$10 Million Medical Malpractice Action In Queens County Discontinued After Plaintiff’s Experts Were Subjected To Preclusion Under Frye/Parker
Plaintiffs alleged that a now 12-year-old boy suffered a severe right hemiparesis, cognitive delays and impaired speech as a result of labor mismanagement. On behalf of HPM&B’s clients, a major academic medical center and several maternal fetal medicine specialists, HPM&B partners Chuck Bach and Patricia Thornton sought a Frye/Parker hearing to test the reliability of plaintiff’s experts’ theory that an alleged failure to diagnose fetal distress during labor and to perform an earlier Cesarean section caused the infant-plaintiff to suffer hypoxic brain damage (HIE). The infant-plaintiff was delivered at 28 weeks gestation and weighed less than 1,000 grams at birth. He had good cord blood gases and Apgars and no signs of HIE during his newborn course. Our experts attributed all of his cognitive and motor deficits to periventricular leukomalacia (PVL), a white matter disease of premature babies, that was diagnosed during the newborn admission.
Mr. Bach and Ms. Thornton challenged plaintiff’s theory that earlier delivery would have prevented PVL and further argued that earlier delivery would have actually increased the risk of PVL. The motion was supported by affidavits from a maternal fetal medicine specialist, a neonatologist and a pediatric neurologist of national rank. Plaintiff’s counsel served disclosure for an obstetrician, a pediatric neurologist and a number of damages experts. Supreme Court, Queens County Justice O’Donoghue granted the motion for a Frye/Parker hearing.
On the day of the hearing, defendants’ expert was prepared to testify that there is no consensus in the medical community supporting plaintiff’s experts’ causation opinions. At that time, plaintiff’s counsel chose not to proceed and instead filed a stipulation of discontinuance with prejudice, abandoning a case that had a potential jury judgment value of $10 million. Challenging the admissibility of expert causation theories under Frye/Parker when such theories have no support in the medical literature continues to be an effective strategy in defending medical malpractice cases.