NY: obstetrician sued for developmental delay: failure to prove proximate cause-case dismissed.

CASE FACTS: Marques Fernandez, an infant, brought suit by his mother and natural guardian, Ruth De Los Santos against Dr. Joel Moskowitz and New York University Medical Center(NYUMC). Ruth first saw Dr. Moskowitz on January 2, 2004, for prenatal care. Ultrasounds were performed on February 25,2004, and April 21,2004, and both showed that the fetus was growing at a normal rate. The third and final ultrasound was performed on June 30, 2004. It revealed that the fetus' growth rate had changed from the previous two ultrasounds, and that the ratio of head circumference to abdominal circumference was outside the normal range. At approximately 11:00 a m., on July 4, 2004, while in her 39th week of pregnancy, Ruth's water broke and she was admitted to NYUMC. She experienced a normal labor with no signs of fetal distress and no complications until 10:40 p.m., when it was discovered that there was a prolapsed umbilical cord. Dr. Moskowitz. who had not examined the mother prior to 10:40 p.m., ordered an emergency caesarean section, and Ruth arrived in the operating room at 10:54 p.m. At approximately 11:09 p.m., the infant was delivered. Upon delivery, the infant cried spontaneously, had normal Apgar scores, and had normal cord blood gases. He was taken to the newborn nursery where he ate well, had good color and muscle tone and did not experience any seizures or other neonatal complications. Mother and baby were discharged four days after birth. The complaint alleged that the defendants deviated from the standard of care during prenatal care, and labor and delivery, and that the defendants failed to obtain informed consent for the emergency caesarean section It was alleged that as a result of this alleged malpractice the infant suffered a hypoxic-ischemic brain injury which resulted in developmental delays and neurological impairments.

COURT'S OPINION: The Supreme Court of New York, First Department, affirmed the lower courts grant of summary judgment in favor of Dr. Moskowitz and the hospital. Further, the court held that the court should also have granted summary judgment for the defendants on the plaintiffs' informed consent claim because the plaintiffs were unable to rebut the defendants' prima facie showing of lack of proximate cause. Although the child's mother alleged that she was not properly informed after the June 30, 2004, ultrasound that vaginal delivery involved excessive risk, she failed to establish that the decision not to perform a caesarean section on June 30th led to the developmental problems that the infant experienced. The court correctly concluded that there was a failure to prove a prima facie case that the action of Dr. Moskowitz or the hospital was the cause of any developmental delay. Fernandez v. Moskowitz, 2011-05334 NYAPP (6/21/2011)-NY

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