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A medical malpractice action has been filed by the plaintiffs


A medical malpractice action has been filed by the plaintiffs, individually as parents and natural guardians of an infant, where they seek to recover, inter alia, damages that the infant plaintiff suffered at birth (birth injury or birth injury accident) as a result of the defendants’ alleged negligence.

On 28 May 2010, the court granted the defendants’ summary judgment motion dismissing the complaint against them, finding that although the plaintiffs established that there were in fact issues of fact as to whether the defendants had committed medical malpractice, the plaintiffs failed to demonstrate the existence of a material issue of fact with respect to whether the defendants’ alleged negligence caused the infant plaintiff’s injuries.

Hence, the plaintiffs seek reargument of this court’s decision insofar as the complaint was dismissed as against eight (8) of the defendants.

A motion for reargument pursuant to CPLR (Civil Practice Law and Rules) must be “based on matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but may not include matters of fact not offered on the prior motion.” Reargument may not be obtained based upon “a new theory of liability not previously advanced.” To obtain reargument, the movant must establish that the court misapprehended or overlooked a matter of fact or law. Absent such a showing, reargument does not lie.

Many of the plaintiffs’ arguments are now being made for the first time; for instance, that by failing to address the cause of the plaintiff-infant’s global deficits and failing to establish the lack of proximate cause, the defendants failed to establish their prima facie entitlement to summary judgment. Such arguments raised for the first time are not permitted in support of reargument and are rejected.

Moreover, this Court did not err in rejecting the plaintiffs’ attorney’s citation to medical literature in an attempt to establish a foundation for their expert’s opinions and theories as generally accepted in the medical community. It is the experts themselves who must establish the reliability of their theories, not counsel.

Nevertheless, in reviewing the submissions, the Court finds that reargument lies. While the plaintiffs failed to establish the existence of an issue of fact as to whether the defendants’ care of the plaintiff-mother caused the plaintiff-infant’s left hemiparesis, the plaintiffs have established the existence of an issue of fact as to whether the defendants’ care of plaintiff-mother caused the plaintiff-infant’s global deficits due to a blood flow problem and concomitant oxygen deprivation, resulting in his brain injury.

The plaintiffs’ “California expert,” an OBGYN, opined that the defendants’ departures consisted of a failure to properly manage a progressive hypertensive/vasospastic disorder in plaintiff-mother which led to severe preclampsia/eclamptic crises with associated “superimposed fetal hypoxia, and cerebral ischemia on a child already chronically compromised and vulnerable.” The expert further stated that these departures led to “fetal acidosis and a brain insult and brain injury including the right cerebral hemisphere resulting in a left hemiplegia and developmental delays” which “were avoidable with good care.”; that all objective data including an eclamptic crisis, fetal bradycardia (low heart rate and severe metabolic acidosis at birth) confirms a hypoperfusion (ischemia/decreased blood flow) which impacted the infant plaintiff’s brain; that “eclamptic seizures are associated with excessive uterine activity. Thus, the infant plaintiff was at serious risk of ischemic brain insult and damage which event evolved over some two plus hours and included some compensation in a child already vulnerable and compromised. The compensation would be an “effort” by the child’s intrinsic adaptive mechanism to maintain adequate brain blood perfusion. Inevitably, there will be decompensation as revealed by the bradycardia. The decompensation would be associated with ischemic brain hypoperfusion which in this case is the most likely cause of Harrison’s ischemic brain injury and disability.”

Furthermore, the plaintiffs’ “New York expert,” a pediatric neurologist, offered a consistent causation theory. He stated that the infant’s brain injuries were the result of the chronic and then superimposed stresses associated with eclampsia experienced by plaintiff-mother on 29 April 2004″ and that “a generalized disturbance of systemic circulation resulted in impaired perfusion of the brain in the infant plaintiff while his mother was eclamptic, producing the ischemic brain injury.”

What’s more, even the defendants’ expert who practices in Long Island and Queens recognized that global deficits can result from hypoxic ischemic encephalopathy.

It has not been established that there is always easily ascertainable, objective evidence of the producing cause of that type of injury. Indeed, absent from the defendants’ moving papers is an assertion that the cause of the brain insult leading to these deficits must be traceable by objective evidence such as an MRI. Thus, the explanations by plaintiffs’ experts for the cause of global deficits cannot be ruled out as a matter of law.

The opinion made by the defendants’ experts that the infarct identified on the infant plaintiff’s MRI is “inconsistent with” diffuse or global hypoxia does not conclusively establish the absence thereof. Moreover, the plaintiffs have established that it is not entirely clear from the record that the infarct was “spontaneous” and unrelated to the plaintiff-mother’s care and eclamptic seizure, even if it had been a producing cause of the deficits later diagnosed.

Reliability and admissibility are adequately established where, like here, an expert lays a foundation for their theory of causation within generally accepted principles of obstetrical medicine that is not novel or challenged. The lack of textual authority directly on point or cases or studies under exactly parallel circumstances is relevant to the weight to be given the opinion, but not its admissibility.

Accordingly, reargument is granted; that the plaintiffs established the existence of a material issue of fact regarding proximate cause; that the plaintiffs established the existence of a material issue of fact as to whether the acts or omissions of defendants caused the infant plaintiff’s injuries. Hence, with the exception of New York University Medical Center, the defendants’ motions for summary judgment dismissing the complaint against them are therefore denied.

Birth injuries are heart-breaking. While some of these injuries occur for a variety of reasons, in some instances, negligence is attributable to the attending physician or surgeon. When negligence exists as the proximate cause of the injury, a suit for medical malpractice is proper. For exceptional legal representation, contact Stephen Bilkis & Associates. We have a line of the best lawyers in the metro consisting of our New York City Medical Malpractice Attorneys, New York City Brain Injury Attorneys, and the like.

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