Leston v New York-Presbyterian Hospital/ Weill Cornell Med. Ctr.

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[*1] Leston v New York-Presbyterian Hospital/ Weill Cornell Med. Ctr. 2019 NY Slip Op 50952(U) Decided on June 12, 2019 Supreme Court, Kings County Edwards, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 12, 2019
Supreme Court, Kings County

Megan M. Leston and J. Christian Leston as Parents and Natural Guardians of L.J.L.,[FN1] an Infant, and Megan M. Leston and J. Christian Leston, Individually, Plaintiffs,


New York-Presbyterian Hospital/ Weill Cornell Medical Center and Allison R. Boester, M.D., Defendants.


Plaintiffs are represented by Edward Ruffo, Esq., Rheingold, Valet, Rheingold, Ruffo & Giuffra LLP

Defendants are represented by Matthew M. Frank, Esq., Martin Clearwater & Bell LLP
Genine D. Edwards, J.

The following papers numbered 1 through 8 read herein: Papers Numbered:

Notice of Motion and Affirmation (Affidavit) Annexed 1-3

Affirmation (Affidavit) in Opposition 4-5, 6

Reply Affirmation (Affidavit) 7, 8

In this action for medical malpractice, defendants New York-Presbyterian Hospital/Weill Cornell Medical Center (the Hospital) and Allison R. Boester, M.D. (collectively, defendants), move for summary judgment, pursuant to CPLR 3212, dismissing the complaint. Plaintiffs [*2]Megan M. Leston (the mother) and J. Christian Leston, individually and as parents and natural guardians of their child L.J.L. (collectively, plaintiffs), oppose.

Plaintiffs seek to recover for extraordinary care and treatment required by their child, born with a debilitating birth defect, known as the Cri Du Chat (CDC) Syndrome,[FN2] that went undiscovered as a result of the alleged malpractice of Dr. Boester. According to plaintiffs' verified bill of particulars, Dr. Boester (and the Hospital vicariously) departed from the standard of medical care in three distinct categories:

First. Dr. Boester failed to appreciate that the mother's pregnancy-associated plasma protein-A (PAPP-A) level, measured as part of the mother's First Trimester Screening, was low at the 5% percentile [FN3]and, as such, was indicative of a potential chromosomal defect; Second. Dr. Boester failed to perform invasive genetic testing in the form of either (1) chorionic villus sampling (CVS), an analysis of the placental tissue of the fetus, and/or (2) amniocentesis, an analysis of the amniotic fluid (collectively, the invasive genetic testing), either test, plaintiffs assert, would have revealed that the fetus was afflicted with the CDC Syndrome and, on the basis of which, an informed decision could have been made as to whether an abortion should be obtained; andThird. Dr. Boester failed to perform (or order the performance of) sonograms after the mother's 32nd week of pregnancy, to rule out the fetal intrauterine growth restriction (IUGR) and to otherwise monitor the fetal intrauterine growth during pregnancy.

Verified Bill of Particulars, dated May 21, 2015, ¶¶ 1-2, 5, 8.

Although a child with a disability may not maintain a wrongful life cause of action, the child's parents may, under certain circumstances, maintain a cause of action on their own behalf to recover the extraordinary costs incurred in raising the child. B.F. v Reproductive Med. Assoc. of New York, LLP, 30 NY3d 608, 69 N.Y.S.3d 543 (2017), rearg denied 31 NY3d 991, 773 N.Y.S.3d 788 and 789 (2018). To succeed on such a cause of action, which "sound[s] essentially in negligence or medical malpractice," the plaintiffs "must demonstrate the existence of a duty, the breach of which may be considered the proximate cause of the damages suffered by" them. Becker v. Schwartz, 46 NY2d 401, 413 N.Y.S.2d 895 (1978). "Specifically, the parents must establish that malpractice by a defendant physician deprived them of the opportunity to terminate [*3]the pregnancy within the legally permissible time period." Mayzel v. Moretti, 105 AD3d 816, 962 N.Y.S.2d 656 (2d Dept., 2013).

