An eight-year-old girl collapsed in her schoolyard suffering from an acute ischemic stroke. She and her mother filed a lawsuit against the state department of education (DOE), New York City Health and Hospitals Corporation (hospital), and the City of New York (city). The complaint asserted negligence and medical malpractice claims. As to the DOE and the City, the plaintiffs alleged that their treatment delays worsened the child plaintiff's condition. As to the hospital, the complaint stated that it delayed CT scan testing for over an hour and failed to administer tissue plasminogen activator (tPA), a treatment using drugs to dissolve dangerous clots in blood vessels, which worsened the girl’s condition.
The Bronx County Supreme Court granted the city, DOE, and hospital’s motion for summary judgment.
The Appellate Division of the New York Supreme Court, First Department, affirmed. The court held that the hospital established its prima facie entitlement to summary judgment, the child and mother failed to raise an issue of fact, the DOE demonstrated that it fulfilled its duty of adequately supervising the students in their charge, and the city was not a proper party.
The hospital established its prima facie entitlement to summary judgment. The hospital submitted the affirmation of a medical expert establishing that it rendered acceptable medical care to the girl. Its expert affirmed that tPA was untested on children and, therefore, unsafe for children with an acute ischemic stroke. The mother and child asserted that their expert’s opinion that anticoagulants are the standard of care in treating acute ischemic strokes in children was a novel theory. The court held that this was not the type of novel theory that necessitated a hearing. It was merely an opinion stating one form of treatment, albeit one conceded by the expert’s supporting literature to be untested and unsafe.
The child and mother failed to raise an issue of fact. The medical literature on which the mother and child’s expert relied was in agreement with the defense expert’s opinion that anticoagulants and tPA were both untested and unsafe for children who had suffered a stroke.
The DOE demonstrated that it fulfilled its duty of adequately supervising the students in their charge. The DOE had staff present in the schoolyard when the girl collapsed, one of whom caught her before she fell. The DOE promptly assessed her condition and contacted EMS personnel when it became apparent that the child had difficulty standing and moving her leg.
The Appellate Division of the New York Supreme Court, First Department, affirmed the trial court’s grant of summary judgment in favor of the city, DOE, and hospital.
See: Keilany B. ex rel. Xiomara S. v. City of New York, 2014 WL 5714376, 2014 N.Y. Slip Op. 07598 (N.Y.A.D. 1 Dept., November 6, 2014) (not designated for publication).
See also Medical Law Perspectives, December 2013 Report: Thicker Than Water: Liability When Blood Clots Cause Injury or Death
See also Medical Law Perspectives, June 2012 Report: Too Much, Too Little, Too Late: Injuries from Delays and Failures to Perform CT Scans or Overexposure to Radiation