Victor Q. v Bronx Lebanon Hosp. Ctr.

Victor Q. v Bronx Lebanon Hosp. Ctr. 2017 NY Slip Op 02742 Decided on April 6, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 6, 2017
Renwick, J.P., Mazzarelli, Manzanet-Daniels, Feinman, Webber, JJ.
3658N 350637/07 83813/11

[*1] Victor Q., Jr., an Infant, by his Mother and Natural Guardian, Yuselle V., etc., Plaintiffs-Respondents,

v

Bronx Lebanon Hospital Center, Defendant-Appellant.

Bronx Lebanon Hospital Center, Third-Party Plaintiff, Richard K. Deveaux, M.D., et al., Third-Party Defendants-Appellants.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel), for Bronx Lebanon Hospital Center, appellant.

Martin Clearwater & Bell LLP, New York (Barbara D. Goldberg of counsel), for Richard K. Deveaux, M.D. and Norris M. Allen, M.D., appellants.

The Fitzgerald Law Firm, P.C., Yonkers (John M. Daly of counsel), for respondents.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered November 4, 2016, which, after a Frye hearing (Frye v United States, 293 F 1013 [DC Cir 1923]), denied defendant hospital's motion and third-party defendant doctors' (collectively appellants) motion insofar as they sought to preclude plaintiffs' expert from testifying as to causation, unanimously affirmed, without costs.

In this medical malpractice action, plaintiffs allege that the infant plaintiff suffered brain damage as a result of appellants' failure to diagnose and treat fetal hypoxia-ischemia. The motion court properly denied the motions to preclude. The articles proffered by plaintiffs were sufficient to establish that it is generally accepted that perinatal hypoxia can be the cause of brain injury, in the absence of evidence of neurological injury in the neonatal period (see Marso v Novak, 42 AD3d 377, 378-379 [1st Dept 2007], lv denied 12 NY3d 704 [2009]). The articles established that infants who experienced a hypoxic event in the neonatal period but were asymptomatic for neurological injuries might still manifest such injuries later in life. That the infants in these articles exhibited certain manifestations of hypoxia not exhibited by the infant plaintiff is irrelevant

(see Zito v Zabarsky, 28 AD3d 42, 46 [2d Dept 2006] [literature relied on to establish general acceptance need not involve "circumstances virtually identical to those of the plaintiff"]).

Even if some of the infant plaintiff's symptoms are attributable to his autism, the cause of which is unknown, some of his impairments may also be due to brain damage resulting from [*2]hypoxia (see Bygrave v New York City Hous. Auth., 65 AD3d 842, 846-847 [1st Dept 2009]).

We have considered appellants' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 6, 2017

CLERK