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Request for Summary Judgment Denied in Medical Malpractice Case


Birth Injury 136

This is a case involving Hanna Jesionowska Peterson versus Andrew Garber, M.D. The case is being heard in the New York State Supreme Court in New York County. The judge for the case is Sheila Abdus-Salaam.

Case Facts

This is a case of medical malpractice. The plaintiff claims that Andrew Garber, M.D., performed an art amniocentesis improperly and this resulted in the right eye of the infant Cole Peterson being penetrated by a needle. The infant now has a condition called microphthalmia, or small eye, as a result of the injury. He has no vision out of his right eye and has to wear an ocular prosthesis.

Defendants Argument

The defendant is moving for summary judgment in this case. He states that the condition of the infant is not related to the amniocentesis that he performed, but rather is a developmental anomaly. Dr. Steven McCormick was called as a witness for the defendant. He is a pathologist and states that the physicians that treated the infant found no evidence of any ocular injury or ocular rupture.

A New York Injury Lawyer said tht one of the physicians that treated the infant Dr. Millman, documented that the mother of the infant felt that the eye was injured during amniocentesis. Dr. Millman reports that he did not find any evidence to support this type of injury had occurred.

Dr. James Katowitz, gave a second opinion in the case and found that the infant has right microphthalmia. An ACT scan of the infants head revealed right microbulbia with right hypoplastic optic nerve. This is a small right globe with a lens that is enlarged and deformed.

Dr. McCormick states that these are developmental abnormalities that would have happened during the first trimester of the pregnancy. The amniocentesis was not performed until the second trimester. He also states that if the needle had punctured the eye the globe would have ruptured, which is not the case.

Plaintiff’s Argument

The expert witness for the plaintiff argues with the opinion of Dr. McCormick. He states that a needle injury may have caused the malformation of the eye of the infant. He also states that the gestational development of the eye of the infant coincides with the time that the amniocentesis occurred. The plaintiff’s expert also points out that while the microphthalmia of the infant could be a developmental anomaly that occurs with certain syndromes, the infant does not have any of these chromosomal abnormalities or conditions. He states that if this was in fact a developmental anomaly one would expect to see other congenital abnormalities as well. A Suffolk County Personal Injury Lawyer said the expert gives a reasonable degree of medical certainty that the condition that the infant suffers from is likely from the penetration of the needle.

Court Decision

After reviewing the arguments from both sides of the case, the Court has determined that there has not been enough evidence supplied by the defendant to support a summary judgment. A Westchester County Personal Injury Lawyer said that summary judgments may only be granted in cases where there is no evidence that some type of malpractice has occurred. The court schedules a pretrial conference for the eleventh of October.

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