T.H., etc., Plaintiff–Appellant, v. NEW YORK CITY HEALTH HOSPITAL CORPORATION NORTH CENTRAL BRONX HOSPITAL (2020)

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered on or about January 10, 2017, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff was born via emergency cesarean section after a prolonged diminution of the fetal heartbeat indicative of bradycardia.  Defendant does not contest that plaintiff suffered a perinatal hypoxic ischemic insult, with an acidotic pH level in the umbilical cord at birth and a postnatal indication of seizure activity within the first few hours of life.

Defendant failed to establish prima facie that its staff did not depart from good and accepted medical practice, as it submitted competing expert opinions by obstetric practitioners in New York who reached opposing conclusions based on the same labor and delivery records (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).  “Resolution of issues of credibility of expert witnesses and the accuracy of their testimony are matters within the province of the jury” (Frye v. Montefiore Med. Ctr., 70 A.D.3d 15, 25, 888 N.Y.S.2d 479 [1st Dept. 2009] ).

Defendant established prima facie, via an expert opinion, that any departure was not a proximate cause of the infant plaintiff's conditions, including attention deficit hyperactivity disorder (ADHD), oppositional defiant disorder, and speech, language, and cognitive delays.  Defendant also submitted an expert opinion by a pediatric neurologist which had previously been provided by plaintiff, and argued that it was insufficient to demonstrate proximate cause.  The motion court agreed, finding that the plaintiff's expert's opinion was not supported by the expert's cited articles, which merely discussed associations between such perinatal injury and ADHD (see generally Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448, 824 N.Y.S.2d 584, 857 N.E.2d 1114 [2006] ).

However, plaintiff raised an issue of fact as to causation by submitting an additional expert opinion by a pediatric neurologist in opposition to defendant's motion.  That opinion offers a synthesis of numerous medical studies not cited by plaintiff's previous expert, which reasonably permits the conclusion that the alleged departures proximately caused plaintiff's conditions (see Marsh v. Smyth, 12 A.D.3d 307, 308, 785 N.Y.S.2d 440 [1st Dept. 2004];  accord Lugo v. New York City Health & Hosps. Corp., 89 A.D.3d 42, 57–58, 929 N.Y.S.2d 264 [2d Dept. 2011] ).