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Court denies defendant’s motion for summary judgment in a medical malpractice birth injury case – McLaughlin v. Royek, 2007 NY Slip Op 32242(U) (N.Y. Sup. Ct. 7/17/2007)


In this birth injury medical malpractice case, the defendant moves for summary judgment, arguing that he did not deviate from accepted medical standards in his care and treatment of a pregnant woman by delaying performing a cesarean section delivery despite evidence that the baby was in distress.

Plaintiff McLaughlin filed a medical malpractice lawsuit on behalf of her infant son who was born in 1998 prematurely with an extremely low birth weight. The plaintiff contends that as a result of the negligent care of the defendants, her son suffered a variety of serious, permanent birth injuries including brain damage; status encephalopathy; fetal hypoxia; cerebral palsy; exacerbation of injuries related to prematurity; developmental delays; cognitive and speech deficits; and the need for braces on his extremities.

On September 5, 1998, the plaintiff, who was 23 weeks pregnant, was admitted to St. Charles Hospital with swelling of the legs and decreased fetal movement. St. Charles Hospital (a non-defendant) transferred the plaintiff to Stony Brook Hospital so that she would have access to its neonatal intensive care unit (NICU) in case the baby had to be delivered prematurely.

Plaintiff delivered her baby by cesarean section at 23-24 weeks by defendant Dr. Royek. The baby weighed 1 pound 1.1 ounces. The baby remained in the NICU for 3 months before being discharged to his home.

The plaintiff maintains that her baby suffered injuries due to defendant Royek’s failing to adequately treat preeclampsia, failing to timely perform a Cesarean section, ignoring an alarming fetal heart tracing, causing and allowing fetal hypoxia, and failing to obtain timely and appropriate consultations.

Defendant Dr. Royek filed a motion for summary judgement dismissing the complaint against him. He argues that his care and treatment of the plaintiff mother did not depart from good and accepted medical standards of care. Further, defendant Royek points out that he was not involved in the plaintiff mother’s prenatal care, that the infant plaintiff showed no clinical evidence of hypoxic insult when he entered the NICU, and that the infant plaintiff has developed remarkably well. The defendant points out that the child no longer wears braces, is only receiving speech therapy, and is in a regular classroom setting.

In order to win a summary judgment motion dismissing the complaint, each defendant must make a prima facie showing of entitlement to summary judgment in an action to recover damages for medical malpractice. This means that the defendant hospital or physician must establish through medical records and competent expert affidavits that the defendant did not deviate from accepted medical practice in the defendant’s treatment of the patient. Should the defendant make a prima facie showing, the burden shifts to the plaintiff to rebut the defendant’s prima facie showing by demonstrating the existence of a triable issue of fact. The plaintiff must do so by submitting an expert’s affidavit of merit attesting to a deviation from accepted practice and containing an opinion that the defendant’s acts or omissions were a cause of the injuries suffered by the plaintiff infant.

In support of his motion, defendant Royek offered testimony from an expert, Dr. Fleischer. Fleischer testified that within a reasonable degree of medical certainty that the care and treatment rendered by Dr. Royek was at all times well within the standards of good and accepted medical practice. Fleischer supported this opinion by giving multiple examples of how Royek’s care and treatment was appropriate. He also pointed out that plaintiff’s medical history, including a diagnosis of lupus and a history of preeclampsia, contributed to the complications related to her pregnancy, labor, and delivery.

Based on the testimony by his expert, the court concluded that defendant Royek established his prima facie entitlement to summary judgment dismissing the medical malpractice claim against him.

The plaintiff responded to defendant Royek by arguing that Royek departed from accepted practice by unjustifiably delaying the inevitable Cesarian section delivery for several hours, despite the evidence of fetal distress. The plaintiff asserts that this substantially contributed to injury to the infant plaintiff. As evidence, the plaintiff submitted the affirmation of an expert, Dr. Weiss, Board Certified in Obstetrics and Gynecology and the affidavit of Dr. Charash, Board Certified in Pediatrics.

The court concluded that the plaintiff mother raised triable issues of fact by submitting the affirmation and affidavit of her expert physicians which contradict defendant’s expert by asserting that defendant Royek, in significantly delaying delivery of the infant plaintiff while in fetal distress proximately caused his injuries, and that his injuries may have been avoidable. Thus, the court denied the defendant’s motion for summary judgment dismissal.

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