Summary Judgment Victory
HPM&B won summary judgment dismissal for a pediatrician in a high-exposure brain damaged baby case venued in Supreme Court, Richmond County. Plaintiff claimed that the defendants failed to timely diagnose and treat cytomegalovirus (CMV) in the infant-plaintiff resulting in profound neurological deficits. HPM&B overcame plaintiff’s opposition, which was supported by three expert affirmations including a pediatric neurologist, neuroradiologist, and neonatologist. HPM&B successfully argued that the defendant pediatrician appropriately referred the infant to a pediatric neurologist at the very first pediatric office visit given the infant’s documented diagnoses of intrauterine growth restriction, small for gestational age status, jaundice, and microcephaly, and that the pediatrician appropriately deferred to and relied on the pediatric neurologist’s evaluation of the infant’s condition and recommendation for follow-up testing including brain imaging. With regard to causation, HPM&B successfully argued that based on the infant’s initial brain MRI, the infant was infected with CMV early in the pregnancy resulting in severe, irreversible brain damage prior to birth. HPM&B also established that the infant was diagnosed with a debilitating genetic disorder, which, in combination with CMV, caused the brain damage, developmental delays, microcephaly, and other neurologic deficits. The Court found that plaintiff’s opposition was speculative and failed to rebut the key aspects of the defendant pediatrician’s arguments. Accordingly, the motion was granted in its entirety.