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This is an action sought by the defendants for the court to dismiss the complaint based


This is an action sought by the defendants for the court to dismiss the complaint based on a summary judgment. The infant plaintiff, represented by her mother and natural guardian, sought to recover damages for personal injuries allegedly sustained by the infant plaintiff due to lead poisoning, negligence and medical malpractice committed by the defendants. The court dismissed the complaint and ruled in favor of the defendants.

After her birth, the infant plaintiff resided in an apartment with a peeling paint condition with her mother and father. The infant plaintiff was seen at the hospital emergency room of one of the defendants for asthma and lead blood testing. The result of the lead blood testing showed that it is within the normal range. Subsequently, the infant plaintiff went to another hospital, one of the defendants in this case, for the treatment of skin problems. The mother was directed to bring the infant plaintiff back to see physician for a well-child visit in one month. On October 17, 2002, at which time the infant plaintiff was three years, two months, of age, she underwent a complete examination as well as a development assessment, which indicated that she had met her three-year-old milestones appropriately. The infant plaintiff’s blood was drawn for lead testing at this visit, and the result showed a blood lead level within the normal range. On 2003, when the infant plaintiff was in Connecticut, it was diagnosed that her lead blood content elevated to 24 ug/dL, i.e. above the normal range. Thereafter, the infant plaintiff together with her parents returned to their apartment and had a regular check up with the defendant’s hospital again.

On September 27, 2003, the New York City Department of Health inspected the apartment where the infant plaintiff lives and found lead paint hazards on five painted surfaces.

This prompted the plaintiff to institute an action alleging injury claiming that had the defendant performed a risk assessment on October 17, 2002, she would have learned t of the high risk for lead poisoning because of the deteriorating and peeling paint in her apartment. She opined that such failure to perform a risk assessment constituted a departure from good and accepted medical practice, and a departure from the standard of medical care. The mother stated that she was never provided with information concerning the actions which she could take to prevent the infant plaintiff from becoming lead poisoned, and that she has now learned that this information is called anticipatory guidance for lead poisoning. She states that if she had been given anticipatory guidance for birth injury, she would have known not to vacuum the floors in trying to get rid of the paint chips and paint dust, but would have wet mopped all surfaces instead.

The court ruled that a summary judgment dismissing the infant plaintiff’s complaint as against the defendant is warranted.

According to the Suffolk court, the fact that the defendant, in providing anticipatory guidance, did not specifically discuss how the mother should clean her apartment, cannot be a basis upon which to predicate liability under the birth injury accident. At the October 17, 2002 visit to the defendant, the infant plaintiff did not test positive for lead poisoning, and, thus, did not indicate the need for this specific instruction.

The court held that the 1991 CDC Statement (Statement by the Federal Centers for Disease Control) with regard to mopping is only listed as an example of a simple way parents can reduce their children’s exposure to lead. It does not prohibit the use of vacuum cleaners, and, in fact, instructs that vacuum cleaners with agitators remove dust from rugs more effectively than vacuum cleaners with suction only. The 1991 CDC Statement is not meant to create an enormous burden on primary pediatric health care providers. In addition, 10 NYCRR 67-1.2 (a) (7) simply “requires reasonable efforts to ensure the provision of risk reduction education.”

The court reiterated that the 1991 CDC Statement provides that the urgency and type of follow-up depends on the screening blood lead test result. Here, at the time of the infant plaintiff’s first routine well-child on October 17, 2002, the infant plaintiff had previously had two negative lead test results. On that October 17, 2002 visit, the infant plaintiff was given anticipatory guidance and was screened and tested for lead poisoning.

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