New York State Court of Claims

New York State Court of Claims

KELLY v. THE STATE OF NEW YORK, #2006-016-078, Claim No. 107852, Motion Nos. M-70982, CM-71965


Motion for summary judgment dismissing medical malpractice claim was granted in part and denied in part. Cross-motion for order striking answer and granting default judgment because of alleged spoliation of evidence of fetal monitoring strips was denied.

Case Information

ORVILLE KELLY, Individually and as father and natural guardian of CONROY KELLY, an Infant
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Alan C. Marin
Claimant’s attorney:
Gamiel A. Ramson, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Mary Y.J. Kim, Esq., AAG
Third-party defendant’s attorney:

Signature date:
November 29, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves for summary judgment dismissing this claim, and claimant cross-moves for an order striking the answer and entering a default judgment because of the alleged spoliation of fetal monitoring strips. In the underlying claim, it is alleged that during the May 16, 2001 delivery of Conroy Kelly, defendant negligently failed to use a functioning external fetal monitor, and instead negligently attached an internal fetal monitor. The parties have differing views of the facts of this case. Claimant essentially maintains that during delivery, Conroy Kelly “suffered a scalp wound that became infected and caused physical, emotional and developmental and cognitive injuries because of the negligent application of the internal probe used to measure the heartbeat of the baby during delivery.” See ¶4 of the June 8, 2006 affidavit of Orville Kelly, annexed to claimant’s cross-moving papers (the “Kelly Aff.”).

Claimant Orville Kelly, Conroy’s father, was present for the delivery. He states that doctors and staff first attempted to use an external fetal monitor, but when they failed to get a reading, they attempted to use an internal fetal scalp monitor which was attached to the baby’s head. According to Mr. Kelly, he discovered a wound on Conroy’s scalp “on his second day of his life, and though we inquired about it during the hospital stay, we never got a satisfactory answer . . .” Kelly further contends that when Conroy was brought back to the hospital six days later on May 22, 2001 and again on June 11, 2001, “[t]he hospital and doctors never prescribed antibiotics for the wound or did any tests on it whatsoever.” Kelly maintains that “Conroy has suffered greatly. Initially in the first month of his life he had fever, infection, [pus] and swelling. Through infancy, he had crying bouts at night and would sit and stare and was inactive . . . To this day, Conroy has speech problems . . . At the place where the probe was placed on his head, Conroy has a scar, and he is very sensitive about the spot, never allowing anybody and anything to go near it.” Id., ¶¶6, 9, 10 and 13-15.

Defendant disputes that an internal fetal monitor was used, noting that the medical records indicate that an external fetal monitor was used. Defendant also contends that the medical records show the following: that prior to discharge, Conroy was physically examined and there were no abnormalities; that six days after birth, Conroy was brought back to the hospital with complaints of a “small swelling” on the back of his head, and that when examined, there was “no evidence of infection or inflammation” or fever; and that on June 11, 2001, Conroy was again seen at the hospital, and it was reported that there had been “one episode of purulent discharge one week prior,” but he had no fever, vomiting, diarrhea or sleep disturbances, and examination of the scalp laceration revealed no swelling, tenderness or infection. See ¶¶9-10 of the November 23, 2005 affirmation of Mary Y.J. Kim, annexed to defendant’s moving papers (the “Kim Aff.”).

Claimant has submitted photographs which defendant concedes “purportedly depict the infant Claimant with an approximately 3/8 inch scab-like formation on the back of his head.” See ¶11 of the Kim Aff. In addition, the report of a doctor who later treated Conroy states that “it appears that a fetal scalp monitor was attached and that this left a small scalp defect, which became infected and the child had swelling and infection for the first month of life.” See exhibit O to defendant’s moving papers. In addition, claimant’s expert states that “[t]he defendant’s attempted use of a fetal scalp monitor is consistent with the wound exhibited in the photographs . . . and the records from the follow-up examinations . . . and the records of . . . the treating pediatric neurologist.” See ¶8 of the June 13, 2006 affidavit of Leonard M. Roberts, M.D., annexed to claimant’s moving papers (the “Roberts Aff.”).

