. Bustos at Lenox Hill as it pertained to her labor and delivery? % ;jc $: % A. The epidural block given at Lenox Hill was given entirely appropriately. MR. GARSON: I didn't hear that, Judge. MAURO i LILLING i NAPARTYllp Andrew W. Klein, Esq. February 27, 2014 Page 12 THE WITNESS: It was given entirely appropriately upon, first, the doctor's request and then the patient's request. And in this patient it resulted in a very dense block. You never really know exactly how the block is going to go in any patient, and once the density of this block, very dense, was documented, then things should have been done a little bit differently. Plaintiffs counsel asked one question in an effort to connect a purported departure from accepted practice in the dosage of the epidural block to the claimed injury. Dr. Plotnick, however, failed to respond to the question asked, and instead, confirmed that plaintiff was administered "the standard dose" (A. 527). Most significantly, Dr. Plotnick never proffered an explanation as to how Lenox Hill Hospital departed from accepted practice in the dosage of the epidural block or how the epidural could have caused the claimed injury (A. 527 [emphasis added]): Q. Now, what is the result of [the plaintiff] being given that excessive dense epidural block? A. Well, again, I think the doses given to her are the standard doses. Based upon height, weight and criteria the anesthesiologist used in her, it lowered her blood pressure. There is at least one notation of the heart rate going down, and that needed to be reversed, so it was too dense for her at that time, in this patient. Thereafter, Dr. Plotnick referred to the Lenox Hill chart, and identified the notes in the chart that documented the plaintiff's low blood pressure and the decrease in fetal heart rate (A. 528). Plaintiffs counsel then moved on to the next liability theory, and Dr. Plotnick offered no further testimony concerning the administration of the epidural. Most significantly, plaintiff misrepresents her expert's testimony in an obvious effort to remedy her failure to make out a prima facie case. Plaintiff MAURO i LILLING i NAPARTYllp Andrew W. Klein, Esq. February 27, 2014 Page 13 asserts that Dr. Plotnick testified that "because of [plaintiff's] height and weight, the neural block was so strong that it interfered with the blood flow and the pressure had to be brought back up" (Plaintiff's Letter Brief at p. 3). At no time did Dr. Plotnick ever testify that the purported too dense block was the result of administering a "normal" dose to the petite plaintiff, who would have required a lower dose. Quite the contrary, Dr. Plotnick testified "I think the doses given to her are standard doses * * * based upon height, weight and criteria the anesthesiologist used in her" (A. 527). Indeed, Dr. Plotnick's testimony on the administration of the epidural dosage could not have been any clearer: "The epidural block given at Lenox Hill was given entirely appropriately" (A. 525). While plaintiff accurately notes that Dr. Plotnick's testimony established that the plaintiff experienced a drop in blood pressure following the administration of the epidural, this fact did not establish either a departure from accepted practice or any connection to a pubic symphysis diastasis (A. 526- 528). Moreover, even assuming the plaintiff lacked an urge to push as a result of a too dense epidural, the Record is barren of any testimony connecting a purported lack of urge to push to a pubic symphysis diastasis (A. 529). CPLR 4515 Fails to Cure the Insufficiency of the Evidence Plaintiff argues that the Appellate Division's decision is contrary to CPLR 4515. In the first instance, the plaintiff's argument that her expert's testimony should have been deemed sufficient pursuant to CPLR 4515 was improperly raisedfor the first time in her motion to reargue and/or for leave to appeal to this Court. Plaintiff had the opportunity, but failed to raise this argument on appeal in the Appellate Division. "[T]his Court with rare exception does not review questions raised for the first time on appeal (Bingham v. New York City Transit Auth.. 99 N.Y.2d 355, 359 [2003]; Salino v. Cimino. 