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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