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Request for Summary Judgment Denied in Medical Malpractice Case – Peterson v. Andrew Garber, M.D., 2007 NY Slip Op 32866(U) (N.Y. Sup. Ct. 9/6/2007)


In this medical malpractice case, the court must decide whether the plaintiff’s expert testimony was sufficient to rebut the defendant’s expert’s testimony which established a prima facie showing supporting the defendant’s motion for summary judgment dismissal.

Plaintiff Peterson filed a medical malpractice lawsuit against defendant Dr. Garber. In her claim, the plaintiff asserted that the defendant improperly performed amniocentesis, and as a result her infant son’s right eye was penetrated with a needle. Plaintiff alleges that this caused her baby to suffer a condition called microphthalmia (small eye). In addition, her baby is blind in that eye and must wear an ocular prosthesis. Defendant Garber filed a motion for summary judgment dismissal of the case, asserting that the baby’s condition was not caused by improper amniocentesis, but was actually a developmental anomaly.

When a defendant files a motion for summary judgment dismissal, the defendant has the burden of presenting a prima facie case that there is no genuine issue as to any material fact and that based on the undisputed facts, the defendant is entitled to judgment as a matter of law. If the defendant offers a prima facie showing, then the burden shifts to the plaintiff.

In support of his motion to dismiss, the defendant offers testimony from an expert, Dr. McCormick, a board certified pathologist with a sub-specialty in opthalmic pathology. Dr. McCormick found that the child’s treating physicians did not find any evidence of ocular rupture or ocular injury. The treating physicians found that the baby has right microphthalmia and that a CT scan showed right microbulbia with right hypoplastic optic nerve, a small right globe with an enlarged deformed lens and plagiocephaly. The expert opined that these findings by the baby’s doctors are developmental abnormalities which would have occurred early in the first trimester of pregnancy, and are not related to the amniocentesis—which is performed in the second trimester. Further, the defendant’s expert asserted that if a needle had impacted the eye during the amniocentesis, the result would be a rupture of the globe. The result would have also have been that fluids would have leaked causing the eye to become misshapen and that the eye would have been more malformed at birth than the infant plaintiff’s was.

However, plaintiff’s expert has raised a triable issue of fact as to whether the infant plaintiff’s condition was caused by the amniocentesis. The expert, a board certified opthamologist, disagrees with defendant’s expert on the issue of whether one would expect a rupture of the globe upon a penetration to the eye, and whether a needle injury would have caused more malformation than is present in the infant plaintiff’s eye. Plaintiff’s expert also opines, in contrast with the opinion of defendant’s expert that the infant’s condition developed during the first trimester, that the gestational development of the infant’s right eye was arrested at approximately the same time that the amniocentesis was performed—during the second trimester.

While with the testimony of his expert the defendant presented a prima facie showing supporting his motion for summary judgment, the plaintiff rebutted with expert testimony that while microphthalmia can be a developmental anomaly occurring in connection with certain syndromes, the infant plaintiff does not have any of these conditions or any chromosomal abnormalities which are known causes of microphthalmia. Thus, the plaintiff’s expert concluded with a reasonable degree of medical certainty that the microphthalmia is not a developmental anomaly unrelated to amniocentesis and that the condition is consistent with being caused by a needle injury during amniocentesis.

In response to the plaintiff’s evidence, the defendant argued that plaintiff’s expert’s opinion was based on supposition, not reasonable medical certainty. The court disagreed, noting that the plaintiff’s expert has opined that the gestational development of the infant’s right eye was arrested at approximately the same time that the amniocentesis, and that it was more likely that the condition was caused by the amniocentesis than that it was a developmental anomaly. The court noted that simply because the expert used the words “possible” or “could have been” does not necessarily destroy the probative value of the expert’s opinion. Thus, the court concluded that based on the plaintiff’s expert opinion there are triable issue of fact. Therefore, the defendant’s motion for summary judgment was denied.

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