Summary Judgment in New York County Obstetrical Malpractice Case

Representing a major New York City medical center and two obstetrician-gynecologists, HPM&B successfully moved for summary judgment dismissal of all claims on behalf of an infant who was born prematurely with severe neurological damages. HPM&B attorneys relied on the legal concept that a medical caregiver is not liable for medical malpractice if the caregiver exercises judgment in choosing between two, equally accepted forms of treatment.

The infant-plaintiff’s mother was diagnosed with an incompetent cervix during the 21st week of her pregnancy. Defendant physician chose to treat the mother with a steroid, progesterone, and serial ultrasounds. Two weeks later, after a trial of progesterone, an ultrasound revealed that the cervix was fully open, and plaintiff’s mother began experiencing irregular contractions. Plaintiff’s mother requested a cerclage and the Defendant physicians informed her that a cerclage at that time might prolong the pregnancy but would also put her at risk of cervical damage, infection, and an extremely premature delivery. No cerclage was performed, and the infant was born at 23 and 4/7 weeks.

In support of the motion, defendants’ expert opined that plaintiff’s mother was not a candidate for cerclage placement and that progesterone vaginal suppositories was the recommended standard of care for a patient with cervical shortening and no history of prior spontaneous preterm deliveries. Plaintiff’s expert offered an opinion that cerclage is preferable to progesterone “because a surgical stitch is stronger than a medication,” but the expert did not expressly state that defendants departed from good and accepted medical practice in recommending progesterone over cerclage.

Relying on the legal concept that a doctor is not liable if he exercises judgment in choosing one medically accepted alternative procedure instead of another accepted alternative, the court awarded summary judgment to defendants.

Defendants were represented by HPM&B senior partner Elizabeth Cornacchio and senior associate Adam M. Dlugacz.