Taveras v St. Luke's-Roosevelt Hosp.
Annotate this CaseDecided on January 20, 2005
Supreme Court, New York County
Kirsy Taveras, an Infant, by her Mother and Natural Guardian, MERCEDES NUNEZ, Plaintiffs,
against
St. Luke's-Roosevelt Hospital and MARGARET LUCEY, C.N.M., Defendants.
114567/01
Stanley L. Sklar, J.
In this medical malpractice action in which it is claimed, inter alia, that the vaginal delivery of the infant plaintiff was contraindicated after the mother had previously delivered another child via cesarean section, that during the delivery of the infant plaintiff there were signs and symptoms of fetal distress and a failure to descend which were inadequately appreciated, and that following the delivery there was a failure to heed symptoms of hypoxic insult and thus render appropriate treatment thereby resulting in the infant's neurological injuries, the defendants move for an order precluding plaintiff's experts from testifying that the infant suffered from "hypoxia, asphyxia, hypoxic ischemic encephalopathy or any brain injury, at or around the time of her birth, which caused the infant-plaintiff to suffer cognitive impairments" or alternatively referring this matter to the trial judge for a Frye hearing [See Frye v. United States, 293 F 1013 (1923)] before jury selection.
Movants claim that plaintiff's case would be based on speculation and testimony not generally accepted in the medical community because allegedly as demonstrated by the hospital's chart the infant did not exhibit any signs of brain injury in the hours soon after her birth, [w]ith the exception of a very brief period of low tone and grunting following her birth (See, Schreiber aff. ¶ 20), and was discharged from the hospital without evidence of any brain injury. In addition movants assert that after her discharge the infant plaintiff did not demonstrate delays in early development as one would see in an infant who suffered an hypoxic ischemic event, but rather first failed to reach normal developmental milestones when she reached kindergarten. Thus movants maintain that plaintiff will be unable to produce evidence demonstrating that the infant's conceptual deficits and poor cognitive test results are related to anything that happened at or around the time she was born.
Defendants were served with a June 28, 2004 CPLR 3101 (d) statement as to Leon Charash, plaintiff's expert in pediatric neurology, which simply stated in conclusory terms no more enlightening than plaintiff's bills of particulars [See, Bills of Particulars which indicate that the fetus experienced "perinatal asphyxia" and "hypoxic insult" resulting in "[d]evelopmental delays", [,m]ental retardation [,b]rain damage [and s]peech delay".], that "plaintiff suffered a [*2]brain injury at birth related to her labor and delivery and peripartum period and her neurological injury and damage has left her with depression and significant cognitive impairments". Although CPLR 3101 (d) requires a plaintiff to provide a summary of the grounds for each expert's opinion "defendants did not move for a better CPLR 3101 (d) statement". Instead, because defense counsel believed that there was a lack of evidence to support the claim that the infant suffered from a brain damaging event at birth, defense counsel surmised that the basis for plaintiff's expert's opinion that the infant suffered brain damage perinatally was going to consist of
testimony not generally accepted in the medical community. Hence, this motion ensued.
Defense counsel asserts that there is no scientific peer review literature in the medical community to support what defense counsel assumes will be plaintiff's theory of causation, namely that one can conclude that perinatal brain injury occurs even in the absence of an array of certain signs and symptoms perinatally. Defendants rely on the affidavit of their expert as well as on various medical literature most notably that of Dr. Joseph Volpe "[o]ne of the most widely published and highly recognized authorities in the field of pediatric neurology". Schreiber moving aff., ¶ 11 Volpe, upon whom defense counsel relies, has written in his book Neurology of the Newborn that "[t]he neurological syndrome that accompanies serious intrauterine asphyxia is the prototype for neonatal hypoxic-ischemic encephalopathy" and that [t]he occurrence of a neonatal neurological syndrome, indeed, is a sine qua non for attributing subsequent brain injury to intrapartum insult(s)". Motion, exh E
Dr. Volpe considered three features necessary to conclude that "intrapartum insult [was] the likely cause of neonatal brain injury: (1) evidence for fetal distress (e.g. fetal heart rate abnormalities, meconium - stained amniotic fluid), (2) depression at birth and (3) an overt neonatal neurological syndrome the first hours and days of life". Id. Dr. Volpe then went on to detail clinical features of "severe" hypoxic-ischemic encephalopathy from birth to 12 hours, 12 hours to 24 hours, 24 hours to 72 hours and after 72 hours and stated that "[t]he recognition of neonatal hypoxic-ischemic encephalopathy depends principally on information gained from a careful history and a thorough neurological examination". Id
In response plaintiff asserts that defendants' application is nothing more than a thinly veiled summary judgment motion which is unjustifiably late and therefore must be denied. See, Brill v. City of New York, 2 NY3d 648 (2004) In this regard defendants had sixty days from the filing of the note of issue on March 15, 2004 to move for summary yet served this motion on August 12, 2004.
