Defense Verdict In New York County

Charles L. Bach, Jr., assisted by senior associate Erin K. Kelley, successfully defended a pediatric neurologist in a complex malpractice case in which the plaintiff mother alleged that the treating neurologist failed to diagnose a Chiari I malformation in her then 14-year-old son.

The plaintiff contended that if the defendant had made the proper diagnosis, her son, who suffered severe chronic daily headaches, would have undergone surgical intervention earlier, which would have been significantly less complicated and would have relieved his headaches. Instead, plaintiff’s decedent was diagnosed with a Chiari I malformation by a non-party neurosurgeon almost three years after he had discontinued treatment with the pediatric neurologist and underwent a decompression surgery that ultimately failed to relieve his headaches. He also underwent several subsequent surgeries and suffered numerous post-operative complications, including but not limited to meningitis, a subdural empyema, infections and pneumonia. In addition, his debilitating headaches continued to persist. The decedent died in January 2011 at the age of 25.

Prior to trial, plaintiff obtained a ruling that the pediatric neurologist had irretrievably lost the majority of his office notes thereby entitling plaintiff to a unique spoliation charge to the trial jury.

At trial the defense established that the 14-year-old had chronic daily migraines and these were not caused by a Chiari malformation. Treatment required changes in lifestyle that plaintiff was unwilling to adopt. Through cross examination of plaintiff’s experts, including the treating neurosurgeon who performed the decompression for a Chiari malformation, and through the testimony of defense experts in pediatric neurology, pediatric neurosurgery and pediatric neuroradiology, the defense established that there was no obstruction of flow of cerebrospinal fluid, that there was at most cerebellar tonsillar ectopia and plaintiff’s decedent never should have undergone neurosurgical decompression of his posterior fossa because the correct diagnosis was chronic daily migraines. The defense also emphasized that a cranial MRI performed seven months before plaintiff’s decedent began treating with the defendant and another one performed almost two years after the decedent ceased treating with him revealed no evidence of this alleged brain malformation.

The plaintiff alleged “nefarious conduct” on the part of the defendant with respect to the missing progress notes and a charge that was extremely adverse to the defendant was consequently given to the jury. In summation, plaintiff’s counsel asked the jury to award his client $15 million.

On March 13, 2014, the jury returned a unanimous defense verdict after less than an hour and a half of deliberations.