1 N.Y.3d 166 [2003]). Even if the merits of this argument are considered, CPLR 4515 does not constitute a basis to disturb the Appellate Division's Decision and Order. MAURO i LILLING i NAPARTYllp Andrew W. Klein, Esq. February 27, 2014 Page 14 Contrary to the plaintiffs contention, the fact that a factual basis from the record was read to Dr. Plotnick immediately before the questions on deviation and causation were asked fails to remedy the insufficiency of the expert's testimony. While Dr. Plotnick may have been familiar with the factual circumstances surrounding the delivery and the medical records created at the time of the delivery, the insufficiency of his testimony was not the factual basis, but rather, the absence of any medical explanation as to how what he described as a "routine" birthing maneuver could have constituted medical malpractice in this case. The application of CPLR 4515 does not alter the insufficiency of the plaintiffs expert's opinion. While CPLR 4515 indicates that the use of the hypothetical question is no longer mandatory and also relaxes the timing as to disclosure of the factual basis of the expert's opinion, it does not have the effect of remedying conclusory or speculative expert testimony (Alvarado v. Miles. 9 N.Y.2d 902 [2007]; Amatulli bv Amatulli v. Delhi Const. Corp.. 77 N.Y.2d 525, 533 [1991] [an expert's "bare conclusory assertions" are insufficient]). Indeed, in People v. Jones (73 N.Y.2d 427 [1989]), this Court affirmed the dismissal of a conviction based upon the insufficiency of an expert's testimony, despite the State's compliance with CPLR 4515. In Jones, an essential element of the crime charged was that the defendant was in possession of a controlled substance. The State's expert testified that the Darvocet tablets possessed by the defendant were a controlled substance, but "was not asked nor did she provide the essential element to answer the determinative question as to what controlled substance, if any, was contained in the tested tablets" (73 N.Y.2d at 429). This Court noted that the expert's "particular leap does not necessarily succeed in chemistry, logic or law because neither the jury nor we as a reviewing court governed by a record of evidence have been given anything to bridge the gap" (id. at 43 1). This Court described the expert's testimony as "a bald conclusion," and rejected the State's assertion that the insufficiency should have been cured by the defendant on cross examination, reasoning that such would "shift functionally the burden of proof as to the core element of the crime itself (id. at 430). MAURO i LILLING i NAPARTYllp Andrew W. Klein, Esq. February 27, 2014 Page 15 Likewise, here, Dr. Plotnick testified that a routine birthing maneuver somehow constituted a departure from accepted practice in this case and caused the claimed injury. He failed, however, to proffer any explanation, medical or otherwise, that would "bridge the gap" between the facts as posed and his bald opinion, which was barren of any medical explanation. Moreover, contrary to the plaintiff's contention, it was not the defendant's burden to elicit an explanation on cross examination to cure the deficiency in the plaintiff's case (see. Parker v. Mobile Oil Corp.. 7 N.Y.3d 434, 449-450 [2006][Expert testimony proffered by plaintiff "fail[ed] to make [the] connection" "between exposure to gasoline containing benzene as a component and AML"]). This Court's decision in Tarlowe v. Metropolitan Ski Slopes (28 N.Y.2d 410 [1971]), does not dictate a different conclusion. In Tarlowe. the issue was whether there was a failure of proof because plaintiffs expert did not develop the technical foundation for his opinion. The evidence was undisputed that a ski binding's functioning toe release should release at 75 to 100 foot pounds. The plaintiff's expert opined that the toe release at issue was not properly functioning based upon his estimation that plaintiff's fall exerted 325 foot pounds of pressure on the binding, but the toe release did not release. The critical issue was the "technical basis for his computation" (28 N.Y.2d at 413). This Court held that the facts assumed by the expert were fairly inferable from the evidence presented, and that the expert was not required to elaborate on his computation. Here, however, neither a technical computation nor the factual support of Dr. Plotnick's opinion were at issue. Rather, the issue was whether a "yes" in response to the question