Appellate Practice Group Obtains Reversal and Dismissal Of Obstetrical Malpractice Action
In Fernandez v. Moskowitz, __ A.D.3d __, 925 N.Y.S.2d 476 (1st Dep’t 2011), the Appellate Division, First Department reversed the denial of a summary judgment motion and dismissed all claims against HPMB’s client, a major medical center in Manhattan, and the codefendant obstetrician-gynecologist who delivered the infant-plaintiff by emergency Caesarean section. The Appellate Division agreed with our position that plaintiffs failed to adequately rebut defendants’ prima facie showing that the infant plaintiff did not suffer a hypoxic-ischemic brain injury related to his birth. Nor did plaintiffs’ experts adequately rebut defendants’ additional showing that the infant’s genetic visual impairments could not be causally related to an alleged failure to diagnose intrauterine growth retardation, a prolapsed umbilical cord and/or failing to lift the infant’s head off of the umbilical cord prior to an emergency cesarean section. Plaintiffs were seeking multi-million dollars in damages.
The court noted that the infant-plaintiff developed normally during the first year of his life and two MRI’s, which were ordered because of an eye condition, yielded normal results. Defendants’ experts contended that infant’s developmental and cognitive delays were the result of his eye condition, which is a genetic visual impairment that has a known association with autism. Additionally, defendants’ experts cited the infant’s normal Apgar scores and cord blood gases as further evidence that he did not suffer a brain injury at birth.
The Appellate Division rejected plaintiffs’ experts opinions that the developmental delays were due to a brain injury, and that the brain injury occurred as a result of intrauterine growth restriction (IUGR) and a prolapsed umbilical cord, the former which allegedly should have been diagnosed prenatally and the latter of which allegedly was caused by an improper pelvic examination during labor. It noted that plaintiffs’ obstetrical expert, Dr. Bruce Halbridge, failed to refute the normal MRI results or address the fact that the infant did not exhibit signs of delay until he was two years old. The court also observed that Dr. Halbridge and plaintiffs’ expert pediatrician and neurologist Dr. Trifiletti offered merely conclusory opinions that the infant’s developmental delays are not related to his genetic visual impairment. Finally, the court noted that the experts offered no medical support for their assertion that the “only reasonable etiology” is a brain injury that occurred as a result of IUGR and a prolapsed umbilical cord.
The appeal was handled by Dan Ratner and James Navarro of HPM&B.