Plaintiff further asserts that a Frye hearing is unnecessary because plaintiff's theories are not novel, and that the evidence submitted by plaintiff in opposition to the motion establishes that intrapartum hypoxia/ischemia caused [the infant's] injuries". See plaintiff's memo of law p 5 Plaintiff further maintains that "strong clinical evidence" supports the opinions of the experts whose affidavits have been provided in plaintiff's opposing papers. Ibid. Specifically plaintiff provides the affirmation of Dr. Charash in which he concedes that Dr. Volpe's book Neurology of the Newborn is authoritative and asserts in conclusory terms that based on "all of the foregoing" [evidently referring to the fact that he read the affidavit of defendants' expert, Dr. Lydia Eviatar, and the report of her examination of the infant, the report of plaintiff's neuropsychologist, Dr. Ted Lidsky, a draft of the affirmation of plaintiff's expert obstetrician/ gynecologist, Stanley Warner (who opined that there was fetal distress because of a [*3]fetal heart rate abnormality)] the infant plaintiff suffered from static encephalopathy "caused by oxygen deprivation during the post-partum period" which was a substantial contributing cause of the infant's cognitive impairments.
Dr. Warner in his affidavit discussed the infant's fetal heart rate pattern which he opined was "indicative of a fetus having central nervous system depression and dysfunction and there is fetal distress". Dr. Warner further opined that the fetal distress, birth trauma (apparently referring to the fact that the infant at birth had shoulder dystocia and trauma to her head allegedly evidenced by molding and caput) and depression of the infant "were sufficient to cause brain damage" to the infant before she was born.
The affidavit of Dr. Lidsky, plaintiff's expert neuropsychologist, has also been provided. According to the plaintiff's CPLR 3101(d) statement with respect to Dr. Lidsky he was to testify based, inter alia, on his testing of the infant that she has brain injury which resulted in cognitive impairment and emotional depression and that such brain injury "is consistent with" perinatal oxygen deprivation. Dr. Lidsky in his report of his May 12, 2004 assessment of the infant indicates that the purpose of his evaluation was to determine the infant's "performance resources" and their impact on her ability to carry out the activities of daily life and educability. See report attached to Lidsky aff. While in his report he states that two factors should be considered in determining the cause of the infant's neurocognitive deficiencies, namely birth difficulties and the fact that she is severely emotionally depressed, Dr. Lidsky, a neuropsychologist, does not in his report render an opinion as to what caused the infant's deficiencies. Rather he merely notes that a lack of oxygen can cause brain injury. Ibid In his current affidavit Dr. Lidsky asserts that the purpose of his exam was to determine if the infant had cognitive impairments and if so what was the most probable cause. Dr. Lidsky then states that plaintiff's counsel asked him to cite literature supporting his conclusion that the infant suffered brain damage "consistent" with perinatal asphyxia and that he (Dr. Lidsky) understands that it is Dr. Warner's opinion that the infant suffered from in utero hypoxia sufficient to cause brain damage. Dr. Lidsky offers no opinion as to the actual cause of the infant's impairments.
