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Court Dismisses Neurologically Impaired Child's Case Against Hospital at the Close of Plaintiff's Proof During Trial

March 27, 2015

The infant-plaintiff was born in 1988 with a vestigial tail at the base of his spine. He contended that that cutaneous marker was a well-known sign of possible underlying spinal dysraphism. At age seven, the child was diagnosed with a lipoma which had tethered his spinal cord. Neurosurgery was performed at age 7 1/2, leaving the child neurologically impaired to the extent that he walked with a limp, he had to self-catheterize four times a day in order to empty his urinary bladder, he had sexual dysfunction, and he had constant pain in his lower back. Sean F.X. Dugan represented the Hospital and its physicians. The claim was that the Hospital neonatologist, on examining the tail at birth in the defendant Hospital, advised the attending pediatrician that the tail was simply a skin appendage to be snipped off, without further investigation. Plaintiff claimed that the advice was bad, and that the neonatologist should have advised the pediatrician to follow with an MRI, a CT scan and myelogram, or to have the child seen by a pediatric neurosurgeon or neurologist.

 

Mr. Dugan and Charles S. Schechter shaped the case during trial in such a way as to exclude, as hearsay, the neonatologist’s alleged advice to the attending pediatrician given at birth. Plaintiffs’ counsel failed to file suit against that neonatologist, and defense counsel successfully argued that plaintiff had not proven that the neonatologist was an employer of the Hospital or held out by the Hospital as its own. Mr. Dugan further established that, in 1988 when this child was born, it was not common knowledge that these vestigial tails, the base of which was proven by Mr. Dugan to not be attached to the spinal canal, was a cutaneous marker of underlying spinal pathology, such as a lipoma with tethered cord. That did not become generally known until several years later.

 

At trial, plaintiffs’ counsel called a pediatrician, a pediatric neurosurgeon, and a pediatric urologist to discuss the urinary and sexual dysfunction, and a neonatologist to discuss the state of knowledge in 1988. Mr. Dugan successfully precluded the neonatologist from testifying against the Hospital, on the ground there was no foundation for his testimony. When the young plaintiff testified, there were no dry eyes in the courtroom. At the close of plaintiffs’ proof, Mr. Dugan asked the Court for an order directing judgment in favor of the defendant Hospital, on the ground that there was no evidence that there was negligence, or a departure from the 1988 standards of care, on the part of any healthcare professional for which the Hospital could be held responsible. After several hearings, this motion was eventually granted by the Court, and the case was dismissed.

 

Verdict Reporter states that this was one of the ten biggest verdicts of the year. Plaintiff's counsel did not appeal the Trial Courts decision.

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