Ari I. Bauer, Esq. successfully defends an appeal in a medical malpractice action


Ari I. Bauer, Esq. successfully defended an appeal before the Appellate Division, First Department, in a medical malpractice action claiming that the defendant/pediatricians failed to timely diagnose an infant-plaintiff’s brain tumor resulting in significant and permanent neurological deficiencies. An article entitled “NY Physicians Beat Medical Malpractice Suit Over Baby’s Brain Tumor” was published in Law 360 on January 10, 2017 (text below) detailing this highly contested appeal.


Law360, Los Angeles (January 10, 2017, 5:25 PM EST) -- A New York appeals court on Tuesday tossed a medical malpractice suit accusing a Manhattan hospital and various pediatricians of failing to diagnose a baby's brain tumor, saying the plaintiff's expert witnesses offered conclusory and speculative opinions.


A five-judge panel for the New York Supreme Court Appellate Division's First Department affirmed a trial court's ruling, which cleared Mount Sinai Medical Center, Alan Harawitz and other pediatricians of medical malpractice. The doctors were accused of deviating from the proper standard of care by failing to diagnose an infant for medulloblastoma, a type of brain tumor.


The appellate panel determined that expert witness testimony submitted by the infant's parents, Frank and Francis Leva, asserting that the baby's condition could have been discovered earlier, was conclusory and speculative and failed to raise a triable issue of fact given the defendants' expert witnesses who testified to the contrary.


"The pediatric expert recounted the infant's symptomatology inaccurately, which undermined the basis of the opinion, failed to address the defense expert's opinions, and relied upon facts not contained in the record," the court wrote in a four-page ruling. "The expert's conclusory opinion that 'a simple and proper clinical neurological exam would have disclosed signs caused by the tumor growing in her brain and led to the earlier diagnosis ... with ... less damage,' was 'not supported with scientific data or other medical facts.'"


The panel said Harawitz's expert showed that he appropriately evaluated the infant's vomiting and referred her to Mount Sinai specialists Mima Chehade and Keith Breglio, both pediatric gastroenterologists who were also named as defendants in the suit. Similarly, the court cleared Chehade and Breglio of liability.


"The affidavit of plaintiffs' expert — a pediatrician, hematologist, and oncologist — was conclusory, speculative, and based upon facts outside the record, and relied on hindsight," it said.


Representatives for the parties did not immediately respond to requests for comment Tuesday.


In January 2016, the trial judge granted summary judgment in favor of Harawitz, rejecting an assertion by the plaintiffs' expert witness that the infant's neurological abnormality revealed itself in the form of months of vomiting, headaches, weight loss, muscle stiffness and arching of the back. The judge said aside from the vomiting, the other symptoms weren't apparent until a neurological exam was performed in March 2010.


"Since plaintiffs' expert's opinion is not supported by facts in record it is of no probative value," the judge said. "Moreover, the expert's speculative opinion that a simple neurological exam would more likely than not have led to an earlier diagnosis of the infant's brain tumor reflects areasoning back from the fact of injury to find negligence. Such hindsight reasoning is insufficient to defeat summary judgment."


The Levas are represented by Bruce G. Clark and Diane C. Cooper of Bruce G. Clark & Associates PC.


Harawitz is represented by Ari I. Bauer of Catania Mahon Milligram & Rider PLLC.


Mount Sinai Medical Center and its doctors are represented by Christopher Simone of Shaub Ahmudy Citrin & Spratt LLP.


The case is G.L. v. Alan Harawitz M.D. et al., case number 156318/12, in the New York Supreme Court Appellate Division, First Judicial Department.