Victor Q. Ex Rel. Yuselle v. v. Bronx Lebanon Hospital Center

Appellate Division of the Supreme Court of New York

Victor Q. Ex Rel. Yuselle v. v. Bronx Lebanon Hospital Center

2017 NY Slip Op 2742, 149 A.D.3d 456, 52 N.Y.S.3d 42

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 6, 2017

Docket3658N 350637/07 83813/11

StatusPublished

This text of 2017 NY Slip Op 2742 (Victor Q. Ex Rel. Yuselle v. v. Bronx Lebanon Hospital Center) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Victor Q. Ex Rel. Yuselle v. v. Bronx Lebanon Hospital Center, 2017 NY Slip Op 2742, 149 A.D.3d 456, 52 N.Y.S.3d 42 (N.Y. Ct. App. 2017).

Pincite

Opinion

Order, Supreme Court, Bronx County (Stanley Green, J.), entered November 4, 2016, which, after a Frye hearing (Frye v United States, 293 F 1013 [DC Cir 1923]), denied defendant hospital’s motion and third-party defendant doctors’ (collectively appellants) motion insofar as they sought to preclude plaintiffs’ expert from testifying as to causation, unanimously affirmed, without costs.

In this medical malpractice action, plaintiffs allege that the infant plaintiff suffered brain damage as a result of appellants’ failure to diagnose and treat fetal hypoxia-ischemia.

The motion court properly denied the motions to preclude. The articles proffered by plaintiffs were sufficient to establish that it is generally accepted that perinatal hypoxia can be the cause of brain injury, in the absence of evidence of neurological injury in the neonatal period (see Marso v Novak, 42 AD3d 377, 378-379 [1st Dept 2007], lv denied 12 NY3d 704 [2009]). The articles established that infants who experienced a hypoxic event in the neonatal period but were asymptomatic for neurological injuries might still manifest such injuries later in life. That the infants in these articles exhibited certain manifestations of hypoxia not exhibited by the infant plaintiff is irrevelant (see Zito v Zabarsky, 28 AD3d 42, 46 [2d Dept *457 2006] [literature relied on to establish general acceptance need not involve “circumstances virtually identical to those of the plaintiff”]).

Even if some of the infant plaintiffs symptoms are attributable to his autism, the cause of which is unknown, some of his impairments may also be due to brain damage resulting from hypoxia (see Bygrave v New York City Hous. Auth., 65 AD3d 842, 846-847 [1st Dept 2009]).

We have considered appellants’ remaining contentions and find them unavailing.

Concur — Renwick, J.R, Mazzarelli, Manzanet-Daniels, Feinman and Webber, JJ.

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Order, Supreme Court, Bronx County (Stanley Green, J.), entered November 4, 2016, which, after a Frye hearing (Frye v United States, 293 F 1013 [DC Cir 1923]), denied defendant hospital’s motion and third-party defendant doctors’ (collectively appellants) motion insofar as they sought to preclude plaintiffs’ expert from testifying as to causation, unanimously affirmed, without costs.

In this medical malpractice action, plaintiffs allege that the infant plaintiff suffered brain damage as a result of appellants’ failure to diagnose and treat fetal hypoxia-ischemia.

The motion court properly denied the motions to preclude. The articles proffered by plaintiffs were sufficient to establish that it is generally accepted that perinatal hypoxia can be the cause of brain injury, in the absence of evidence of neurological injury in the neonatal period (see Marso v Novak, 42 AD3d 377, 378-379 [1st Dept 2007], lv denied 12 NY3d 704 [2009]). The articles established that infants who experienced a hypoxic event in the neonatal period but were asymptomatic for neurological injuries might still manifest such injuries later in life. That the infants in these articles exhibited certain manifestations of hypoxia not exhibited by the infant plaintiff is irrevelant (see Zito v Zabarsky, 28 AD3d 42, 46 [2d Dept *457 2006] [literature relied on to establish general acceptance need not involve “circumstances virtually identical to those of the plaintiff”]).

Even if some of the infant plaintiffs symptoms are attributable to his autism, the cause of which is unknown, some of his impairments may also be due to brain damage resulting from hypoxia (see Bygrave v New York City Hous. Auth., 65 AD3d 842, 846-847 [1st Dept 2009]).

We have considered appellants’ remaining contentions and find them unavailing.

Concur — Renwick, J.R, Mazzarelli, Manzanet-Daniels, Feinman and Webber, JJ.

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Bluebook (online)

2017 NY Slip Op 2742, 149 A.D.3d 456, 52 N.Y.S.3d 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/victor-q-ex-rel-yuselle-v-v-bronx-lebanon-hospital-center-nyappdiv-2017.

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