Kenneth Oliver recently obtained summary judgment dismissal for our clients in a high exposure case pending in Supreme Court, Bronx County. This very complicated hematology case involved the death of a 20 year old female who left surviving a six month old infant. Before her death she experienced significant pain and suffering.
The case involved an alleged failure to diagnose atypical hemolytic uremic syndrome and to treat with Eculizumab (a new theory the plaintiffs set forth in an amended bill of particulars served without leave after the note of issue was filed). The plaintiff had originally alleged a failure to timely diagnose and treat TTP with plasmapheresis. After discovery was complete plaintiff amended the theory to assert that the decedent actually had atypical hemolytic uremic syndrome and should have received Eculizumab. We were successful in establishing that Eculizumab was not FDA approved for atypical hemolytic uremic syndrome at the time treatment took place and was not then the standard of care. The Supreme Court agreed with our argument that even if we had made the correct diagnosis, not administering this drug was not a departure and therefore not a proximate cause of death due to negligence.
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