Kakar Kurtz v. Dr. Marie Lupica

Background

The plaintiffs are Shveta Kakar Kurtz, Daniel L. Kurtz, and their twin infant daughters, A.K. and M.K. A.K. was born prematurely. On August 8, 2018, the parents took A.K. to the emergency department at New York Presbyterian Hospital/Weill Cornell Medical Center after reporting that she had fallen. The hospital diagnosed a fall and head trauma, and a head scan did not show bleeding. About five and a half hours later, the parents took A.K. to Mount Sinai, where an x-ray showed a displaced fracture of the left femur. A skeletal survey also showed healing rib fractures, and medical professionals later reported suspected abuse or neglect to New York City’s Administration for Children’s Services (ACS).

ACS began child-removal proceedings in New York Family Court. The children were temporarily placed with relatives, and the parents’ contact with them was restricted or supervised for parts of the approximately nine-month proceeding. ACS later withdrew its removal petition, and the Family Court dismissed that proceeding with prejudice.

The parents then sued the City of New York, ACS officials and employees, Dr. Marie Lupica, Weill Cornell, and other defendants. After earlier motion practice, discovery, and other narrowing of the case, three claims remained: a federal civil-rights malicious-prosecution claim against ACS employees Yscary Rodriguez and Brenda Lawson; a state-law malicious-prosecution claim against the ACS defendants, the City, Dr. Lupica, and Weill Cornell; and a state-law medical-malpractice claim against Dr. Lupica and Weill Cornell based on the alleged failure to diagnose A.K.’s femur fracture.

Summary-judgment rulings

Summary judgment is judgment entered without a trial when the evidence shows that no reasonable jury could find for the opposing party on a legally important disputed fact. All defendants moved for summary judgment.

Claims against ACS officials and the City. The court granted the ACS defendants and the City summary judgment in full. The court held that the information available to ACS when it sought removal supplied probable cause—a reasonable factual basis—to believe that A.K. had been abused. That information included reports from Dr. Ranade and social worker Glass, concerns expressed by medical professionals at several institutions, the femur fracture, possible clavicle and healing rib fractures, and the circumstances surrounding the fracture’s diagnosis.

The parents argued that ACS had misstated or omitted information in its Family Court petition, including views from Drs. Grimm and Popper that did not support a finding of abuse. The court held that the parents had not produced evidence from which a reasonable jury could find that the omissions or statements were intentionally or recklessly false. The court also found that the use of “inclusive” rather than “inconclusive” regarding clavicle x-rays was not shown to be intentional, reckless, or made in bad faith. Because probable cause is a complete defense to malicious prosecution, the federal and state malicious-prosecution claims against the ACS defendants and the City could not proceed. The court separately held that Rodriguez and Lawson were entitled to qualified immunity, a legal protection for officials whose conduct did not violate clearly established law.

Claims against the Medical Defendants. The court granted the Medical Defendants’ motion for summary judgment on the state-law malicious-prosecution claim. The court did not need to definitively decide whether Dr. Lupica had sincerely believed her statement that A.K. had been abused. It held that the removal proceeding as a whole was supported by probable cause, including independent reports and evidence from other medical professionals. That probable cause defeated the malicious-prosecution claim against Dr. Lupica and Weill Cornell.

The court denied the Medical Defendants’ motion for summary judgment on the medical-malpractice claim. The defense expert, Dr. Eric D. Fornari, opined that A.K. received appropriate care, that the examination complied with the standard of care, and that the fracture was not present during the Weill Cornell visit. The plaintiffs’ expert, Dr. Michael Tunik, opined that the examination was inadequate, that the fracture should have been detected, and that the delay in diagnosis caused additional pain and may have worsened the fracture. The court found these competing expert opinions created material factual disputes about whether the standard of care was breached and whether any breach caused injury. Those disputes must be resolved by a factfinder at trial.

Other dispositions and result

The plaintiffs consented to dismissal of their claims against David Hansell and to dismissal of a constitutional family-integrity claim. The parties had also stipulated to dismissal of the individual claims against Dr. Shaykh, while the stipulation preserved potential liability by Weill Cornell for negligent acts or omissions by Dr. Shaykh during A.K.’s treatment. The court dismissed the unidentified John Doe defendants without prejudice because the plaintiffs had not served, substantiated, or pursued claims against them.

The court’s final order granted in full the ACS defendants and City’s motion for summary judgment; granted in part and denied in part the Medical Defendants’ motion for summary judgment, granting it on the state-law malicious-prosecution claim and denying it on the medical-malpractice claim; and directed that the case proceed to trial on the sole surviving medical-malpractice claim against Dr. Lupica and Weill Cornell.