On February 7, 2024, Judge L. Grace Spencer, of the Superior Court of New Jersey, Essex County, granted our motion for summary judgment.  The action sounded in medical malpractice and concerned claims of a failure to diagnose and properly treat a three-week old infant during an emergency room presentation.  The infant’s parents brought him to the hospital for complaints of decreased appetite and frequent vomiting.  Our client, a physician’s assistant, assessed the patient and found no abnormalities.  The infant was discharged home with instructions to follow up with the infant’s pediatrician.  Early the next day, the infant was found pulseless and transported to a hospital, where he was pronounced dead.  A medical examiner performed an autopsy and determined the cause of death was sudden infant death syndrome (SIDS). 

Gary Patterson and Samuel Youssof drafted the motion papers, arguing that plaintiff’s expert’s opinions were speculative and unsupported by the evidence.  In particular, the expert argued that the infant “possibly” died from sepsis, intestinal obstruction, seizures or dehydration.  However, the medical examiner testified at deposition that SIDS is a diagnosis of exclusion, meaning that a thorough examination ruled out other potential causes of death.

In opposition, plaintiff relied on the doctrine of increased risk, which permits a lesser burden of proof to establish causation where the injured plaintiff is suffering from a preexisting condition and the defendant failed to order requisite diagnostic testing.  Plaintiff argued that the infant had a pre-existing condition which would have been detected had the defendant ordered the appropriate diagnostic testing.  Plaintiff cited Gardner v. Pawliw, 150 N.J. 359, 375 (1996), and Scafidi v. Seiler, 191 N.J. 93 (1990), for the proposition that the lessened burden on causation applied. In reply, we argued that the doctrine of increased risk was inapplicable as there was no established pre-existing condition. Indeed, the autopsy ruled out pre-existing conditions as a cause of death. 

Appellate counsel, Adonaid Medina, argued the motion before Judge Spencer.  After hearing arguments, the judge agreed there was no evidence of a pre-existing condition to support the application of the increased risk doctrine.  She found that plaintiff’s reliance on Gardner was misplaced as the facts were distinguishable.  In stark contrast to the instant matter, an autopsy was performed in Gardner confirming that the infant died of established pre-existent umbilical cord and placental abnormalities.  Accordingly, Judge Spencer granted our motion for summary judgment, dismissing all claims against the physician’s assistant.