Here, defendants satisfied their initial burden of demonstrating their prima facie entitlement to judgment as a matter of law by submitting an expert affirmation from Gary L. Mucciolo M.D. (Dr. Mucciolo), a New York State-licensed physician, board-certified in Obstetrics and Gynecology, establishing that Dr. Boester did not depart from the standard of care in any of the three categories of claimed departures, and that the medical care provided by Dr. Boester was not and could not have been the proximate cause of the CDC Syndrome. Dr. Mucciolo Affirmation, dated Sept. __ (sic), 2018. According to Dr. Mucciolo:

First. A low PAPP-A level is only associated with placental insufficiency, which, in turn, is associated with a risk of IUGR, miscarriage, still birth, and preeclampsia. A low PAPP-A level, in Dr. Mucciolo's opinion, is not associated with, and is not a reason to suspect a potential chromosomal defect (¶ 16).

Second. Dr. Boester was not required, under the standard of care, to offer the mother the invasive genetic testing (¶¶ 17, 23). In any event, Dr. Boester testified at her deposition that the mother opted for the nuchal translucency (NT), a form of non-invasive genetic testing. Dr. Boester tr at page 21, line 19 — page 23, line 23. The NT, in Dr. Boester's words, produces "a risk assessment for Down [S]yndrome, [T]risomy 18 and 13." Dr. Boester tr at page 42, lines 6-11. According to Dr. Mucciolo the mother's NT "demonstrated a very low risk for the genetic conditions it tests for, Trisomy 21 [the Down Syndrome], 18, and 23 (¶ 17).[FN4] Third. "[T]here was never any indication of [the IUGR] at any time during the [mother's] pregnancy and the fetus was growing normally at all times" (¶ 19). "All sonograms and fundal height measurements were normal and reassuring at all times during the [mother's] pregnancy" (¶ 20). "[E]ven assuming . . . that an alleged [IUGR] could have been identified prior to the 39 week delivery, earlier delivery would have made no difference in the outcome" (¶ 21). The child's "claimed injuries were solely caused by the [CDC] Syndrome, which was set in place upon conception" (¶ 23).

In opposition, plaintiffs submitted an expert affidavit from Barry Schifrin, M.D. (Dr. Schifrin), a California-licensed physician, board-certified in obstetrics and gynecology as well as in maternal-fetal medicine, raising triable issues of fact as to the first and second categories of claimed departures, and as to causation. Dr. Schifrin did not address the third category of claimed departures (i.e., the IUGR theory), thus defendants' motion for summary judgment dismissing this category of departures is granted.

As to the first category of claimed departures, Dr. Schifrin avers that a low PAPP-A level is associated, albeit "less frequently," with the CDC Syndrome. Dr. Schifrin Aff., ¶ 7. As to the second category of claimed departures, Dr. Schifrin cites to Practice Bulletin 88 ("Invasive [*4]Prenatal Testing for Aneuploidy")[FN5] issued by the American College of Obstetricians & Gynecologists, a well-known professional medical organization, recommending and concluding that "[i]nvasive diagnostic testing for aneuploidy should be available to all women, regardless of maternal age." Practice Bulletin 88, page 7.[FN6] Further, Dr. Schifrin credits the mother's deposition testimony which, in contrast to the deposition testimony of Dr. Boester, states that Dr. Boester did not review with, nor offer, the invasive genetic testing to the mother. Megan Leston tr at page 47, lines 3-20; page 82, lines 11-25; page 85, lines 8-11; page 114, lines 14-16. Dr. Schifrin further opines that Dr. Boester's failure to offer the invasive genetic testing to the mother was "the competent producing medical cause of [her] losing the chance to terminate [her pregnancy] and avoid the rigors of raising the child." Dr. Schifrin Affidavit, ¶ 15.

Contrary to defendants' position, Dr. Mucciolo's reply affirmation is insufficient to overcome Dr. Schifrin's expert opinion. Dr. Mucciolo's reliance on Practice Bulletin 163 ("Screening for Fetal Aneuploidy") in his reply affirmation is misplaced because that practice bulletin, effective May 2016, post-dated the mother's pregnancy. Dr. Mucciolo's further reliance in his reply affirmation on Practice Bulletin 77 ("Screening for Fetal Chromosomal Abnormalities") — the predecessor to Practice Bulletin 163 — misses the mark.[FN7] Although Practice Bulletin 77 was in effect at the time of the mother's pregnancy, that publication addressed screening, rather than the invasive genetic testing which, as Dr. Schifrin noted, was governed by Practice Bulletin 88.

