Two Summary Judgment Dismissals In New York County

Vincent GalloPaul Haberman

HPM&B recently obtained summary judgment dismissals on behalf of a university medical center in Manhattan.

In the first action, it was alleged that the infant-plaintiff suffered brain damage as a result of a fall from his bed. The infant-plaintiff had been admitted to the hospital with a diagnosis of endocarditis. As the nursing staff was transferring him to another room, he fell and struck the right side of his head. Plaintiff experienced seizures after the fall. Subsequent CT scan imaging revealed the presence of numerous hemorrhagic legions on the left side of the brain.

In bringing suit he attributed his seizure activity and other cognitive deficits to the hospital's negligence in allowing him to fall and strike his head. Relying upon an affidavit of an expert neuroradiologist, HPM&B moved for summary judgment on the ground that the brain bleeds were not caused by the fall, but rather the result of preexisting emboli related to plaintiff's endocarditis. HPM&B showed that the brain bleeds preexisted the accident by as long as fourteen days. The Supreme Court, New York County granted summary judgment to the hospital because plaintiff's expert in pediatrics and neurology failed to rebut the hospital's expert neuroradiologist's opinion that the bleed was older than the fall. The court also deemed speculative the plaintiff's expert's opinion that the fall somehow exacerbated the preexisting hemorrhage. The hospital was represented by HPM&B partner Vincent Gallo and associates Anna Berent and Adam Dlugacz.

In the second action, plaintiff claimed she suffered a footdrop as a result of improper positioning during a hysterectomy. In support of a summary judgment motion, HPM&B submitted an affidavit by a board-certified gynecologist who opined that plaintiff was correctly positioned during the surgical procedure and that a subsequent MRI and nerve conduction study revealed no evidence of a correlation between the surgery and the alleged neurological damage. Moreover, plaintiff did not dispute the fact that she was advised of the possibility of nerve damage relative to the informed consent claim. The Supreme Court, New York County granted the motion on behalf of the defendant hospital because plaintiff's expert, a neurologist, did not explain the mechanism of the injury or the correlation between his finding of nerve damage and the surgery. Mr. Gallo and HPM&B associate Paul Haberman represented the hospital.