4/5/24 ARFD defense verdict in Westchester County involving claims of life-long injuries to a 3-month-old infant and demand in excess of 25-million dollars
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For the second time in the last few months, I would like to thank a carrier for having the faith and courage to adopt an aggressive defense strategy, in this case to try a high-exposure matter involving an infant-plaintiff to verdict (the first trial in New York for this carrier).
After a trial that began with jury selection in mid-March, followed by three weeks of aggressive prosecution at trial by plaintiff’s counsel, on April 5, 2024, I, along with my colleague Sara Silverhardt, were able to secure a defense verdict on behalf of a pediatric gastroenterologist in Westchester County.
Plaintiff claimed that there was a failure to consider an anorectal malformation (severe anal stenosis) and perform a digital rectal exam in a three-month-old infant, resulting in a 12-week delay in diagnosis causing alleged colonic neuropathy, and as a result the infant-plaintiff suffering a ‘loss of chance’ of regaining complete continence. It was claimed the infant-plaintiff would never achieve a ‘leak-free life’, would require life-long bowel management, up to three additional surgeries, and have lifetime psychological issues. The plaintiff asked for damages in excess of 25-million dollars.
At trial, we were able to demonstrate that: the infant-plaintiff had other relevant congenital anomalies at birth associated with her condition, including a mega rectum and recto-vaginal fistula, and was unfortunately going to require lifelong bowel management regardless of timing of diagnosis; that the current bowel management was deficient and the reason for current motility issues; that the purpose of the pediatric GI visit was only for an upper-GI related issue, thus did not mandate the need for a digital rectal exam; that photographs taken more than two days after the subject visit were not probative of whether abdominal distention existed on the day of the visit.
We, in conjunction with our collaborative co-defendant (representing a medical group for a separate pediatric visit), vigorously challenged all of plaintiffs’ experts, and presented well-credentialed experts to refute plaintiffs’ claims, including a world-renown pediatric surgeon, who operated on the infant-pliantiff and had never testified in court in his 40-year career.
Following over three hours of summations by all parties, the jury was given the case late in the day on 4/4/24, and the following day, after approximately three total hours of deliberations, rendered a unanimous 6-0 finding of no liability as to our client, as well as a 6-0 finding of no liability as to the co-defendant medical practice.
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