J.N. etc., et al., Plaintiffs–Appellants, v. Gina Spatafore, Defendant. (2025)

Order, Supreme Court, New York County (Martin Shulman, J.), entered June 4, 2020, which, to the extent appealed from as limited by the briefs, granted defendants’ motion for summary judgment dismissing the claims based on lack of informed consent, unanimously affirmed, without costs.

Plaintiffs’ claim of lack of informed consent against defendants, in connection with a chorionic villus sampling (CVS) procedure performed on the infant plaintiff's mother, Ingrid Berges, on May 15, 2013, at defendant Mount Sinai Hospital, was properly dismissed.  Defendants submitted their expert's affirmation, which was not refuted by plaintiffs’ experts’ affidavits, that to a reasonable degree of medical certainty, based upon the “robust published medical literature,” a CVS procedure performed after 10 weeks gestational age has no proven association with increased risk for fetal severe limb reduction abnormalities such as that observed in the infant (see Public Health Law § 2805–d[1], [3];  Orphan v. Pilnik, 66 A.D.3d 543, 544, 887 N.Y.S.2d 66 [1st Dept. 2009], affd 15 N.Y.3d 907, 914 N.Y.S.2d 729, 940 N.E.2d 555 [2010]).  Nor did plaintiff contradict defendant's expert's conclusion that there was no medical evidence causally linking the lack of informed consent claim with the injury claimed here.

Plaintiffs failed to raise an issue of fact to warrant denial of summary judgment (see Gilbride v. Balikcioglu, 181 A.D.3d 465, 465, 117 N.Y.S.3d 573 [1st Dept. 2020]).  Among other things, plaintiffs’ experts’ affidavits failed to support the proposition that all women, regardless of gestational age, should be advised that CVS carried a risk of the type of severe limb reduction the infant sustained.

We have considered plaintiffs’ remaining arguments and find them unavailing.