Counter to defendants' contention, plaintiffs did not impermissibly raise a new theory of liability for the first time in their opposition papers. More particularly, defendants contend that plaintiffs asserted for the first time in opposition that Dr. Boester was negligent in failing to offer invasive genetic testing to the mother, irrespective of her PAPP-A level. This theory, however, was included in plaintiffs' bill of particulars alleging, among other things, that defendants were "further negligent in failing to perform genetic testing[,] including CVS and amniocentesis to further identify the existence of [a] chromosomal defect." A bill of particulars in a medical malpractice action "must provide a general statement of the acts or omissions constituting the alleged negligence." Toth v. Bloshinsky, 39 AD3d 848, 835 N.Y.S.2d 301 (2d Dept., 2007). Plaintiffs' bill of particulars satisfied this standard and sufficiently apprised defendants of plaintiffs' allegation that Dr. Boester should have, at a minimum, offered the invasive genetic testing to the mother. See Contreras v Adeyemi, 102 AD3d 720, 958 N.Y.S.2d 430 (2d Dept., 2013).

Also unavailing is defendants' further contention that plaintiffs failed to offer any evidence of the child-related extraordinary expenses. The mother's deposition testimony, annexed to plaintiffs' opposition, described at length the child's special needs in the areas of, inter alia, various types of therapy (physical, occupational, speech, swallowing), modes of communication (augmentative and alternative communication devices, sign language, words, gestures), and special treatment (neurodevelopment).

Defendants' challenge to the qualifications of Dr. Schifrin, in that he is licensed to practice in California, rather than in New York, is rejected, as it goes to the weight and not the admissibility of his opinion. See Rivers v. Birnbaum, 102 AD3d 26, 953 N.Y.S.2d 232 (2d Dept., 2012). Although Dr. Schifrin's out-of-state affidavit was not accompanied by a proper certification in accordance with CPLR 2309 (c), the defect was not fatal, as defendants were not prejudiced thereby. See e.g. Bey v. Neuman, 100 AD3d 581, 953 N.Y.S.2d 266 (2d Dept., 2012). The Court considered defendants' remaining contentions and found them to be without merit.


Accordingly, after oral argument, it is

ORDERED that defendants' motion is granted to the extent that plaintiffs' claimed departure that defendants were "negligent in light of the low PAPP-A in not performing sonograms after week 32 to rule out intrauterine growth restriction and in otherwise failing to monitor the baby's growth" (Verified Bill of Particulars, dated May 21, 2015, ¶ 1), is dismissed; and the remainder of their motion is denied; and it is further

ORDERED that the caption is amended to reflect that the proper plaintiffs in this action are Megan M. Leston and J. Christian Leston as the child's parents and natural guardians, rather than individually:


Megan M. Leston and J. Christian Leston

as Parents and Natural Guardians of L.J.L., Plaintiffs,

against -Index No. 1726/15

New York-Presbyterian Hospital/

Weill Cornell Medical Center

and Allison R. Boester, M.D.,



; and it is further

ORDERED that plaintiffs' counsel shall serve a copy of this Decision and Order with notice of entry on defendants' counsel and shall file an affidavit of said service with the Kings County Clerk.

This constitutes the Decision and Order of the Court.

E N T E R,


J. S. C. Footnotes

Footnote 1:The child's name has been redacted in accordance with 22 NYCRR 202.5 (e) (1) (iii).

Footnote 2:The CDC ("cry of the cat") Syndrome is "a rare genetic condition that is caused by the deletion . . . of genetic material on the small arm . . . of chromosome 5. . . . The clinical symptoms . . . usually include a high-pitched cat-like cry, mental retardation, delayed development, distinctive facial features, small head size . . . , widely-spaced eyes . . . , low birth weight and weak muscle tone . . . in infancy." Gohl v. Livonia Public Schools, 2015 WL 1469749 (E.D. Mich., 2015) (internal quotation marks omitted), reconsideration denied 2015 WL 13039423 (E.D. Mich., 2015).

Footnote 3:First Trimester Screen F Report, dated Apr. 29, 2013.

Footnote 4:These chromosomal abnormalities, however, are different from, and have nothing to do with, the CDC Syndrome.

Footnote 5:A copy of Practice Bulletin 88 is annexed to Plaintiffs' Affirmation in Opposition as Exhibit D.

Footnote 6:Practice Bulletin 88, in effect at the time of the mother's pregnancy in 2013, was superseded by Practice Bulletin 162 in 2016 (rather than in 2013) and was reaffirmed in 2018.

Footnote 7:Dr. Mucciolo annexes to his reply affirmation an article from the online publication "American Family Physician" summarizing Practice Bulletin 77. An actual copy of Practice Bulletin 77 is not in the record.

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