Questions of Fact Raised Whether Plaintiff’s Infant-Daughter’s Physical and Mental Deficiencies Were Caused by Inadequate Medical Treatment Prior to and During Birth, Despite Indications Plaintiff’s Daughter Was Born Healthy

The First Department, in a full-fledged opinion by Justice Acosta, reversed Supreme Court and denied defendant’s motion for summary judgment in a medical malpractice case.  The First Department laid out in great detail the plaintiff-mother’s experts’ opinions about the causes of the her infant-daughter’s (Kailen’s) mental and physical deficiencies and determined questions of fact had been raised about the adequacy of medical treatment prior to and during Kailen’s birth, in spite of indications of Kailen’s good health at the time of birth:

A defendant in a medical malpractice action establishes prima facie entitlement to summary judgment by showing that in treating the plaintiff, he or she did not depart from good and accepted medical practice, or that any such departure was not a proximate cause of the plaintiff’s alleged injuries … . Once a defendant meets that burden, the plaintiff must rebut the prima facie showing via medical evidence attesting that the defendant departed from accepted medical practice and that such departure was a proximate cause of the injuries alleged … .

Generally, “the opinion of a qualified expert that a plaintiff’s injuries were caused by a deviation from relevant industry standards would preclude a grant of summary judgment in favor of the defendants” … . To defeat summary judgment, the expert’s opinion “must demonstrate the requisite nexus between the malpractice allegedly committed’ and the harm suffered” … .

Here, in opposition to defendant’s motion for summary judgment, plaintiff raised triable issues of fact as to both departure from good and accepted medical practice and causation. * * *

Contrary to defendant’s assertion, plaintiff’s medical evidence was sufficient to defeat summary dismissal of the complaint. Defendant’s argument that plaintiff’s experts failed to rebut its contention that, in the absence of any signs or symptoms of permanent neurological injury at or near the time of Kailen’s birth, there is no medical basis for connecting her current condition with the “circumstances of the labor and delivery,” is unavailing. Dr. Adler’s assertions that brain injuries at the time of birth can be diagnosed based on observations over time contradict defendant’s contention. In addition, a report prepared by Dr. Joseph Carfi, dated March 21, 2012, based on his physical examination of Kailen, and medical records, including those from defendant and the Center for Congenital Disorders, notes that Kailen was diagnosed at the Center for Congenital Disorders on May 23, 1996, when she was five months old, with microcephaly, and mild developmental delay. By 2012, she suffered significant mental retardation with developmental delays and lack of age appropriate personal independence. Her impairments are permanent and preclude her from living alone as an adult. Thus, although Kailen had excellent Apgar scores and otherwise appeared normal at birth, plaintiff nonetheless raised triable issues of fact as to causation … . Anyie B. v Bronx Lebanon Hosp., 2015 NY Slip Op 02576. 1st Dept 3-26-15