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Kaplan v. Karpfen

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 30, 2008

REBECCA KING KAPLAN, ETC., PLAINTIFF-APPELLANT,
v.
ROBIN B. KARPFEN, M.D., ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, Bronx County (Dianne T. Renwick, J.), entered August 13, 2007, which, to the extent appealed from as limited by the briefs, granted the motions of defendants Satish Kumar Rohatgi, M.D., and Horton Hospital for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Lippman, P.J., Gonzalez, Nardelli, Buckley, Acosta, JJ.

7009/00

Plaintiffs failed to raise a triable issue of fact in opposition to defendants' demonstration of their entitlement to summary judgment. Their experts' opinions that the infant plaintiff suffered traumatic brain injury either during birth or shortly thereafter were conclusory and speculative (see Alvarez v Prospect Hosp., 68 NY2d 320, 324-325 [1986]; Bullard v St. Barnabas Hosp., 27 AD3d 206 [2006]). While these opinions were based in large part on the presence of a cephalohematoma noted a few days after the birth, none of plaintiffs' experts contested the assertions of defendants' experts that this injury, and the others noted, including a broken clavicle, were superficial, were a normal consequence of an uncomplicated birth, and did not indicate brain damage. Nor did they explain except in conclusory terms how or when the alleged traumatic brain injury occurred, the causal relationship between the injury and plaintiff's present behavioral problems, or the standard of care that defendants violated.

Plaintiffs' psychologist and psychiatrist failed to demonstrate that they possessed sufficient knowledge or expertise to testify outside their specialties as to either the existence and cause of plaintiff's alleged brain injury or defendants' alleged deviation from the accepted standard of care for pediatricians or obstetricians and gynecologists (see Romano v Stanley, 90 NY2d 444, 451-452 [1997]; Browder v New York City Health and Hosps. Corp., 37 AD3d 375 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081230

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