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Courts typically deny pre-trial motions to dismiss in brain damaged infant cases. We took the aggressive step of moving for summary judgment for our client, and prevailed
Kings County Supreme Court Grants Ob-Gyn Summary Judgment
in a Brain Damaged Baby Case
We make every effort to resolve cases early through motions to dismiss and favorable settlements. Unswayed by the fact that courts typically deny pre-trial motions to dismiss in cases involving brain damaged infants, we engaged in an aggressive strategy to move for summary judgment on behalf of an attending ob-gyn to narrow the issues in the case. We were able to successfully distill plaintiff’s allegations down to two points and then refute plaintiff’s experts’ opinions point by point. We established to the Court’s satisfaction that the opinions of the plaintiffs’ experts were not supported in medicine—and the case against our client was dismissed prior to trial.
This case concerned allegations against an ob-gyn with respect to the pre-natal care and labor and delivery of the mother of twins who were born at 23+ weeks gestation. On May 1, 2001, plaintiffs’ treating ob-gyn admitted the patient to the hospital for suspected pre-term labor. The attending ob-gyn treated the patient's pre-term labor, and her symptoms resolved within six days. She was discharged from the hospital on May 7, 2001 but returned to the hospital on May 9, 2001 with spontaneous premature rupture of membranes. The attending ob-gyn was able to successfully delay the patient's labor for another 10 days after her pre-term rupture of membranes. Nevertheless, on May 19, 2001, the patient was found to have cord prolapse and the infant twins were emergently delivered.
After completion of discovery and filing of the Note of Issue, we moved for summary judgment on behalf of the attending ob-gyn. In response, plaintiff's counsel opposed the motion with expert affirmations by both an obstetrician-gynecologist and a neonatologist. In reply, we deconstructed the plaintiff's expert affirmations and were able to narrow plaintiff's allegations of negligence down to two critical issues: 1) that the ob-gyn improperly sent the patient to the hospital in a taxi as opposed to an ambulette on May 1, 2001 and 2) that the ob-gyn failed to order broad-spectrum antibiotics for this patient, which in turn, allowed choriamnionitis to develop, resulting in preterm labor.
With regard to plaintiff’s expert’s claim that the ob-gyn should have sent the patient to the hospital on May 1, 2001 via ambulette as opposed to a taxi, we submitted a Supplemental Expert Affirmation wherein our ob-gyn expert opined that there is no standard of care in obstetrics and gynecology that requires a physician to send a patient with a 1 cm shortened cervix to a hospital two miles away via ambulette as opposed to via taxi. We also pointed out that even plaintiff’s expert conceded that the onset of preterm labor was successfully treated during the first admission, from May 1st to May 7th. Thus, we argued that not only was plaintiff’s expert’s opinion regarding the transportation issue on May 1, 2001 entirely speculative, but he conceded that there was no proximate cause between the patient’s transportation to the hospital and her pre-term labor.
Plaintiff's experts’ most compelling argument was that the ob-gyn failed to order broad-spectrum antibiotics for the patient, which in turn allowed choriamnionitis to develop, resulting in preterm labor. With regard to the patient’s first hospital admission from May 1, 2001 to May 7, 2001, we submitted a Supplemental Expert Affirmation by our ob-gyn expert, wherein he explained that the patient’s placental pathology report revealed ‘acute choriomnionitis’ meaning that this infection occurred acutely, within a few hours or days of the delivery on May 19, 2001. Thus, we argued that any “acute” infection could not have been present during the patient’s May 1, 2001 to May 7, 2001 admission by virtue of the fact that this was at least 12 days prior to the delivery. Therefore, whether or not broad-spectrum antibiotics were administered during the patient’s May 1, 2001 to May 7, 2001 admission was not the proximate cause or a substantial contributing factor, or any factor whatsoever in this patient’s pre-term labor.
With regard to the patient’s second admission, from May 9, 2001 to May 19, 2001, we submitted a Supplemental Expert Affirmation, wherein our expert explained that irrespective of any “ascending infection,” the patient had premature pre-term rupture of membranes on May 9, 2010 and the delivery was successfully delayed for another 10 days (until May 19, 2001). We argued that the plaintiff’s obstetrical expert’s opinion that delivery could have been delayed beyond the 10 days in light of her ruptured membranes was entirely speculative and not supported in medicine. We obtained medical research to prove that the vast majority of women proceed to active labor and deliver soon after premature pre-term rupture of membranes (PPROM). Furthermore, the research indicates that 50% of all remaining pregnancies deliver each subsequent week after PPROM and this number is further increased with a twin-gestation, as seen in this case. Thus, we argued that whether this patient had developed an “ascending infection” or not, the chances of prolonging pregnancy after premature pre-term rupture of membranes was extremely remote, especially in a twin-gestation. Our ob-gyn expert opined that the fact that this pregnancy was prolonged for an additional 10 days was in and of itself, extraordinary. We thus argued that plaintiff’s expert’s opinion that the delivery would have been delayed longer than the 10 days if broad-spectrum antibiotics had been administered was entirely speculative, conclusory, and not supported by any evidence in medicine or the medical records.
The Court agreed with our arguments on all accounts and found the plaintiff's expert affirmations "speculative and conclusory."
Tracy S. Katz of DSMF represented the defendant in this case.
Courts typically deny pre-trial motions to dismiss in brain damaged infant cases. We took the aggressive step of moving for summary judgment for our client, and prevailed