In addition to these experts, whose CPLR 3101(d) statements plaintiff previously provided, plaintiff relies on the affirmation of Dr. Douglas Savino, a pediatrician, who concurs that Dr. Volpe is an authority on the neurology of the newborn and reiterates the three aforementioned criteria in considering whether intrapartum insult is the probable cause of brain injury. Dr. Savino asserts that the infant's fetal heart rate abnormalities were indicative of fetal distress and that there was evidence of depression at birth because the infant's Apgar scores were 3 at 1 minute and 6 at 2 minutes. Dr. Savino also asserts that a Nov 9, 1993 3:30 hospital note reciting that the infant's tone was fair was an indication that the infant was suffering from depression. As to the third criterion discussed by Dr. Volpe, Dr. Savino states that he cannot be certain that there was "overt" neonatal neurological syndrome in the infant's first few hours and days because no one at the hospital ever performed a full neurological exam. Dr. Savino claims that such "exam should have been done to determine whether or not there was neurological syndrome", and that had such an exam been done it would have"more probably than not...resulted in a diagnosis of neonatal neurological syndrome". Dr. Savino does not specifically state on what he based this conclusion. While he does state he ruled out several possible other causes of the infant's impairments based on a lack of any indication of them in the infant's [*4]"records", Dr. Savino does not state that his conclusion that a proper exam would have revealed neonatal neurological syndrome was based on ruling out these other possibilities. Also while he mentions a chart entry about a poor sucking reflex, which reflex he asserts is a neurological sign that cranial nerves are damaged, states that other chart entries that the infant was irritable were a "cause for concern" because irritability "can very often be a sign of CNS damage", and opines in conclusory fashion that the infant's strabismus was likely caused by in utero hypoxic ischemia and resultant cranial nerve damage, Dr. Savino does not explicitly state that he based his conclusion, about what a proper exam would have shown, upon any of this.
In response to plaintiff's claim that defendants' motion was in reality a belated summary judgment motion, defense counsel claims that it was not until defendants received plaintiff's CPLR 3101(d) statements that were conclusory and replete with unsubstantiated opinions that he became aware of the need to make this motion. This assertion is without merit. First, the bill of particulars set forth the theory of plaintiff's case which was repeated in the CPLR 3101 (d) statements. Second, if defense counsel was unsatisfied with plaintiff's conclusory CPLR 3101 (d) statements he should promptly have sought better statements.
Substantively in response to plaintiff's opposing papers defense counsel asserts that the opinions set forth in the affidavits offered by plaintiff's experts are no less conclusory and unsubstantiated than before and that there is no medical evidence in the record or scientific evidence to support plaintiff's claim that the infant suffered hypoxic ischemic encephalopathy perinatally. Thus defendants seek to preclude the testimony of plaintiff's expert or seek a Frye hearing prior to jury selection.
The motion is denied. Because defendants did not seek better CPLR 3101 (d) statements this motion was predicated on the speculation that plaintiff's case was going to be based on a novel theory of causation. In the first instance they should have moved for better CPLR 3101 (d) statements. In any event plaintiff's opposing papers in which two of plaintiff's experts acknowledge that Dr. Volpe and/or his text is authoritative and in which plaintiff attempted to meet Dr. Volpe's three-pronged test by claiming that there allegedly was fetal distress, depression and a neurological syndrome perinatally, strongly suggest that plaintiff will not be relying on a novel theory to demonstrate that as a result of defendants' alleged malpractice the infant perinatally suffered from hypoxic ischemic encephalopathy. That plaintiff's experts' opinions may be conclusory, unsubstantiated and unsupported by evidence in the medical records, as is asserted by defense counsel in his reply papers, does not standing alone warrant the holding of a Frye hearing. That plaintiff may not be able to prove a prima facie case because of conclusory expert testimony may be a basis for a summary judgment motion, which in this case would be too late, or a motion for a directed verdict at the end of the plaintiff's case, but it is not a basis for a Frye hearing.
Nonetheless if during the trial it becomes readily apparent that the basis offered by any of plaintiff's experts for that expert's conclusion that the infant suffered perinatal brain damage is a novel one defendants are free to move for a Frye hearing before that judge.
Settle order.
Dated: January 20, 2005
J.S.C.
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