MCB’s client Hospital was granted summary judgment, based on the preclusion of plaintiffs’ expert’s causation testimony, in Supreme Court, Monroe County by Justice Rosenbaum. On plaintiffs’ appeal to the Appellate Division, Fourth Department, Senior Trial Partner William P. Brady and Partner Barbara D. Goldberg were successful in obtaining an affirmance of the lower court’s decision in MCB’s favor. Briefly, the case involved a then 60 year old woman, who underwent treatment during multiple hospital admissions for complaints of back pain, lower extremity numbness and pain in her left shoulder blade. During the last of these admissions, she was evaluated by a consulting neurologist employed by our client Hospital, who was providing neurology services at the treating hospital. The consulting neurologist immediately suspected Guillain Barre Syndrome (GBS), a rare neurological disorder, based on the patient’s progressively worsening symptoms. The diagnosis was confirmed by a lumbar puncture the following day and treatment with intravenous immunoglobulin (IVIg) was commenced. In opposition to our motion for summary judgment and preclusion of plaintiffs’ expert’s anticipated testimony regarding the effects of a delay in treatment under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) and/or Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006), plaintiffs’ expert took the position that the consulting neurologist departed from the standard of care by not ordering that a lumbar puncture be performed by Interventional Radiology on a “STAT” or immediate basis to confirm the diagnosis, after he himself was unable to perform a lumbar puncture. The patient claimed that our client Hospital was vicariously liable for the supposed delay in treatment attributable to the consulting neurologist, and that the defendants’ alleged failure to timely diagnose and treat GBS resulted in respiratory failure, a prolonged hospitalization followed by extensive inpatient rehabilitation and outpatient therapy, and permanent injuries to her upper and lower extremities. The Appellate Division affirmed the lower court’s decision granting MCB’s motion for summary judgment and dismissed the case on behalf of our client Hospital, finding that plaintiff’s Neurology expert failed to raise triable issues of fact as to proximate causation. So much of the order appealed from as granted summary judgment to the co-defendants was affirmed as well. The Appellate Division noted that plaintiffs’ expert had acknowledged that in order to be effective, IVIg therapy must be commenced within a certain time from the onset of symptoms, and that here, treatment was commenced within that window. The expert’s opinion that treatment should have been started sooner “was contrary to what the expert agreed was appropriate,” and therefore amounted to nothing more than conclusory and speculative assertions that earlier detection and treatment would have produced a different outcome.
