Summary Judgment In Westchester County
HPM&B recently obtained Summary Judgment on behalf of a Medical Clinic located in Westchester County in a case involving the alleged failure to provide anticipatory guidance to the plaintiff-mother relative to lead paint exposure resulting in alleged neurological deficits to the infant-plaintiff. The child had been a pediatric patient of the clinic since the time of his birth. The records documented the fact that anticipatory guidance was given to the plaintiff-mother beginning at 9 months relative to the risk of lead paint exposure and the child also had a normal lead level at the age of one year. The child was not brought back for his routine well baby visits in either 15 months, 18 months and 24 months of age. However, the child had several sick visits between the ages of 1 and 2. A lead level obtained at 26 months was severely elevated and the child was diagnosed with cognitive deficits.
In support of the Motion for Summary Judgment, HPM&B submitted affidavits from two non-party treating physicians who had evaluated the child at the clinic who opined that they provided the plaintiff-mother with anticipatory guidance relative to lead pain exposure in accordance with good and accepted practice. In addition, HPM&B relied on the deposition testimony of the plaintiff-mother in which she conceded that she was aware of the medical risks of lead paint exposure for at least ten years preceding the birth of her child.
In opposition, plaintiff submitted an affidavit from a Board Certified pediatrician opining that there were numerous deviations from good and accepted practice, and that the pediatricians associated with the clinic failed to provide the plaintiff-mother with anticipatory guidance between the ages of 1 and 2 at either routine office visits or scheduled office visits.
In reply, HPM&B argued that plaintiff’s expert’s opinion was contradictory in nature inasmuch as the expert miscited the medical literature he relied upon to formulate his opinions, and because plaintiff’s expert set forth conflicting opinions as to whether anticipatory guidance should be provided on each and every visit, or only at unscheduled visits. In addition, HPM&B argued that plaintiff’s counsel’s expert never rebutted the deposition testimony of the plaintiff-mother in which she conceded that she was aware of the risk associated with lead paint exposure before her child was born.
The Supreme Court, Westchester County (Loehr, J.) concluded that plaintiff did not raise a triable issue of fact and dismissed the complaint.
HPM&B Partner Vincent L. Gallo represented the Medical Clinic on the motion.