The underlying Albany County Supreme Court matter arises out of alleged negligence, medical malpractice, and lack of informed consent from medical treatment in 2016.

The plaintiff, a 25 year old female, presented to her OBGYN after a positive at-home pregnancy test. She had complaints of left-sided abdominal pain over two days and a history of two prior miscarriages. In-office testing confirmed a pregnancy of 5-6 weeks; however, an endovaginal ultrasound revealed no intrauterine pregnancy, but instead an enlarged and blood-filled left fallopian tube and potential cyst on the left ovary. Labs were conducted showing an elevated beta-hCG level of 1752 (a hormone produced in early pregnancy). Based on the evidence, plaintiff’s OBGYN suspected a ruptured left ectopic pregnancy and recommended a D&C which plaintiff presented for the same day at a local hospital.

During the procedure, neither an intrauterine pregnancy nor an ectopic pregnancy were found. Instead, the left ovary was found to have a large cyst and smaller complex cyst which was suspicious for ectopic pregnancy or a pregnancy in an unknown location. Plaintiff’s OBGYN recommended the administration of Methotrexate to inhibit pregnancy and prevent a life threatening rupture. The plaintiff declined and signed herself out of the hospital against medical advice. Her OBGYN recommended she follow-up with a medical provider in two days for repeat beta-hCG testing.

Plaintiff returned two days later and saw another physician at her OBGYN’s practice. Repeat testing showed a mild increase of beta-hCG levels. The OBGYN was concerned for ectopic pregnancy or pregnancy of an unknow location and recommended the plaintiff return to the hospital for administration of Methotrexate.  Plaintiff agreed and presented to a different hospital the following day. At that time, a radiologist read a transabdominal and endovaginal ultasound and found “no intrauterine gestational sac; ectopic pregnancy cannot be excluded.”  Her OBGYN discussed the results with the plaintiff, that a life threatening ectopic pregnancy could still be in an unknown location, and Methotrexare was recommended. The plaintiff agreed and provided written consent to the treatment. Methotrexate was administered at the hospital and the plaintiff was discharged.

Four days later, the plaintiff returned to her OBGYN for repeat beta-hCG testing which showed minimal increased levels despite the administration of Methotrexate. A repeat ultrasound was performed revealing an intrauterine pregnancy of approximately five weeks and a mass on her left ovary. The ultrasound report concluded “heterotopic gestation cannot be excluded.” (the presence of two simultaneous pregnancies – one intrauterine, one ectopic). There was not fetal heartbeat reported. The results were discussed with the plaintiff and her husband and they were advised of the potential for a miscarriage or fetal abnormalities due to the prior dose of Methotrexate. Plaintiff decided to seek treatment from another OBGYN who, two weeks later, performed a D&C after no fetal heartbeat was detected on ultrasound.

In their Complaint, the plaintiffs alleged negligence, medical malpractice, and lack of informed consent alleging the defendants’ care caused the loss of a viable fetus. The plaintiffs sued both OBGYNS and their medical practice (represented by MCLC’s Mackenzie Monaco and Mackenzie Kesterke), both hospitals, and the radiologist who read the transabdominal and endovaginal ultasound in the hospital (all separately represented).

After the conclusion of discovery and depositions, all of the defendants moved the Court for summary judgment, requesting that the plaintiffs’ Complaint be dismissed.

The Motions were heard by the Hon. Christina L. Ryba, Supreme Court Justice, Albany County, who issued a 26 page Decision granting summary judgment and dismissing the Complaint against Ms. Kesterke’s clients, as well as all other defendants.

With respect to our clients, Judge Ryba concluded that, through our exhibits of medical records, deposition testimony, and the Affidavit of an obstetrical and maternal fetal expert witness, that we met the burden of proof that no negligence or medical malpractice took place.  Specifically, the judge highlighted our expert’s opinion that there was no evidence in the record to suggest the plaintiff had a viable pregnancy and that no heartbeat was ever detected during the time the plaintiff treated with the defendants. Our expert opined that all medical findings were consistent with a diagnosis of a pregnancy in an unknown location presenting a significant risk to the plaintiff and, therefore, the course of treatment by both OBGYNs was well within the applicable standards of medical care. Regarding plaintiff’s claim of lack of informed consent, the Court found that the evidence we presented in our motion showed evidence that the plaintiff was completely advised of the alternatives, risks, and benefits of treatment prior to her consenting in writing to the laparoscopy, D&C, and administration of Methotrexate. Further, we pointed to and the Court referenced plaintiff’s own deposition testimony which revealed that she was advised of the procedures and medications, that her pregnancy may not be ectopic, and that the procedure could end a pregnancy of any nature.

The burden of proof then shifted to the plaintiffs who submitted opposition to the motions with their own expert’s affidavit. Judge Ryba found that the expert’s education, training, experience, and practice of medicine all occurred outside of New York and there was no foundational basis for the expert’s assertions that he is familiar with the standards of care applicable in New York. Further, the judge found the expert’s affidavit substantially insufficient to withstand summary judgment because the opinions expressed were conclusory, speculative, and based on misstatements of medical facts citing multiple occurrences of misstatements of fact within the affidavit. The Court lastly found that the remainder of the expert’s affidavit were too generalized and conclusory to create a material issue of fact to defeat summary judgment.

About Mackenzie Kesterke

Mackenzie Kesterke is a litigator practicing in the areas of general litigation and personal injury, construction, product liability, and professional liability specifically medical malpractice. She practices in state, federal, and appellate courts throughout New York State. She is co-chair of the Albany Bar Association’s Young Lawyers Committee. Mackenzie can be reached at (518) 818-6148 and at

About Mackenzie Monaco

Mackenzie Monaco maintains an active litigation practice representing a wide range of clients, from individuals and local businesses to national corporations, in state and federal courts throughout New York.  Mackenzie delivers counseling, risk management, and tort defense services to the hospitality and retail, construction, insurance, and health care industries. She also maintains an active trusts and estates practice. She is Vice-Chair of ALFA’s Hospitality & Retail Practice Group. Mackenzie can be reached at and (518) 675-7739.

About Monaco Cooper Lamme & Carr, PLLC

MCLC is a law firm dedicated to providing exceptional legal services and unparalleled value while building rewarding and lasting relationships with our clients. Our team includes seasoned trial and transactional attorneys who are nationally recognized industry and legal authorities in a wide range of practices and are supported by a remarkable professional support staff. For more information on our firm, visit or contact our Marketing Director, Stacy A. Smith at