of whether the hospital departed from accepted practice and whether such departure caused the claimed injury was sufficient to set forth a prima facie case of medical malpractice. The Appellate Division appropriately concluded that, under the circumstances of this case, it was not enough given the expert's testimony that the birthing maneuver was "routine," and used in labor and delivery rooms across the nation. With respect to the epidural dosage, the expert's unequivocal testimony that a "standard dose" of the epidural was administered rendered the expert's testimony insufficient to support a medical malpractice claim. MAURO i LILLING i NAPARTYllp Andrew W. Klein, Esq. February 27, 2014 Page 16 In sum, nothing in the case law or CPLR 4515 has altered the well-settled principle of law that an expert offering only conclusory assertions and mere speculation concerning medical treatment is insufficient to support a liability finding in a medical malpractice action (Lynn G. v. Hugo. 96 N.Y.2d 306 [2001]; Romano v. Stanley. 90 N.Y.2d 444, 451-52 [1997]; Currv v. Dr. Elena Vezza Physician. P.C.. 106 A.D.3d 413 [1st Dept. 2013]: Rivera v. Greenstein. supra. 79 A.D.3d 564, 568 [1st Dept. 2010]; Rodriguez v. Montefiore Med. Ctr.. 28 A.D.3d 357 [1st Dept. 2006]; Bullard v. St. Barnabas Hosp.. 27 A.D.3d 206 [1st Dept. 2006]). CONCLUSION The plaintiffs case was dismissed not based upon a misapplication of any law or on the weight of the evidence, but based upon the well-settled law that a medical malpractice action must be supported by expert testimony that is neither conclusory nor speculative. A fair review of the expert testimony proffered in this case appropriately led the Appellate Division to unanimously conclude that the plaintiffs expert testimony, which amounted to a "yes," in response to whether routine birthing maneuvers constituted a departure from accepted practice and a proximate cause of the claimed injury, was "speculative and conclusory and without probative force" (Bustos v. Lenox Hill Hosp.. supra, 105 A.D.3d at 541 [1st Dept. 2013]). Likewise, the expert's testimony that the epidural dosage was "standard" and "entirely appropriate" was fatal to her claim that Lenox Hill Hospital departed from accepted practice in the dosage of the epidural. Moreover, contrary to the plaintiffs assertions, neither the denial of summary judgment nor the alleged absence of a non-negligent explanation for the claimed injury justify the jury's verdict. A fair review of the expert testimony proffered by plaintiff support's the Appellate Division's conclusion as to its insufficiency. In addition, plaintiff's own experts attributed the injury to the failure of the treating OB/GYN, Dr. Segarra, to perform a cesarean section. While plaintiff may have had viable claims against Dr. Segarra in this regard, they were dismissed on procedural grounds prior to trial, and, at trial, plaintiff failed to proffer the requisite expert testimony in support of the MAURO i LILLING i NAPARTYllp Andrew W. Klein. Esq. February 27, 2014 Page 17 remaining claims against Dr. Segarra. Lenox Hill Hospital staff merely carried out Dr. Segarra's orders, and, as noted, such conduct cannot form the basis of liability against the hospital. Based upon all of the foregoing, together with the Briefs filed in the Appellate Division, First Department, it is respectfully submitted that the certified question posed by the Appellate Division: "Was the order of this Court, which reversed the order of the Supreme Court, properly made?" should be answered in the affirmative. Respectfully, Caryn L. Lilling CLL/klu cc: Cheryl R. Eisberg Moin, Esq. STATE OF NEW YORK) ss.: COUNTY OF NASSAU ) I, Karen Unger, being sworn, say: I am not a party to the action, am over 18 years of age and reside in Queens, New York. On the 27th day of February, 2014, I served the within LETTER BRIEF by depositing a true copy thereof enclosed in a post-paid wrapper in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State, addressed to each of the following persons at the last known address set forth after each name: HILL & MOIN LLP Attorneys for Plaintiffs-Appellants MARIA PILAR BUSTOS and CESAR BUSTOS 2 Wall Street, Suite 301 New York, NY 10005 (212) 668-6000 Sworn to before me this 27th day of February, 2014. £g&A-^ Notary Publi(?5 KAREN UN