Plaintiff’s obstetrical expert opined that during plaintiff’s mother’s near 24–hour labor, plaintiff experienced multiple late decelerations indicative of placental insufficiency causing fetal hypoxia. He opined that it was a departure for staff to deliver plaintiff vaginally with Pitocin augmentation under these circumstances. He explained that diminished beat-to-beat heart rate variability, coupled with late decelerations, enhances the likelihood that the fetus is experiencing significant hypoxia. Plaintiff’s expert examined the fetal heart monitoring strips in great detail and opined that by 11:52 P.M. on December 10, 2003, at the latest, prompt injury delivery was essential to prevent further hypoxic-ischemic insult.
Plaintiff’s pediatric neurologist noted that in addition to plaintiff’s initial hypotonic, or “floppy” state, there was facial bruising, cephalohematoma, abdominal petechiae and separated sutures, all indicative of a traumatic delivery in addition to a period of hypoxia-ischemia.
The very neurological report relied on by defendants in moving for summary judgment indicates that plaintiff suffers from a developmental disorder of receptive and expressive language development, that he has a disorder of articulation, and that he is fidgety, with a short attention span. Although at the time of the examination, plaintiff was 4 1/2 years old, he was unable to count to 10 consistently or to sing the alphabet song.
In opposition, plaintiff submitted affirmations from an obstetrician and gynecologist based in Texas, and a pediatric neurologist practicing in White Plains, New York. The doctor found various departures but limited his findings of causation to the following: He opined that once the mother was admitted on the morning of December 9, 2003 and defendants employed a fetal heart rate monitor, defendants should have abandoned their plan for a vaginal birth and instead delivered plaintiff by cesarean section.
The doctor opined in conclusory fashion that the hypoxic-ischemic stress and other trauma that occurred during the delivery resulted in permanent accident brain damage, primarily to the neocortex, which in turn caused plaintiff’s speech and language disorder. However, he failed to support this opinion with a radiological study of plaintiff’s brain or any other medical record demonstrating brain damage other than language delay. His assertions that “[t]here is nothing in [plaintiff’s] medical history, other than the abnormal labor and delivery, that would account for his deficits in speech and language” and that the deficits resulted from his permanent brain damage are entirely conclusory. In fact, the record shows that plaintiff’s cousins suffer from similar language deficits.