Lugo v. N.Y. City Health

CourtNew York Supreme Court Appellate Division
Citation929 N.Y.S.2d 264,89 A.D.3d 42,2011 N.Y. Slip Op. 06475
PartiesJacob LUGO, etc., et al., appellants,v.NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, etc., respondent.
Decision Date13 September 2011

89 A.D.3d 42
929 N.Y.S.2d 264
2011 N.Y. Slip Op. 06475

Jacob LUGO, etc., et al., appellants,

Supreme Court, Appellate Division, Second Department, New York.

Sept. 13, 2011.

[929 N.Y.S.2d 266]

Fitzgerald & Fitzgerald, P.C., Yonkers, N.Y. (John E. Fitzgerald, John M. Daly, Eugene S.R. Pagano, Mitchell L. Gittin, and John R. Langdell of counsel), for appellants.Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Jane L. Gordon of counsel), for respondent.REINALDO E. RIVERA, J.P., JOSEPH COVELLO, ANITA R. FLORIO, and PLUMMER E. LOTT, JJ.COVELLO, J.[89 A.D.3d 43] Introduction

New York courts apply the rule of Frye v. United States, 293 F. 1013 that expert testimony based on scientific principles [89 A.D.3d 44] or procedures is admissible, but only after a principle or procedure has gained general acceptance in its specified field. In this medical malpractice action, the principal question presented on this appeal is whether the Supreme Court, in applying the Frye test, properly determined that the opinion testimony of the plaintiffs' experts that the infant plaintiff's brain injuries were caused by an episode of severe neonatal hypoglycemia lasting 81 minutes was inadmissible. For the reasons set forth below, we answer this question in the negative.

Factual and Procedural BackgroundFactual Background

In 2001, the plaintiff Brenda Almodovar (hereinafter the mother), who was pregnant with the infant plaintiff, Jacob Lugo, began receiving prenatal care at Woodhull Hospital (hereinafter Woodhull), a facility owned and operated by the defendant. On August 11, 2001, at 31 weeks of gestation, the mother was admitted to Woodhull for signs of preterm labor. During that admission, her blood glucose level was measured at 26 mg/dL, an abnormally low level, but was subsequently measured at a normal

[929 N.Y.S.2d 267]

level. The mother was discharged on August 13, 2001.

On September 2, 2001, at 34 weeks of gestation, the mother, who had a history of seizures dating back to childhood, was brought to Woodhull by emergency medical services (hereinafter EMS) personnel after experiencing a grand mal seizure. On that date, she was evaluated but not admitted.

On October 5, 2001, the mother gave birth to Lugo at Woodhull by normal spontaneous vaginal delivery at 11:39 A.M. Lugo's Apgar scores, 9 at one minute, and 9 at five minutes, were “excellent,” and he initially appeared normal. However, by the time Lugo was 40 minutes old, he was experiencing tremors and, at 12:25 P.M., he was admitted to the neonatal intensive care unit.

According to the deposition testimony of Dr. Frantz Brea, the director of neonatology at Woodhull, tremors are a sign of hypoglycemia 1 in a newborn. At 12:25 P.M., when Lugo was admitted to the neonatal intensive care unit, his blood glucose level was measured, through a “heel stick” test, at less than 20 mg/dL, and laboratory testing of blood drawn from Lugo at that time later measured a glucose level of 3 mg/dL. According to Dr. Brea, a normal glucose level for an infant approximately 40 minutes old is about 40 mg/dL. Lugo was given a “glucose IV push” and a glucose infusion, and at 1:00 P.M., his blood glucose [89 A.D.3d 45] level was measured at 71 mg/dL, within normal limits. Thereafter, Lugo's blood glucose level remained within normal limits until he was discharged from Woodhull on October 7, 2001.

In 2002, Lugo was referred to Woodhull for evaluation due to his delays in reaching certain developmental milestones. On April 29, 2003, Lugo underwent a brain magnetic resonance imaging (hereinafter MRI) examination at Brookdale Hospital, and the resulting MRI report set forth a finding of “non-specific white matter loss in parietal and occipital lobes with dilation of the occipital horn ... which suggests periventricular leukomalacia, as can be seen with perinatal ischemia.” 2 Ultimately, Lugo was diagnosed with cerebral palsy (spastic diplegia type).

Commencement of this Action

Lugo, by his mother, and the mother, suing derivatively, commenced this action, inter alia, to recover damages for medical malpractice. In their verified bill of particulars, the plaintiffs alleged that the defendant had departed from good and accepted medical practice by, among other things, failing to timely diagnose and treat the hypoglycemia of both the mother and Lugo. They alleged that Lugo's hypoglycemia had caused, among other things, his brain damage and cerebral palsy.

