Sepulveda v. Dayal ( 2016 )

Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about August 6, 2014, which, to the extent appealed from, denied the part of defendants’ motion that sought summary judgment dismissing the complaint as against defendant Ashlesha Dayal, M.D., affirmed, without costs.

The infant plaintiff in this case was born with a neuroblas-toma tumor, and, as a result, suffered injuries, including spinal cord damage. Physicians did not detect any anomalies during prenatal ultrasounds performed at approximately 13 weeks, 19.6 weeks, and 30.9 weeks of gestation; plaintiffs claim that defendant’s failure to detect the tumor in útero caused a delay in treatment, which in turn resulted in the injuries to the infant plaintiff’s neurological system.

Both parties’ experts proffered opinions on whether the infant plaintiff’s neuroblastoma could have been discovered before birth. One of the experts testifying on defendant’s behalf opined that a physician cannot retrospectively assess the size of a tumor in útero based upon the size of the tumor at diagnosis. Moreover, the expert concluded, because neuroblasto-mas are extremely aggressive tumors, it was “more likely than not” undetectable during plaintiff’s pregnancy. Thus, the expert opined, any testimony implying that a physician would be able to identify the size of a tumor in útero based upon the size of the tumor at diagnosis would be speculative and not generally accepted within the medical community.

Yet another expert testifying for defendant opined that there is no scientifically accepted standard of “tumor doubling times” in assessing the size and development of a neuroblastoma. Accordingly, the expert opined, any testimony relating to tumor growth and the ability to detect the size of a tumor in útero based on the size of the tumor at diagnosis would be testimony not generally accepted within the medical or scientific community.

On the other hand, one of the experts testifying on plaintiffs’ behalf stated that in his opinion, with a reasonable degree of scientific certainty, the neuroblastoma was present in the infant plaintiff’s body from conception and was of a size large enough to be detected on the third-trimester sonogram taken at 30.9 weeks. The basis for the expert’s opinion was that, during the first two months of the infant plaintiff’s life, she became unable to move her lower extremities — a deterioration that must have begun before her birth. Accordingly, the expert opined, it was “more likely than not” that the “huge” tumor was evident in the third trimester, when defendant was screening for anomalies in the developing fetus, and that it was a departure from accepted standards of medical practice for defendant to have failed to observe and diagnose the tumor in the infant plaintiff.

A second expert for plaintiffs opined that, based on the medical literature, the tumor, which was excised when the infant plaintiff was eight weeks old, was present and growing in útero. The expert cited articles showing that fetal neuroblastomas have been detected by routine prenatal sonography, and opined that the mass should have been detected before the birth— specifically, at the ultrasound performed at 30.9 weeks. Another of plaintiffs’ experts testified that, based on studies involving mice, and based on the clinical behavior of the infant’s “huge” tumor, the neuroblastoma was more likely than not detectable at the ultrasound performed at 30.9 weeks. Notably, although images from the scan taken at 30.9 weeks would have ordinarily been saved, hospital administration told defendant, after plaintiffs filed this action, that the images could not be located.

Defendant’s experts established a prima facie case that the ultrasound studies were properly interpreted and that none of defendant’s acts or omissions caused the infant plaintiff’s alleged injuries. In light of plaintiffs’ expert opinions to the contrary, however, we cannot hold on the record presented to us that the opinions of plaintiffs’ experts are not generally accepted within the medical and scientific communities. Accordingly, the motion court properly set the matter down for a Frye hearing (Frye v United States, 293 F 1013 [DC Cir 1923]) to determine (1) whether it is generally accepted in the medical and scientific communities that a physician may offer an opinion to a reasonable degree of medical certainty as to when a tumor such as the infant plaintiff’s tumor would have been detectable by ultrasound examination; and (2) whether it was possible to use any formula, including a doubling formula, to assess whether a neuroblastoma would have been detectable at the ultrasound of the infant plaintiff performed at 30.9 weeks (Lara v New York City Health & Hosps. Corp., 305 AD2d 106 [1st Dept 2003]).

The dissent’s assertion that the opinions of plaintiffs’ experts were “speculative” and “unsupported by the record” puts the cart before the horse. As noted above, plaintiffs’ experts based their opinions partially on peer-reviewed, published articles stating that routine prenatal sonography had detected fetal neuroblastomas. Whether the information conveyed in these articles has gained general acceptance in the medical community, and thus provides support for the opinions of plaintiffs’ experts, is precisely the topic of a Frye hearing. To reject the opinions of plaintiffs’ experts before holding a Frye hearing would be to make a determination on the soundness of the experts’ conclusions — a determination that would be premature without testing the reliability of the scientific evidence that plaintiffs have proffered.

Concur — Saxe, Moskowitz and Fein-man, JJ.