Senior Trial Partner Christopher A. Terzian, assisted by Partner Michael B. Manning, obtained a defense verdict on behalf of our pediatric practice group in April 2024 before the Hon. William J. Giacomo in New York Supreme Court, Westchester County.
This case involved an infant-plaintiff who was born in July 2018. In December 2018, the plaintiff-mother observed stool emanating from the infant’s vagina and after being referred to the hospital, the infant was diagnosed with anal stenosis and rectovaginal fistula. Additional findings included a duplicate vagina and duplicate cervix. The infant underwent a colostomy, followed by a posterior sagittal anorectoplasty (PSARP) and eventually a colostomy reversal. The PSARP was performed by a world-renown pediatric colorectal surgeon in Colorado.
The plaintiffs claimed that the pediatric group through one of its pediatricians, as well as the co-defendant pediatric gastroenterologist, failed to timely diagnose the infant’s severe anal stenosis and rectovaginal fistula, at the infant’s respective office visits in September and November 2018. Plaintiffs conceded that the infant’s anal stenosis was congenital, however, their expert claimed that the alleged delay in diagnosis resulted in the infant’s colon becoming impacted with stool for a prolonged period and due to the prolonged impaction of stool, a fistula developed between the colon and vagina wall. Plaintiff further argued that the infant-plaintiff suffered a loss of chance of regaining complete continence as a result of the delayed diagnosis, and would require life-long bowel management, as well as additional surgeries and psychological issues.
Plaintiffs’ liability expert opined that the pediatrician should have performed a digital rectal examination on the infant-plaintiff at the November office visit based upon complaints of spitting up, chronic constipation and abdominal distension. To demonstrate that the infant’s abdomen was distended, plaintiffs’ expert relied on photographs of the infant taken two days prior to the subject office visit, which plaintiff’s expert opined revealed chronic constipation.
At trial, defendants called experts in the field of pediatrics and pediatric gastroenterology, as well as the infant’s colorectal surgery expert who performed the PSARP in order to discuss the infant’s surgery, the other congenital anomalies associated with her diagnosis and long-term prognosis/bowel management. Importantly, defendant established that there was no evidence of abdominal distension during the four-month well visit as documented by the pediatrician and as testified to by the pediatrician and plaintiff-mother. The sole evidence proffered by plaintiff was the photograph taken 48-hours earlier depicting the infant-plaintiff fully clothed. The defense experts opined that a medical diagnosis of abdominal distension could only be determined upon physical examination, including palpating the abdomen, visualizing the abdomen and listening for bowel sounds, and not a photograph capturing a moment in time. Additionally, it was established that distension or bloating in infants can be transient and the result of gas or air. Thus, there was no indication to perform a digital rectal examination and the pediatrician’s plan to add fruit, oatmeal and more fiber was appropriate. Moreover, the defense established that many of the claimed future needs/care for the infant would have been required irrespective of when the diagnosis was made, and that her current bowel management was contributing to her current motility issues.
During summation, plaintiffs’ counsel asked the jury to award damages in excess of $25 million.
After a nearly three-week trial, the jury returned a unanimous defense verdict to our client, as well as the co-defendant pediatric gastroenterologist.