The Defendant's Motion for Summary Judgment or a Frye Hearing

By notice of motion dated May 15, 2007, the defendant moved for summary judgment dismissing the complaint or, in the alternative, for a Frye hearing in the event that the plaintiffs, in opposition to the motion, proffered a sworn statement from an expert opining that Lugo's injuries were caused by the “possible transient episode” of maternal hypoglycemia on August 11, 2001, or the “transient episode” of hypoglycemia on October 5, 2001. As relevant here, the defendant supported its motion with the expert affirmation of Dr. Armando Grassi, who opined that Lugo's

[929 N.Y.S.2d 268]

episode of neonatal hypoglycemia did not cause his alleged injuries. According to Dr. Grassi, the white matter loss shown on Lugo's April 2003 MRI was in the periventricular area and was a typical lesion resulting from a decrease in oxygenation or perfusion to the brain. In contrast, he affirmed, lesions typical of hypoglycemia are “diffuse lesions” in the brain and are not found in the periventricular area. Dr. Grassi opined that Lugo's brain injury, as depicted on his MRI, was a result of decreased oxygenation to his brain at 32–34 weeks gestation, and was not caused by the “transient hypoglycemic episode” at his birth. Dr. Grassi asserted that it was not accepted in the [89 A.D.3d 46] medical profession that “a short and promptly treated” episode of hypoglycemia in a newborn could cause brain damage in the periventricular area, as seen on Lugo's MRI film, and that Dr. Grassi had “never heard or read of a single case of periventricular leukomalacia caused by hypoglycemia.”

In opposition, the plaintiffs argued, inter alia, that summary judgment was improper because there were triable issues of fact concerning, among other things, the nature and cause of Lugo's periventricular leukomalacia (hereinafter PVL) and cerebral palsy. As relevant here, they submitted the expert affirmation of Dr. Rosario Trifiletti. Dr. Trifiletti opined that Lugo had been born with “profound hypoglycemia,” and that the delay in diagnosis and treatment from 11:39 A.M. to 1:00 P.M. was a substantial factor in causing his brain damage. Dr. Trifiletti disagreed with Dr. Grassi's conclusion that the mother's seizure had caused Lugo's brain injuries. According to Dr. Trifiletti, Lugo's normal appearance and good Apgar scores at birth, and the delay of the onset of his tremors until approximately 40 minutes after birth, were consistent with depletion of glucose stores after birth rather than a primary hypoxic injury. Dr. Trifiletti characterized Lugo's post-birth tremors as “subtle seizures” as defined in Volpe's Neurology of the Newborn (hereinafter the Volpe textbook), and he opined that Lugo's “tremors” or “subtle seizures” had been caused by his profound hypoglycemia at birth.

In Dr. Trifiletti's opinion, Lugo's MRI report was “essentially accurate” in its finding of PVL about the posterior (occipital) horns of the lateral ventricles, and he disagreed with Dr. Grassi's assertion that the pattern of injury it depicted was not characteristic of lesions caused by hypoglycemia. Dr. Trifiletti affirmed that there is “substantial overlap” in the lesions resulting from hypoxia and from hypoglycemic injury. Citing Arie L. Alkalay, et al., Brain Imaging Findings in Neonatal Hypoglycemia: Case Report and Review of 23 Cases, 44 Clin Pediatr 783–790 (2005), an article published in the November/December 2005 edition of the journal Clinical Pediatrics, Dr. Trifiletti asserted that there was a tendency towards occipital injury (as was seen in Lugo's case) with hypoglycemia. He saw nothing on Lugo's MRI film that excluded hypoglycemia as the etiology of the “obvious white matter loss and occipital horn dilation” and, in his experience of reviewing brain MRIs as part of his clinical practice over the years, he had seen “similar patterns of brain injury in comparable instances of perinatal hypoglycemia.”

[89 A.D.3d 47] In its reply papers, the defendant proffered the expert affirmation of Dr. Steven Pavlakis. Dr. Pavlakis affirmed, among other things, that after performing a search on “Pub Med,” he found no evidence that the white matter damage seen on Lugo's MRI film could be caused by “short lived transient hypoglycemia,” and that it was not generally accepted that a period of transient neonatal hypoglycemia such as that suffered by Lugo could cause

[929 N.Y.S.2d 269]

his clinical outcome. Dr. Pavlakis disagreed with Dr. Trifiletti's opinion that Lugo had suffered from “subtle seizures” as defined in the Volpe textbook, and he asserted that the Alkalay article cited by Dr. Trifiletti did not discuss any patients who had experienced an episode of hypoglycemia similar to that experienced by Lugo.

In an order dated November 5, 2007, the Supreme Court granted that branch of the defendant's motion which was for a Frye hearing and held in abeyance that branch of the defendant's motion which was for summary judgment dismissing the complaint. The Supreme Court determined that the plaintiffs' experts had provided “scant reference” to medical or scientific literature to support their opinions, and that a Frye hearing should be held to determine whether their deductions were based on principles which were sufficiently established to have gained general acceptance.

The Frye Hearing

After additional motion practice not at issue on this appeal, the Supreme Court conducted a Frye...

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