Summary Judgment Awarded in Kings County

In a medical malpractice action arising from the premature birth of a neurologically impaired infant-plaintiff, HPMB obtained summary judgment in Kings County on behalf of specialists in Maternal Fetal Medicine and Obstetrics/Gynecology and a major metropolitan Hospital.  Plaintiffs claimed the defendants negligently failed to appreciate plaintiff-mother’s increased risk of preterm delivery due to her history of seven prior deliveries, during which several of those pregnancies the mother experienced pre-term contractions prior to delivering at term.  Plaintiffs further claimed that the defendants failed to prevent infant-plaintiff’s pre-term birth by failing to perform a cerclage and other intervention during pre-natal visits.

Defendants were represented by HPMB partners Patrick J. Murphy and Alejandra Gil, who submitted pertinent ACOG guidelines to establish that plaintiff-mother did not meet the criteria for the alleged prenatal intervention because she did not have a history of pre-term delivery.   Further, Mr. Murphy and Ms. Gil successfully established that the infant-plaintiff’s pre-term delivery was secondary to acute placental abruption and infection that were unavoidable and occurred well after the last pre-natal visit.  In opposition, plaintiffs attempted to circumvent the ACOG guidelines by raising a new theory of liability that the infant’s pre-term birth at 28 weeks gestation could have been avoided if the defendants admitted the mother to the Hospital for treatment with antibiotics.  In Reply, it was argued that the Court should not consider the new theory of liability because it was not previously plead, and because the standard of care did not require antibiotic treatment.

The Court agreed with the defendants’ position that the opinions offered by plaintiffs’ expert were speculative, based upon improper hindsight reasoning and unsupported by the evidence.  The Court further held that it did not need to consider the new theories of liability offered by plaintiffs’ expert since it was raised for the first time in opposition to the motion.  Nevertheless, even if the Court were to consider the new theories of liability, the Court found the new theory unsupported by the facts.