Leston v. N.Y.-Presbyterian Hosp.

Megan M. Leston and J. Christian Leston as Parents and Natural Guardians of L.J.L.,¹ an Infant, and Megan M. Leston and J. Christian Leston, Individually, Plaintiffsv.New York-Presbyterian Hospital/ Weill Cornell Medical Center and Allison R. Boester, M.D., Defendants

The following papers numbered 1 through 8 read herein:Papers  Numbered:Notice of Motion and Affirmation (Affidavit) Annexed   1-3Affirmation (Affidavit) in Opposition                4-5, 6Reply Affirmation (Affidavit)              7, 8 In this action for medical malpractice, defendants New York-Presbyterian Hospital/Weill Cornell Medical Center (the Hospital) and Allison R. Boester, M.D. (collectively, defendants), move for summary judgment, pursuant to CPLR 3212, dismissing the complaint. Plaintiffs Megan M. Leston (the mother) and J. Christian Leston, individually and as parents and natural guardians of their child L.J.L. (collectively, plaintiffs), oppose.Plaintiffs seek to recover for extraordinary care and treatment required by their child, born with a debilitating birth defect, known as the Cri Du Chat (CDC) Syndrome,² that went undiscovered as a result of the alleged malpractice of Dr. Boester. According to plaintiffs’ verified bill of particulars, Dr. Boester (and the Hospital vicariously) departed from the standard of medical care in three distinct categories:First. Dr. Boester failed to appreciate that the mother’s pregnancy-associated plasma protein-A (PAPP-A) level, measured as part of the mother’s First Trimester Screening, was low at the 5 percent percentile³ and, as such, was indicative of a potential chromosomal defect;Second. Dr. Boester failed to perform invasive genetic testing in the form of either (1) chorionic villus sampling (CVS), an analysis of the placental tissue of the fetus, and/or (2) amniocentesis, an analysis of the amniotic fluid (collectively, the invasive genetic testing), either test, plaintiffs assert, would have revealed that the fetus was afflicted with the CDC Syndrome and, on the basis of which, an informed decision could have been made as to whether an abortion should be obtained; andThird. Dr. Boester failed to perform (or order the performance of) sonograms after the mother’s 32nd week of pregnancy, to rule out the fetal intrauterine growth restriction (IUGR) and to otherwise monitor the fetal intrauterine growth during pregnancy.Verified Bill of Particulars, dated May 21, 2015,