An infant was born prematurely at the hospital with a gestational age of 25 weeks and birth weight of one pound, nine ounces. He had low Apgar scores and his respiratory rate was irregular. He was intubated and transferred to the neonatal intensive care unit. Twenty-six days after birth, the infant’s blood glucose level spiked. The following days he had high blood glucose levels. The hospital did not perform a sepsis workup. Despite other treatment and monitoring, he exhibited complications during the early morning of his 29th day. Thirty days after he was born, the infant was pronounced dead due to necrotizing enterocolitis (NEC), a disease which causes intestinal tissue to die.
The infant’s mother sued the hospital. During discovery, a resident and attending physician who treated the infant at the hospital were deposed. The hospital filed a motion for summary judgment accompanied by an expert’s affirmation that the hospital did not depart from good and accepted practice in treating the infant before his death. The mother filed an opposition to the motion accompanied by an affirmation by an expert. The hospital countered that the mother’s expert opinion was conclusory. The Bronx County Supreme Court denied the hospital’s motion for summary judgment.
The Appellate Division of the New York Supreme Court, First Department, affirmed. The court held that a triable issue of fact existed as to whether the hospital departed from good and accepted practice in failing to timely recognize the infant's hyperglycemia. The court found that the detailed, nonconclusory, factually supported affirmation of the hospital's expert established prima facie that the hospital did not depart from good and accepted practice in treating the infant before his death. However, in opposition, the mother raised a triable issue of fact as to whether the hospital departed from good and accepted practice.
Specifically, the expert noted that that hospital failed to timely recognize the infant's hyperglycemia and treat him, including performing a sepsis workup, when his blood glucose level spiked on day 26. Contrary to hospital's contention, the court held that the opinion of mother's expert was not conclusory, but was based on the infant's medical records, which showed a spike in his blood glucose level on day 26 and high glucose levels on subsequent days. Further, the expert's opinion that hyperglycemia was a sign of sepsis, which is a sign of NEC, was supported by the deposition testimony of the resident and attending physician who treated the infant, and further supports the conclusion that the baby was developing NEC as early as day 26.
The Appellate Division of the New York Supreme Court affirmed the trial court’s denial of the hospital’s motion for summary judgment.
See: Robinson v. Bronx-Lebanon Hosp. Center, 2014 WL 289777, 2014 N.Y. Slip Op. 00451 (N.Y.A.D. 1 Dept., January 28, 2014) (not designated for publication).