In view of the foregoing, I find that issues of fact remain as to whether an internal fetal monitor was used here. In addition, based on the submissions of the parties, issues remain as whether any such use of an internal fetal monitor would have been a departure from accepted medical practice.

As to Conroy’s injuries, it is the opinion of defendant’s expert that “the neurological injuries stated in [claimant’s] bill of particulars could not conceivably have been caused by the alleged scalp laceration . . .” See the November 11, 2005 affidavit of Sandra L. Forem, M.D., annexed to defendant’s moving papers. Claimant’s expert states that because of the use of an internal monitor, Conroy developed an abscess, which “developed into a scar and the infant is very sensitive to the spot of the wound to the present date.” See ¶¶17-18 of the Roberts Aff. However, claimant’s expert nowhere states that any such wound, abscess or scar could or did cause any of the alleged cognitive or developmental disabilities. Moreover, claimant’s own treating doctors state that the scalp condition “is unlikely to be related to any long term complications” and that “I believe Conroy is a normal, healthy infant and should have no problems of a neurological nature.” See the treating physicians’ reports annexed to defendant’s moving papers as exhibits O and P.

In view of the foregoing, defendant is entitled to summary judgment dismissing this claim -- but only with regard to the allegations of cognitive and developmental injuries, not as to the wound itself or any resulting abscess or scarring.
* * *
With regard to the alleged spoliation of fetal monitoring strips, I find that claimant has failed to demonstrate that any such strips existed. Orville Kelly states in his affidavit that:
When Dr. Su and other defendant employees failed to get a reading from the external monitor, Dr. Su attempted to use an internal probe or fetal scalp monitor by attaching it to the top of the baby’s head . . . Everything was very rushed. The baby was coming out . . . at the same time that Dr. Su was inserting the internal probe. I could see the top of Conroy’s head as he was coming out and Dr. Su was pushing in with the probe.”

See ¶6 of the Kelly Aff.

Moreover, claimant’s own expert states that:
There is no note in the nurse’s notes that any fetal monitor was hooked up to the monitor strip, and the testimony of the plaintiff father and the records taken together indicate that there was no chance to attach the internal device to the monitor because everything was happening too fast.

See ¶13 of the Roberts Aff.
* * *
For the foregoing reasons, having reviewed the submissions[1], IT IS ORDERED that motion no. M-70982 be granted with respect to cognitive and developmental damages, but denied with respect to the scalp wound and any subsequent abscess and scarring. IT IS FURTHER ORDERED that cross-motion no. CM-71965 be denied. In view of the foregoing, it is unnecessary to reach the issue of whether the September 6, 2006 order of the Hon. David I. Schmidt in the related Kings County Supreme Court action has collateral estoppel effect here.[2]

November 29, 2006
New York, New York

Judge of the Court of Claims

  1. [1]The following were reviewed: defendant’s notice of motion with affirmation and affidavits in support and exhibits A through P; claimant’s notice of cross-motion with affirmation and affidavits in support and exhibits 1 through 5; defendant’s “Reply Affirmation/Affirmation in Opposition to Cross-Motion” with attached affidavit and undesignated exhibit; claimant’s “Reply Affirmation” with attached affidavit and undesignated exhibits: defendant’s letter dated September 18, 2006 with attached order; claimant’s letter dated September 26, 2006; defendant’s letter dated September 27, 2006; claimant’s letter dated September 29, 2006; and claimant’s letter dated November 17, 2006 with attached decision.
  2. [2]Such order states in relevant part that “[t]he motion for summary judgment by defendants is granted as to the cognitive and developmental damages alleged by the plaintiff except for scab & possible scar which remain in the case. The cross-motion by plaintiff for spoliation of evidence of the fetal monitor strips is denied.”