SUMMARY JUDGMENT FOR OB/GYN GROUP: Infant Born With No Arms

Ginette Portera

Attorney, Ginette Portera, successfully obtained summary judgment in favor of our clients, 2 OB/GYN physicians, an OB/GYN group, and a sonogram technician employed by the OB/GYN group, dismissing the plaintiff’s medical malpractice action on the grounds that the plaintiff could not establish pecuniary damages with reasonable certainty. The case involved an alleged failure of Defendants to diagnose and inform the plaintiff of her son’s congenital birth defects during her pregnancy in 2000, specifically his missing upper extremities. Plaintiff alleges that had she known of this condition, she would have terminated the pregnancy.  Defendants’ motion for summary judgment as to liability was denied by the Court in January of 2004. Discovery was recommenced after it was learned the plaintiff brought a second action against a hospital alleging liability for her child’s congenital birth defects (she claimed to have been present for an x-ray at the hospital, with no protection provided, after she advised that she was newly pregnant). The Court directed plaintiff’s counsel to file the Note of Issue in 2018, subject to the completion of outstanding discovery. The child subsequently reached the age of majority and refused to sign authorizations for his care or present for a deposition. Thus, discovery was never completed.

Defendants made a second motion for summary judgment, this time as to damages only, after overcoming the hurdle of “good cause” for bringing a motion in excess of the sixty (60) day court deadline. A parent bringing this type of action may seek to recover only the increased financial obligation arising from the extraordinary medical treatment rendered the child during minority. Good cause existed as this motion could not have been made until the child reached the age of majority. The Second Department has consistently held that monetary damages for this cause of action are limited to expenses incurred directly by the parent, not covered by Medicaid or reimbursed by other sources. Plaintiff acknowledged this in their opposition papers and stated that she was claiming “pecuniary damages only for the services that plaintiff herself actually provided.” In essence, the plaintiff did not argue that she incurred extraordinary out-of-pocket expenses for her son’s medical treatment, but asserts vaguely that she provided the equivalent, unpaid medical treatment of a skilled nurse, physical/occupational therapist, and home health aide, and that she should be compensated as such. The Court granted our MSJ and concurred with our argument that there is no authority to recover for damages. 

Farrakhan v. Obiakor Obstetrics & Gynecology, P.C.: NY Law Journal Link